Exhibit (d)(8)
FIRST FOCUS FUNDS, INC.
INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT executed this ____ day of April 2007, by and between the First
National Bank of Omaha, a national banking association (the "Adviser"), and
Riverbridge Partners, LLC, a Minnesota limited liability company (the
"Sub-Adviser").
WHEREAS, the Adviser is the investment adviser for the First Focus Funds,
Inc., an open-end management investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act") (the "Company"), pursuant to an
Investment Advisory Agreement dated December 20, 1994, as amended between the
Adviser and the Company (the "Advisory Agreement"); and
WHEREAS, the Adviser desires to retain the Sub-Adviser as its agent to
furnish investment advisory services for the First Focus Large Cap Growth Fund,
a diversified investment portfolio of the Company (the "Fund").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Appointment. The Adviser hereby appoints the Sub-Adviser to provide
-----------
certain sub-investment advisory services to the Fund in furtherance of the
Advisory Agreement for the period and on the terms set forth in this Agreement.
The Sub-Adviser accepts such appointment and agrees to furnish the services
herein set forth for the compensation herein provided.
2. Management. Subject always to the supervision of the Company's Board of
----------
Directors (the "Board") and the Adviser, the Sub-Adviser will furnish an
investment program including investment research, advice and supervision in
respect of, and make investment decisions for, all assets of the Fund and place
all orders for the purchase and sale of securities, all on behalf of the Fund.
In the performance of its duties, the Sub-Adviser will satisfy its fiduciary
duties to the Fund (as set forth in Section 9, below), and will monitor the
Funds' investments. The Sub-Adviser and Adviser will each make its respective
officers and employees available to the other from time to time at reasonable
times to review investment policies of the Fund and to consult with each other
regarding the investment affairs of the Fund. The Sub-Adviser shall also make
itself reasonably available to the Board at such times as the Board shall
request.
1
The Sub-Adviser agrees that it will:
(a) Use the same skill and care in providing such services as it uses in
providing services to fiduciary accounts for which it has investment
responsibilities;
(b) Place orders pursuant to its investment determinations for the Fund
either directly with the issuer or with any broker or dealer. In placing orders
with brokers or dealers, the Sub-Adviser will attempt to obtain the best
combination of prompt execution of orders in an effective manner and at the most
favorable price. Consistent with this obligation, when the execution and price
offered by two or more brokers or dealers are comparable, the Sub-Adviser may,
in its discretion, purchase and sell portfolio securities to and from brokers
and dealers who provide the Sub-Adviser with research advice and other services.
In no instance will portfolio securities be purchased from or sold to the
Adviser, the Sub-Adviser, Bisys Fund Services, Limited Partnership or any
affiliated person of either the Company, Adviser, Bisys Fund Services, Limited
Partnership or the Sub-Adviser, except as may be permitted under the 1940 Act;
(c) Report regularly to the Adviser and will make appropriate persons
available for the purpose of reviewing at reasonable times with representatives
of the Adviser and the Board the management of the Fund, including, without
limitation, review of the general investment strategies of the Fund,
respectively, the performance of the Fund in relation to standard industry
indices, interest rate considerations and general conditions affecting the
marketplace and will provide various other reports from time to time as
reasonably requested by the Adviser;
(d) Maintain books and records with respect to the Company's securities
transactions and will furnish the Adviser and Board such periodic and special
reports as the Board or the Adviser may request, including economic, operational
and investment data and reports, including without limitation all information
and materials reasonably requested by or requested to be delivered to the Board
pursuant to Section 15(c) of the 1940 Act;
(e) Act upon instructions from the Adviser not inconsistent with the
fiduciary duties hereunder;
(f) Submit such reports relating to the valuation of the Fund's assets and
to otherwise assist in the calculation of the net asset value of shares of the
Fund as may reasonably be requested;
2
(g) Provide to Adviser for regulatory filings and other appropriate uses
materially accurate and complete information relating to Sub-Adviser as may be
reasonably requested by Adviser from time to time; and
(g) Treat confidentially and as proprietary information of the Company all
such records and other information relative to the Company maintained by the
Sub-Adviser, and will not use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Company, which approval
shall not be unreasonably withheld and may not be withheld where the Sub-Adviser
may be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities, or
when so requested by the Company.
