EXHIBIT D-10
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (the "Agreement") made as of this ____th day
of ________________, 2013 by and between Xxxxxx Associates Inc., a California
corporation with its principal place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxxx, XX 00000-0000 (the "Adviser"), and Massachusetts Financial
Services Company, d/b/a MFS Investment Management,. a Delaware corporation with
its principal place of business at 000 Xxxxxxxxxx Xxxxxx, 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 _________ __, 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 and other investments 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. 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
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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, 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. 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. 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 procedures approved by the Board or the Adviser and provided to the
Sub-Adviser. 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. 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 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 or the Fund 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 following.
(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
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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 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
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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
requested by the Adviser, which may include an electronic format, upon the
termination of this Agreement and shall be available without delay during
any day the Trust is open for business.
(e) HOLDINGS INFORMATION AND PRICING. The Sub-Adviser shall provide
regular reports regarding the Fund's holdings, 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 provide reasonable assistance to the
Adviser, the Funds, or the pricing agent(s) of the Funds in determining or
confirming the value of any portfolio securities or other assets of the
Fund for which the Adviser, the Funds, or pricing agent(s) seeks assistance
from the Sub-Adviser or identifies for review by the Sub-Adviser. Such
assistance shall include using reasonable efforts upon request from the
Adviser, Fund, or pricing agent to arrange for the provision of valuation
information or a price from parties independent of the Sub-Adviser for each
security or other investment/asset in the Fund for which market prices are
not readily available. The Sub-Adviser agrees to notify the Adviser if the
Sub-Adviser becomes aware or reasonably believes that the price of any
security held by the Fund in the portion of the Fund's portfolio managed by
the Sub-Adviser may not reflect an accurate price or fair value. The
Sub-Adviser shall not be liable for the accuracy of the valuation of any
security held by a Fund.
(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
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.
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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 immediately notify the Adviser and the Trust 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 immediately 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. 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
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
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member of the plaintiff class by reason of the Fund's ownership of shares
in the defendant) 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; or (iii) the Sub-Adviser becomes a party to
any legal proceedings that the Sub-Adviser believes are reasonably likely
to have a material adverse effect on the Fund or the ability of the
Sub-Adviser to provide investment advisory services pursuant to this
Agreement.
(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 a 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, 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.
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(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 price and most favorable execution
available under the circumstances. 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.
(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.
(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.
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.
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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.
(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 II as most recently updated and will, promptly after filing any
amendment to its Form ADV with the Commission or updating its Part II,
furnish a copy of such amendments or updates to the Trust. The information
contained in the Sub-Adviser's Form ADV 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.
(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, 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" in connection with its services to the
Trust and the Trust and the Adviser have the right to use the name
"Massachusetts Financial Services Company" or "MFS Investment Management"
in connection with the management and operation of a Fund. The Sub-Adviser
is not aware of any threatened or existing actions,
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claims, litigation or proceedings that would adversely affect or prejudice
the rights of the Sub-Adviser or the Trust to use the name "Massachusetts
Financial Services Company" or "MFS Investment Management."
(e) INSURANCE. The Sub-Adviser maintains errors and omissions
insurance coverage in an appropriate amount and shall provide prior written
notice to the Trust of any material changes in its insurance policies or
insurance coverage.. 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, such as a certificate
of 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.
8. 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.
9. INDEPENDENT CONTRACTOR. 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
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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.
10. 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. 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.
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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 the
Adviser 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.
12. 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 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.
13. LIABILITY OF THE SUB-ADVISER.
(a) 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 applicable to or pertaining to the Sub-Adviser
as set forth in Section 7(c) above.
(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 in writing to the
Sub-Adviser; or (ii) applicable law, including but not limited to the 1940
Act and 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 by reason of any action or omission of the Sub-Adviser,
unless acting at the direction of the Adviser) (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
11
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 breach by the Sub-Adviser of this Agreement or of the
representations and warranties made by the Sub-Adviser herein; (ii) any
Improper Investment; or (iii) any untrue or alleged untrue statement of a
material fact contained in any Disclosure Document or the omission or
alleged omission from a Disclosure Document of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon
information furnished to the Adviser or the Trust by the Sub-Adviser for
use therein; or (iv) the Sub-Adviser's willful misfeasance, bad faith, or
gross negligence in the performance of its obligations and duties under
this Agreement; 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 (collectively, the
"Sub-Adviser Indemnitees") 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
breach by the Adviser of this Agreement or of 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, or by reason of its reckless
disregard of its obligations and duties under this Agreement; provided
however, that the Adviser's obligations hereunder shall be reduced to the
extent that the claim against, or the losses, damages or liabilities
experienced by the Sub-Adviser, is caused by or is otherwise directly
related to the Sub-Adviser's own willful misfeasance, bad faith or gross
negligence, or to the reckless disregard of its duties under this
Agreement.
14. CONFIDENTIALITY. The Adviser and the Sub-Adviser shall keep
confidential any and all materials and information furnished by the other party
in connection with this Agreement or otherwise obtained in connection with the
non-disclosing party's duties hereunder and shall not disclose any such
information or advice to third parties except as otherwise contemplated herein.
The parties agree that the provisions of this section shall not apply to any
information that is: (a) independently developed by the receiving party,
provided the receiving party can satisfactorily demonstrate such independent
development with appropriate documentation; (b) known to the receiving party
prior to disclosure by the disclosing party; (c) lawfully disclosed to the
receiving party by a third party not under a separate duty of confidentiality
with respect thereto to the
12
disclosing party; (d) expressly required or requested by applicable federal or
state regulatory authorities; (e) required to be disclosed under applicable
law, regulatory inquiry or judicial process; or (f) otherwise publicly
available through no fault or breach by the receiving party.
15. 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.
16. 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.
17. 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 control of the Sub-Adviser within a reasonable time prior to such
change being effected.
18. 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.
19. 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.
20. 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.
21. 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 set forth below (or at such
address, number or electronic address for a party as shall be specified by like
notice).
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If to the Sub-Adviser, to:
Massachusetts Financial Services Investment Management
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Facsimile:
If to the Adviser, to:
Xxxxxx Associates
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
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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:______________________________________
Name:
Title:
MASSACHUSETTS FINANCIAL SERVICES COMPANY D/B/A MFS INVESTMENT MANAGEMENT
By:______________________________________
Name:
Title:
15
SCHEDULE A
TO THE
SUB-ADVISORY AGREEMENT
DATED __________________, 2013 BETWEEN
XXXXXX ASSOCIATES INC.
AND
MASSACHUSETTS FINANCIAL SERVICES COMPANY
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 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 -- Active Large Cap [____] bps
Value Sub-Strategy
KP International Equity Fund -- Active [____] bps
International Equity Sub-Strategy
16
