INVESTMENT SUB-ADVISORY AGREEMENT
Exhibit (d)(10)
This Investment Sub-Advisory Agreement (“Agreement”) is made and entered into as of the 14th day of March, 2024 by and among the OBP CAPITAL, LLC, a Delaware limited liability company (the “Advisor”) and RNC CAPITAL MANAGEMENT, LLC d/b/a XXXXXX CAPITAL MANAGEMENT, a
California limited liability company (the “Sub-Advisor”).
WHEREAS, the Advisor acts as the investment advisor to the Xxxxxx Capital Taxable Quality Intermediate ETF and
Xxxxxx Capital Municipal Quality Intermediate ETF (the “Funds”), each a series of the Spinnaker ETF Series (the “Trust”), pursuant to that certain Investment Advisory Agreement (the “Advisory Agreement”) dated March 14, 2024, as amended, between the
Advisor and the Trust with respect to the Funds;
WHEREAS, the Trust is an open-end management investment company, registered under the Investment Company Act of
1940, as amended (the “Act”);
WHEREAS, the Trust is authorized to issue separate series, each of which will offer a separate class of shares of
beneficial interest, each series having its own investment objective or objectives, policies, and limitations;
WHEREAS, the Trust offers shares in multiple series, may offer shares of additional series in the future, and
intends to offer shares of additional series in the future;
WHEREAS, each of the Advisor and Sub-Advisor is registered as an investment advisor under the Investment Advisers
Act of 1940, as amended (the “Advisers Act”), and engages in the business of asset management; and
WHEREAS, the Advisor, subject to the approval of the Board of Trustees of the Trust (“Trustees”), desires to retain
the Sub-Advisor to assist the Advisor in rendering certain investment management services to the Funds, and the Sub-Advisor is willing to render such services;
WHEREAS, the Trustees, including a majority of those Trustees who are not parties to this Agreement or interested
persons (as such term is defined in the 1940 Act) of any such party, by a vote cast in person at a meeting called for the purpose of voting on such approval have approved this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1. Engagement and Obligations of Sub-Advisor. The Advisor hereby appoints and retains the Sub-Advisor to act as a sub-advisor to the Advisor and to provide the following services for the period and on the terms and conditions set forth in this Agreement.
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(a)
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Services. The Sub-Advisor agrees to perform the following services (the “Services”):
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(i)
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subject to the supervision of the Trustees and the Advisor, the Sub-Advisor will provide a continuous investment program for the Funds’ portfolio and determine the composition of the
assets of the Funds’ portfolio, including determination of the purchase, retention, or sale of the securities, cash, and other investments contained in the Funds’ portfolio;
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(ii)
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select brokers and dealers to execute the purchase and/or sale, consistent with the Sub-Advisor's duty to seek "best execution" on behalf of the Funds, of portfolio securities of the
Funds;
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(iii)
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provide the Advisor and the Funds with such records concerning the Sub-Advisor’s activities under this Agreement as the Advisor and the Funds may request from time to time or as
otherwise required by applicable law; and
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(iv)
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render regular reports to the Advisor and the Trustees concerning the Sub-Advisor’s discharge of the foregoing responsibilities.
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The Sub-Advisor shall discharge the foregoing responsibilities subject to the control of the Trustees and officers of the Funds and in compliance with (i) such policies as the
Trustees may from time to time establish; (ii) the Funds’ objectives, policies, and limitations as set forth in its prospectus (“Prospectus”), as the same may be amended from time to time; and (iii) with all applicable laws and regulations. All
Services to be furnished by the Sub-Advisor under this Agreement may be furnished through the medium of any directors, officers, or employees of the Sub-Advisor or through such other parties as the Sub-Advisor may determine from time to time.
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(b)
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Expenses and Personnel. The Sub-Advisor agrees, at its own expense or at the expense of one or more of its affiliates, to render the Services and
to provide the office space, furnishings, equipment, and personnel as may be reasonably required to perform the Services on the terms and for the compensation provided herein.