3. Further Obligations. In all matters relating to the performance of this
-------------------
Agreement, Sub-Adviser shall act in conformity with (i) the provisions of the
Company's Agreement and Articles of Incorporation, as filed with the Secretary
of State of Nebraska on October 12, 1994, and all amendments thereto or
restatements thereof (such Declaration, as presently in effect and as it shall
from time to time be amended or restated, is herein called the "Articles"), (ii)
the Company's By-Laws, as amended from time to time, (iii) the stated investment
objectives, policies and restrictions of the Fund contained in the Fund's
Registration Statement on Form N-1A under the Securities Act of 1933, as amended
(the "1933 Act") (File No. 33-85982) and under the 1940 Act (File No. 811-08846)
as filed with the Securities and Exchange Commission ("SEC") and all amendments
thereto insofar as such Registration Statement and such amendments relate to the
Fund (the "Registration Statement"), (iv) the written policies, procedures and
guidelines of the Fund, (v) the written instructions and directions of the Board
and the Adviser, and (vi) the requirements of the 1940 Act and the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and all applicable rules
and regulations of the SEC pertaining to its investment advisory activities.
Adviser agrees to provide to Sub-Adviser all such materials provided in (i) --
(iv) above as they may be amended from time to time, and if practicable, prior
to the time any such amendments become effective.
4. Fund Securities. The Sub-Adviser shall have the right to execute and
---------------
deliver, or cause its nominee to execute and deliver, all proxies and notices of
meetings and other notices affecting or relating to the securities of the Fund.
The Sub-Adviser shall provide Adviser with
3
such assistance and advice as Adviser may reasonably request as to the manner in
which to exercise, on behalf of the Fund, such voting rights, subscription
rights, rights to consent to corporate action and any other rights pertaining to
the Fund's assets that may be exercised, in accordance with any policy
pertaining to the same that may be adopted or agreed to by the Fund's Board of
Directors, so that Adviser may exercise such rights, or, in the event that the
Fund retains the right to exercise such rights, to furnish the Fund with advice
as may reasonably be requested as to the manner in which such rights should be
exercised.
5. Books and Records. In compliance with the requirements of Rule 31a-3
-----------------
under the 1940 Act, the Sub-Adviser hereby agrees that all records which it
maintains for the Fund, on behalf of the Company are the property of the Company
and further agrees to surrender promptly to the Company any of such records upon
the Company's request. The Sub-Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-1 under the 1940 Act.
6. Expenses. During the term of this Agreement, the Sub-Adviser will pay
--------
all expenses incurred by it in connection with its activities under this
Agreement, but excluding the cost of securities (including commission, issue and
transfer taxes, if any) purchased for or on behalf of the Fund.
7. Compensation. For the services to be provided by the Sub-Adviser
------------
pursuant to this Agreement, the Adviser will pay the Sub-Adviser, and the
Sub-Adviser agrees to accept as full compensation thereof, a sub-advisory fee at
an annual rate of 0.45% on the average daily net assets of each Fund, paid at
the same time and in the same manner as the Fund pays the Adviser its advisory
fee pursuant to the Advisory Agreement. This fee will be computed daily and paid
to the Sub-Adviser quarterly. The Sub Adviser may agree to waive a portion of
their fee. Any fee waiver by the Sub Adviser is voluntary and will be mutually
agreed upon with the Adviser. For any month during which this Agreement becomes
effective and the month during which it terminates, however, there shall be an
appropriate proration of the fee payable for such month based on the number of
calendar days of such month during which this Agreement is effective.
8. Services to Others. The Adviser understands, and has advised the
------------------
Company's Board of Directors, that the Sub-Adviser now acts, and may in the
future act, as an investment adviser to fiduciary and other managed accounts,
and as investment adviser, sub-investment adviser, and/or administrator to other
investment companies. The
4
Adviser has no objection to the Sub-Adviser's acting in such capacities,
provided that whenever the Fund and one or more other investment companies
advised by the Sub-Adviser have available funds for investment, investments
suitable and appropriate for each will be allocated in accordance with a formula
believed by the Sub-Adviser to be equitable to each company. In addition, the
Adviser understands that the persons employed by the Sub-Adviser to assist in
the Sub-Adviser's duties under this Agreement will not devote their full time to
such service and nothing contained in this Agreement will be deemed to limit or
restrict the right of the Sub-Adviser or any of its affiliates to engage in and
devote time and attention to other businesses or to render services of whatever
kind or nature.
