Exhibit 5(viii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
INDEPENDENCE ONE MUTUAL FUNDS
SUB-ADVISORY AGREEMENT
THIS AGREEMENT is made between Michigan National Bank, a national banking
association (hereinafter referred to as "Adviser") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Corporation, an Illinois corporation located in Chicago, Illinois (hereinafter
referred to as the "Sub-Adviser").
WITNESSETH:
That the parties hereto, intending to be legally bound, hereby agree as
follows:1. Notice of Advice: Sub-Adviser hereby agrees to furnish to Adviser in
its capacity as Investment adviser to the Independence One Small Cap Fund (the
"Fund"), a portfolio of the Independence One Mutual Funds ("Trust"), such
investment advice, statistical and other factual information, as may from time
to time be reasonably requested by Adviser for the Fund, which may be offered in
one or more classes of shares ( "Classes"). Sub-Adviser shall furnish such
advice and information to Adviser on a non-discretionary basis. Sub-Adviser
shall not have custody of any funds or securities of the Fund at any time. 2.
Representations of Sub-Adviser. Sub-Adviser hereby represents to Adviser that it
is duly registered as an investment adviser with (a) the United States
Securities and Exchange Commission pursuant to the Investment Advisers Act of
1940, and (b) any state authorities with which such registration necessary in
order to lawfully provide services pursuant to this Agreement. Sub-Adviser
hereby agrees to maintain such registrations in effect for so long as it
continues to provide services pursuant to this Agreement and to notify Adviser
immediately upon termination or revocation of any such registration during such
period. 3. Brokerage. Sub-Adviser may placed orders for the execution of
transactions with or through such brokers-dealers (including floor brokers) or
banks as Adviser may select. Sub-Adviser may suggest broker-dealers or banks to
Adviser; however, Adviser will choose the broker-dealer or banks through which
Sub-Adviser may place orders. Any accounts opened with such broker-dealers or
banks shall be in the name of the Fund. 4. Records and Confirms. Sub-Adviser
will send Adviser a record of the investments and positions of Fund as soon as
reasonably possible after the end of each quarterly period. Copies of
confirmations of transactions executed for the Fund will be sent by the
broker-dealers executing the transactions promptly to the custodian for the Fund
and the Sub-Adviser, if the custodian is other than the broker-dealer.
Otherwise, copies of confirmations of transactions executed will be sent by the
broker-dealers executing the transactions to Sub-Adviser and the Fund.
Sub-Adviser does not assume responsibility for the accuracy of information
furnished by Adviser or any other party. 5. Voting. Unless otherwise
specifically agreed, Sub-Adviser will not be required to take any action, or
render any advice, with respect to the voting of securities held by the Fund. 6.
Confidentiality. All information and advice furnished by either party hereto to
the other shall be treated as confidential and shall not be disclosed to third
parties, unless generally known or otherwise publicly available, and except as
required by regulatory agencies or otherwise by law. 7. Other Clients.
Sub-Adviser acts as adviser to other clients and may give advice, and take
action, with respect to any of those which may differ from the advice given, or
the timing or nature of action taken, with respect to the Fund. Sub-Adviser
shall have no obligation to purchase or sell for the Fund, or to recommend for
purchase or sale by the Fund, any security which Sub-Adviser, its principals,
affiliates or employees may purchase or sell for themselves or for any other
clients. Except as otherwise required by law, Sub-Adviser shall not make any
information about the accounts of its clients available to Adviser or the Fund.
Adviser recognizes that transactions in a specific security or securities may
not be accomplished for all client accounts at the same time or at the same
price. In the performance of Sub-Adviser's services hereunder, Sub-Adviser shall
not be liable for any failure to recommend or effect any purchase or sale, or
other investment or trading strategy on the basis of any information known to
Sub-Adviser where the utilization of such information might, in Sub-Adviser's
opinion, constitute a violation of any federal or state law, rules or
regulations, or the breach of any fiduciary duty or confidential relationship
between Sub-Adviser and any other person or persons. 8. Adviser's
Representations. Adviser represents that it has full authority to grant
Sub-Adviser the authority given to Sub-Adviser under this Agreement.9. Fees. For
its services under this Agreement, Sub-Adviser shall receive from Adviser an
annual fee ("the Sub-Advisory Fee"), as set forth on Exhibit A attached hereto.