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(c)
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Books and Records. All books and records prepared and maintained by the Sub-Advisor for the Advisor and/or the Funds under this Agreement shall
be the property of the Advisor and/or the Funds and, upon request therefor, the Sub-Advisor shall surrender to the appropriate party such of the books and records so requested.
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2. Compensation of the Sub-Advisor. The
Advisor will pay to the Sub-Advisor an investment advisory fee (the “Fee”) equal to an annualized rate of 0.15% of the average daily net assets of each Fund. The Fee shall be calculated as of the last business day of each month based upon the
average daily net assets of the Funds determined in the manner described in the Funds’ Prospectus and/or Statement of Additional Information and shall be paid to the Sub-Advisor by the Advisor on a quarterly basis within a specified period of time at
the conclusion of each quarter as agreed to between the Advisor and Sub-Advisor. The Funds will not pay a direct fee to the Sub-Advisor.
3. Status of Investment Sub-Advisor.
The services of the Sub-Advisor to the Advisor, and the Funds are not to be deemed exclusive, and the Sub-Advisor shall be free to render similar services to others (including, without limitation, any other registered investment management company,
or series thereof) so long as its Services to the Funds are not impaired thereby. The Sub-Advisor shall be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized, have no authority to act for or represent
the Advisor or the Funds in any way or otherwise be deemed an agent of the Advisor or the Funds. Nothing in this Agreement shall limit or restrict the right of any director, officer, or employee of the Sub-Advisor, who may also be a trustee,
officer, or employee of the Advisor or the Funds, to engage in any other business or to devote his or her time and attention in part to the management or other aspects of any other business, whether of a similar nature or a dissimilar nature.
4. Permissible Interests. Trustees,
agents, and stockholders of the Funds and the Advisor are or may be interested in the Sub-Advisor (or any successor thereof) as directors, partners, officers, or stockholders, or otherwise; and directors, partners, officers, agents, and stockholders
of the Sub-Advisor are or may be interested in the Advisor or the Funds as trustees, directors, officers, stockholders or otherwise; and the Sub-Advisor (or any successor) is or may be interested in the Advisor or the Funds as a stockholder or
otherwise.
5. Limits of Liability; Indemnification.
The Sub-Advisor assumes no responsibility under this Agreement other than to render the Services called for hereunder. The Sub-Advisor shall not be liable for any error of judgment or for any loss suffered by the Advisor or the Funds in connection
with the matters to which this Agreement relates, except a loss resulting from a breach of fiduciary duty with respect to receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth
in Section 36(b)(3) of the Act) or a loss resulting from willful misfeasance, bad faith, or gross negligence on its part in the performance of, or from reckless disregard by it of its obligations and duties under, this Agreement. It is agreed that
the Sub-Advisor shall have no responsibility or liability for the accuracy or completeness of the Trust’s registration statement under the Act or the Securities Act of 1933, as amended (“1933 Act”), except for information supplied by the Sub-Advisor
for inclusion therein.
The Sub-Advisor will indemnify the Advisor and its directors, members, partners, officers, employees, and agents (“Advisor Parties”) against and hold the
Advisor Parties harmless from any and all losses, claims, damages, liabilities, or expenses (including reasonable counsel fees and expenses) arising from any claim, demand, action, or suit which results from the Sub-Advisor Parties’ (as such term is
defined immediately below) willful misfeasance, bad faith, gross negligence, or reckless disregard of the Sub-Advisor's obligations and duties under this Agreement.
The Advisor will indemnify the Sub-Advisor and its directors, members, partners, officers, employees, and agents (“Sub-Advisor Parties”) against and hold the Sub-Advisor Parties
harmless from any and all losses, claims, damages, liabilities, or expenses (including reasonable counsel fees and expenses) arising from any claim, demand, action, or suit which results from the Advisor Parties' willful misfeasance, bad faith, gross
negligence, or reckless disregard of the Advisor's obligations and duties under this Agreement.