9. Standard of Care. The Sub-Adviser shall discharge its duties under this
----------------
Agreement with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of a like character
and with like aims. The federal securities laws impose liabilities under certain
circumstances on persons who act in good faith, and therefore nothing herein
shall in any way constitute a waiver or limitation of any rights which the
Adviser may have against Sub-Adviser under any federal securities laws based on
negligence and which cannot be modified in advance by contract.
10. Limitation of Liability. The Sub-Adviser shall not be liable for any
-----------------------
error of judgment or mistake of law or for any act or omission in carrying out
its duties hereunder, except a loss resulting from willful misfeasance, bad
faith or negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations and duties hereunder. Each of the Adviser
and Sub-Advisor agrees to indemnify the other and hold it harmless from and
against any and all actions, suits and claims, whether groundless or otherwise,
and from and against any and all losses, damages, costs, charges, reasonable
counsel fees and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) (collectively, "Damages") arising directly or
indirectly out of the indemnifying party's willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of its reckless
disregard of its obligations and duties hereunder. Sub-Adviser agrees that it
shall be liable to Adviser for all Damages incurred by Adviser as a result of
any material inaccuracies or omissions in the information provided by
Sub-Adviser to Adviser pursuant to Section 2(g), provided, however, that
Sub-Adviser shall not be liable to the extent that any Damages are based upon
inaccuracies or omissions made in reliance upon information furnished by Adviser
to Sub-Adviser.
5
11. Duration and Termination.
------------------------
(a) This Agreement will become effective as of the date hereof provided
that it (i) is approved by vote of a majority of the outstanding voting
securities of the Fund in accordance with the requirements under the 1940 Act,
and (ii) the Registration Statement is effective; and, unless sooner terminated
as provided herein, will continue in effect until June 30, 2008.
Thereafter, if not terminated, this Agreement will continue in effect for
the Fund for successive periods of twelve (12) months, each ending on the day
preceding the anniversary of the Agreement's effective date of each year,
provided that such continuation is specifically approved at least annually (x)
--------
by the vote of a majority of those members of the Company's Board of Directors
who are not interested persons of the Company, the Sub-Adviser, or the Adviser,
cast in person at a meeting called for the purpose of voting on such approval,
and (y) by the vote of a majority of the Company's Board of Directors or by the
vote of a majority of all votes attributable to the outstanding shares of the
Fund.
(b) Notwithstanding the foregoing, this Agreement may be terminated as to
the Fund at any time, without the payment of any penalty, on sixty (60) days'
written notice by the Board or the shareholders of the Fund (acting by a vote of
at least a majority of its outstanding voting securities), the Adviser or by the
Sub-Adviser. This Agreement will immediately terminate in the event of its
assignment.
(c) Notwithstanding the foregoing, this Agreement will terminate
automatically if the Advisory Agreement is terminated.
(d) Notwithstanding the foregoing, this Agreement may also be terminated
by the Adviser or the Fund: (i) upon a material breach by Sub-Adviser of any of
the representations and warranties set forth in Section 17, if such breach shall
not have been cured within a 20 day period after notice of such breach, or (ii)
if Sub-Adviser becomes unable to discharge its duties and obligations under this
Agreement.
(e) Notwithstanding the foregoing, this Agreement may also be terminated
by Sub-Adviser upon a material breach by Adviser, if such breach shall not have
been cured within a 20 day period after notice of such breach.
12. Amendment of this Agreement. This Agreement may be amended by the
---------------------------
parties only in a written instrument signed by the parties to the Agreement and
only if such amendment is specifically
6
approved (a) by a majority of the Board, including a majority of its directors
who are not interested persons of the Fund or the Adviser, Sub-Adviser or any of
their respective affiliates, and (b) if required by applicable law, by the
affirmative vote of a majority of the outstanding voting securities of the Fund.
13. Multiple Originals. This Agreement may be executed in two or more
------------------
counterparts, each of which when so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same document.
14. Custody. All securities and other assets of the Fund shall be
-------
maintained with a custodian designated by the Adviser. Sub-Adviser shall have no
responsibility or liability with respect to any custodial function.