Notwithstanding any other provision of this Agreement, the Sub-Adviser may from
time to time and for such periods as it deems appropriate, reduce its
compensation (and, if appropriate, assume expenses of the Fund or Class of the
Fund) to the extent that the Fund's expenses exceed such expense limitation as
the Sub-Adviser may, by notice to the Trust on behalf of the Fund, voluntarily
declare to be effective.10. Term. This Agreement shall begin for the Fund on the
date that the parties execute this Agreement relating to such Fund and shall
continue in effect for the Fund for two years from the date of its execution and
from year to year thereafter, subject to the provisions for termination and all
of the other terms and conditions hereof if: (a) such continuation shall be
specifically approved at least annually by the vote of a majority of the
Trustees of the Trust, including a majority of the Trustees who are not parties
to this Agreement or interested persons of any such party (other than as
Trustees of the Trust) cast in person at a meeting called for that purpose; and
(b) Adviser shall not have notified the Trust in writing at least sixty (60)
days prior to the anniversary date of this Agreement in any year thereafter that
it does not desire such continuation with respect to the Fund.11. Termination.
Notwithstanding any provision in this Agreement, it may be terminated at any
time without the payment of any penalty: (a) by the Trustees of the Trust or by
a vote of majority of the outstanding voting securities (as defined in Section
2(a)(42) of the Investment Company Act of 1940 (the "Act")) of the Fund on sixty
(60) days written notice to Adviser; and (b) by Sub-Adviser or Adviser upon
sixty (60) days written notice to the other party to the Agreement.12. Automatic
Termination. This Agreement shall automatically terminate:
(a) in the event of its assignment (as defined in the Act); or
(b) in the event of termination of the Investment Advisory Contract
between the Trust and Adviser ("Investment Advisory Contract") for
any reason whatsoever.
13. Limitation of Authority. Neither Adviser nor Sub-Adviser shall act as an
investment adviser (as such term is defined in the Act) to the Fund except as
provided herein and in the Investment Advisory contract between the Adviser and
the Fund or in such other manner as may be expressly agreed between Adviser and
Sub-Adviser. Provided, however, that if the Adviser or Sub-Adviser shall resign
prior to the end of any term of this Agreement or for any reason be unable or
unwilling to serve for a successive term which has been approved by the Trustees
of the Trust pursuant to the provisions of Paragraph 10 of this Agreement or
Paragraph 6 of the Investment Advisory Contract, the remaining party,
Sub-Adviser of Adviser as the case may be, shall not be prohibited from serving
as an investment advisor to such Fund by reason of the provisions of this
Paragraph 13.14. Notices. Notices regarding termination or other matters of this
Agreement or other matters shall be certified mail or overnight by a nationally
recognized courier and shall be deemed given when received at the addresses
specified below, or at such other address as a party to receive notice may
specify in a notice given in accordance with this provision. Sub-Adviser may
rely on any notice from any person reasonably believed to be genuine and
authorized. If to Sub-Adviser: If to Adviser: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
Michigan National Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇. Attention: ▇▇▇ ▇▇▇▇▇▇▇ 15. Indemnification. (a) (i) In any
threatened, pending or completed action, suit or proceeding to which the
Sub-Adviser, was, is or is threatened to be made a party, in connection with or
relating to the services performed by the Sub-Adviser for the Adviser or the
Fund as contemplated herein, including, without limitation, any breach of any
representations, warranties or convenants made by the Adviser in this Agreement
or any failure by the Adviser to comply with the federal or any state securities
laws or the rules and regulations promulgated thereunder or any other federal or
state law, or any rule or regulation promulgated by a governmental agency or
self-regulatory organization, Adviser shall indemnify and hold harmless the
Sub-Adviser, against any loss, liability, damage, cost and expense (including
reasonable attorneys' and accountants' fees and disbursements) incurred or
suffered by the Sub-Adviser in connection with the investigation, defense or
settlement of any such action, suit or proceeding, only if the acts or omissions
of the Sub-Adviser, did not involve willful misfeasance, gross negligence, bad
faith or reckless disregard of its duties and obligations under this Agreement;
and (ii) In the event that the Sub-Adviser is made a party to any claim, dispute
or litigation or otherwise incurs any loss or expense as a result of or in
connection with the activities or claimed activities of Adviser or its partners,
officers, directors, employees, agents or affiliates unrelated to the
Sub-Adviser or the Sub-Adviser's business, Adviser shall indemnify, defend and
hold harmless the Sub-Adviser against any loss, liability, damage, cost and
expense (including, without limitation, reasonable attorneys' and accountants'
fees and disbursements to be paid as incurred) incurred in connection therewith.