6. Term. This Agreement shall remain in
effect for an initial term of two (2) years from the date the Funds commence operations, and from year to year thereafter provided such continuance is approved at least annually by the vote of a majority of the trustees of the Funds who are not
“interested persons” (as defined in the Act) of the Funds, which vote must be cast in person at a meeting called for the purpose of voting on such approval; provided, however, this Agreement may be terminated at any time on at least
sixty (60) days prior written notice to the Sub-Advisor, without the payment of any penalty, (i) by vote of the Trustees or (ii) by vote of a majority of the outstanding voting securities (as defined in the Act) of the Funds; and provided, further,
that this Agreement may be terminated at any time by the Advisor, on at least sixty (60) days prior written notice to the Sub-Advisor, and subject to certain termination conditions as agreed to between the Advisor and Sub-Advisor. The Sub-Advisor
may terminate this Agreement at any time, without the payment of any penalty, on at least sixty (60) days prior written notice to the Advisor and the Funds. This Agreement will automatically and immediately terminate in the event of its assignment
(as defined in the Act) or upon the termination of the Advisory Agreement.
7. Prohibited
Conduct. The Sub-Advisor may not consult with any other sub-advisor of the Trust concerning transactions in securities or other assets for any investment portfolio of the Trust, including the Funds, except that such consultations are
permitted between the current and successor sub-advisor of the Funds in order to effect an orderly transition of portfolio management duties so long as such consultations are not concerning transactions prohibited by Section 17(a) of the Act.
8. Use
of Names.
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(a)
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It is understood that the name “OBP Capital” or any derivative thereof or logo associated with that name is the valuable property of the Advisor and/or its affiliates, and that the
Sub-Advisor has the right to use such name (or derivative or logo) only with the approval of the Advisor and only so long as the Advisor is Advisor to the Trust and/or the Funds. Upon termination of the Advisory Agreement between the Trust
and the Advisor, the Trust or the Advisor shall notify the Sub-Advisor of the termination of the Advisory Agreement and the Sub-Advisor shall as soon as is reasonably possible cease to use such name (or derivative or logo).
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(b)
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It is understood that the name “RNC Capital Management”, “Xxxxxx Capital Management”, or any derivative thereof or logos associated with those names are the valuable property of the
Sub-Advisor and its affiliates and that the Trust and/or the Funds have the right to use such names (or derivatives or logos) in offering materials of the Trust with the approval of the Sub-Advisor and for so long as the Sub-Advisor is a
sub-advisor to the Trust and/or the Funds. Upon termination of this Agreement between the Advisor and the Sub-Advisor, the Trust shall as soon as is reasonably possible cease to use such names (or derivatives or logos).
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9. Cooperation; Confidentiality. Each
party to this Agreement agrees to cooperate with each other party and with all appropriate governmental authorities having the requisite jurisdiction (including, but not limited to, the U.S. Securities and Exchange Commission (the "SEC") in
connection with any investigation or inquiry relating to this Agreement or the Trust.
Subject to the foregoing, the Sub-Advisor shall treat as confidential all information pertaining to the Trust and actions of the Trust, the Advisor and the Sub-Advisor, and the
Advisor shall treat as confidential and use only in connection with the Funds all information furnished to the Trust or the Advisor by the Sub-Advisor, in connection with its duties under the Agreement except that the aforesaid information need not
be treated as confidential if required to be disclosed under Applicable Law or at the request of regulators or self-regulatory organizations, if generally available to the public through means other than by disclosure by the Sub-Advisor or the
Advisor, or if available from a source other than the Advisor, Sub-Advisor, or the Trust. Notwithstanding any of the foregoing the Sub-Advisor may disclose confidential information if specifically authorized by the Advisor or the Trust and the
Advisor or the Trust may disclose confidential information if specifically authorized by the Sub-Advisor.
10. Amendments. No provision of this
Agreement may be changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge, or termination is sought, and no amendment of this Agreement
shall be effective until approved by vote of the holders of a majority of the Trust’s outstanding voting securities.
11. Applicable Law. This Agreement
shall be construed in accordance with, and governed by, the substantive laws of the State of North Carolina, without regard to the principles of the conflict of laws or the choice of laws, provided that nothing herein shall be construed in a manner
inconsistent with the Act, the Advisers Act or rules, or orders of the SEC thereunder.