15. Notices. Any notice required to be given by either party shall be in
-------
writing and may be served on or delivered to the party to be served at the
address given in this Agreement or as duly notified from time to time. Notice
may be delivered or sent by facsimile and shall be deemed to arrive at the time
when in the normal course of delivery it should have arrived save that in the
case of notice sent by mail it shall only be deemed to have arrived upon its
actual receipt.
16. Adviser Representations and Warranties. The Adviser represents and
--------------------------------------
warrants to Sub-Adviser that (a) the Adviser's entry into this Agreement on
behalf of the Fund and the performance of it and the Fund of their respective
obligations hereunder has been duly authorized by the Adviser, and to the best
of the Adviser's knowledge, by the Fund and the Company and will not cause the
Adviser, and to the best of the Adviser's knowledge, the Fund or the Company, to
be in violation of the 1940 Act or any other applicable law or regulation, (b) a
division of the Adviser is registered as an investment adviser with the SEC and
is in compliance with all applicable rules and regulations of the SEC pertaining
to its investment advisory activities, (c) to the best of the Adviser's
knowledge, the Fund is the legal owner of all of its assets, and (d) the Adviser
is empowered to enter into this Agreement without the consent or authority of
any other party or, alternatively, has at the date hereof obtained such consents
as may be necessary to permit the making of this Agreement.
17. Sub-Adviser Representations and Warranties. The Sub-Adviser represents
------------------------------------------
and warrants to Adviser that it (a) is registered as an investment adviser under
the Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect, (b) is not
7
prohibited by either the 1940 Act or the Advisers Act from performing the
services contemplated by this Agreement, (c) has met, and will continue to meet
for so long as this Agreement remains effective, any other applicable federal or
state requirements, or the applicable requirements of any regulatory or industry
self-regulatory organization necessary to be met in order to perform the
services contemplated by this Agreement, (d) is empowered to enter into this
Agreement without the consent or authority of any other party or, alternatively,
has at the date hereof obtained such consents as may be necessary to permit the
making of this Agreement, and (e) will immediately notify Adviser of the
occurrence of any event that would disqualify it from serving as an investment
adviser to an investment company pursuant to Section 9(a) of the 1940 Act or
otherwise, and of the institution of any administrative, regulatory or judicial
proceeding against it that could have a material adviser effect upon its ability
to fulfill its obligations under this Agreement.
18. Third Party Beneficiary. The parties expressly acknowledge and agree
-----------------------
that the Company is a third party beneficiary of this Agreement and that the
Company shall have the full right to xxx upon and enforce this Agreement in
accordance with its terms as if it were a signatory hereto. Any oversight,
monitoring or evaluation of the activities of Sub-Adviser by Adviser, the
Company or the Fund shall no diminish or relieve in any way the liability of
Sub-Adviser for any of its duties and responsibilities under this Agreement.
19. Notices. Any notice or other communication required to be given
-------
pursuant to this Agreement shall be deemed duly given if delivered personally or
by overnight delivery service or mailed by certified or registered mail, return
receipt requested and postage prepaid, or sent by facsimile addressed to the
parties at their respective addresses set forth below, or at such other address
as shall be designated by any party in a written notice to the other party.
(a) To Adviser at:
(b) To Sub-Adviser at:
(c) To the Company at:
20. Certain Definitions. The terms "affiliated," "vote of a majority of
-------------------
the outstanding voting securities," "assignment." "approved at least annually,"
and "interested persons" shall have the respective meanings ascribed to them in
the 1940 Act, as now in effect or hereafter amended, and the rules and
regulations thereunder, subject to such orders, exemptions and interpretations
as may be issued by the SEC under the 1940 Act and as may be then in effect.
8
21. Miscellaneous. The captions in this Agreement are included for
-------------
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement is held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement will not be affected
thereby. This Agreement will be binding upon and shall inure to the benefit of
the parties hereto and will be governed by the laws of the state of Nebraska
without giving effect to such state's conflicts of laws provisions, and the 1940
Act. To the extent that the applicable laws of the state of Nebraska conflict
with the applicable provisions of the 1940 Act, the latter shall control.
Sub-Adviser shall notify the Adviser of any changes in its members or managers
within a reasonable time.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
FIRST NATIONAL BANK OF OMAHA
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Riverbridge Partners, LLC
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
9