12. Representations and Warranties.
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(a)
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Representations and Warranties of the Sub-Advisor. The Sub-Advisor hereby represents and warrants to the Advisor and the
Funds as follows: (i) the Sub-Advisor is a limited liability company duly organized and in good standing under the laws of the State of California and is fully authorized to enter into this Agreement and carry out its duties and obligations
hereunder; and (ii) the Sub-Advisor is registered as an investment advisor with the SEC under the Advisers Act, and shall maintain such registration in effect at all times during the term of this Agreement.
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(b)
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Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Sub-Advisor as follows:
(i) the Advisor is a limited liability company duly organized and in good standing under the laws of the State of North Carolina and is fully authorized to enter into this Agreement and carry out its duties and obligations hereunder; and
(ii) the Advisor is registered as an investment advisor with the SEC under the Advisers Act, and shall maintain such registration in effect at all times during the term of this Agreement.
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13. Severability. If any provision of
this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby and, to this extent, the provisions of this Agreement shall be deemed to be severable.
14. Notice. Any notice must be in
writing and shall be deemed to have been given when (1) delivered in person, (2) dispatched by telegram or electric facsimile transfer (confirmed in writing by postage prepaid first class mail simultaneously dispatched), (3) sent by internationally
recognized overnight courier service (with receipt confirmed by such overnight courier service), or (4) sent by registered or certified mail, to the other party at the address of such party set forth below or at such other address as such party may
from time to time specify in writing to the other party.
If to the Advisor:
OBP Capital, LLC
Attn: Xxxxxxxxx X. Honey
000 X Xxxxxxxx Xxxxxx
Rocky Mount, NC 27804
If to the Sub-Advisor:
RNC Capital Management, LLC
d/b/a Xxxxxx Capital Management
00000 Xxxxxxxx Xxxx., 00xx Floor
Los Angeles, CA 90025
15. Notice of Certain Changes in Sub-Advisor.
The Sub-Advisor is hereby obligated to notify the Funds and Advisor if there is a material change in the Sub-Advisor’s equity ownership, whether, as the case may be, of members, shareholders, general or limited partners, or senior executive
personnel, within a reasonable time after such change takes place.
16. Miscellaneous.
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(a)
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The term “affiliate” or “affiliated person” as used in this Agreement shall mean “affiliated person” as defined in Section 2(a)(3) of the Act.
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(b)
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The captions of this Agreement are included for convenience only and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect.
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(c)
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If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby, and to
this extent, the provisions of this Agreement shall be deemed to be severable.
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(d)
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Nothing herein shall be construed as constituting the Sub-Advisor as an agent of the Advisor or constituting the Advisor as an agent of the Sub-Advisor.
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(e)
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The Advisor and the Sub-Advisor each affirm that it has procedures in place reasonably designed to protect the privacy of non-public personal consumer/customer financial information.
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(f)
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The Trust, the Advisor, and the Sub-Advisor acknowledge that each may have obligations under the laws and regulations of the United States to verify the source of funds and identity of
investors in accordance with the USA Patriot Act, and any rules or regulations adopted thereunder (collectively the “Patriot Act”). Each party agrees to assist the other parties in monitoring transactions in accordance with the Patriot Act.
If required by applicable law or regulation, each party shall provide the other parties with documentation evidencing the identity of a beneficial owner or owners of shares of the Funds upon request when a party is required by a law, court
order, or by administrative or regulatory entity to disclose the identity of the beneficial owner(s).
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(g)
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This Agreement may be executed in counterparts.
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[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and the year first written above.
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OBP CAPITAL, LLC |
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By: /s/ Xxxxxxxxx X. Honey |
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Xxxxxxxxx X. Honey, Managing Member
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RNC CAPITAL MANAGEMENT, LLC
d/b/a Xxxxxx Capital Management
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| By: /s/ Xxxxx Xxxxxx |
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| Xxxxx Xxxxxx, President |
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