As used is subparagraphs (i) through (ii) above, the term "Sub-Adviser" shall
include the Sub-Adviser' directors, officers, shareholders, employees, agents
and affiliates.(b) (i) In any threatened, pending or contemplated action, suit
or proceeding to which the Adviser, was is or is threatened to be made a party,
in connection with or relating to the services performed by the Sub-Adviser for
the Adviser or the Fund as contemplated herein, including, without limitation,
any breach of any representations, warranties or covenants made by Sub-Adviser
in this Agreement or any failure by Sub-Adviser to comply with the federal or
any state securities laws or the rules and regulations promulgated thereunder or
any other federal or state law, or any rule or regulation promulgated by any
governmental agency or self-regulatory organization, Sub-Adviser shall indemnify
and hold harmless the Adviser, against any loss, liability, damage, cost and
expense (including reasonable attorneys' and accountants' fees and
disbursements) incurred or suffered by the Adviser in connection with the
investigation, defense or settlement of any such action, suit or proceeding,
only if the acts or omissions of the Adviser did not involve willful
misfeasance, gross negligence, bad faith or reckless disregard of its duties and
obligations under this Agreement; and (ii) In the event that the Adviser is made
a party to any claim, dispute or litigation or otherwise incurs any loss or
expense as a result of or in connection with the activities or claimed
activities of Sub-Adviser or its officers, directors, employees, agents or
affiliates unrelated to the Adviser or the Adviser's business, Sub-Adviser shall
indemnify, defend and hold harmless the Adviser against any loss, liability,
damage, cost and expense (including, without limitation, reasonable attorneys'
and accountants' fees and disbursements to be paid as incurred) incurred in
connection therewith. As used in subparagraphs (i) through (ii) above, the term
"Adviser" shall include the Adviser and the Adviser's directors, officers,
shareholders, employees, agents, and affiliates.(c) In the event that a person
entitled to indemnification under Sections 15 (a) and (b) is made a party to an
action, suit or proceeding alleging both matters for which indemnification can
be made hereunder and matters for which indemnification may not be made
hereunder, such person shall be indemnified only for that portion of the loss,
liability, damage, cost or expense incurred in such action, suit or proceeding
which relates to the matters for which indemnification can be made.(d) None of
the indemnifications contained in this Section 15 shall be applicable with
respect to default judgments, confessions of judgment or settlements entered
into by the part(ies) claiming indemnification without the prior written consent
of the party obligated to indemnify such party.(e) The provisions of this
Section 15 shall survive the termination or other expiration of this
Agreement.16.Independent Contractors. The Sub-Adviser shall for all purposes
herein be deemed to be an independent contractor of Adviser. It is expressly
agreed to by the parties hereto that the relationship created by this Agreement
does not create a partnership or joint venture between the Sub-Adviser and the
Adviser. Except as specifically set forth herein wit respect to the
Sub-Adviser's authority to place orders approved by the Adviser to
broker-dealers or banks for trading the accounts of the Fund, neither party
shall have any authority to bind the other nor shall either party represent to
third parties that it has such authority.17. Liability. Neither the Sub-Adviser
nor any of its agents, employees, principals, directors, or officers or any
person who controls the Sub-Adviser shall be liable to Adviser or its officers,
directors, partners, employees, agents or any person who controls Adviser or any
of its successors, or assigns under this Agreement, except by reason of acts or
omissions in contravention of this Agreement due to willful misfeasance, gross
negligence, bad faith, reckless disregard of its duties and obligations under
this Agreement, or violation of applicable law. Adviser acknowledges that all
transactions made by the Sub-Adviser on behalf of the Fund, shall be for the
account and risk of the Fund. The Sub-Adviser shall have no responsibility for
the execution or clearance of the Fund's trades once orders have been
transmitted to the executing broker-dealer or bank for those trades.
Notwithstanding the foregoing sentences, 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 Adviser may have under the federal securities laws or state
securities laws.18. Disclosure. [] Adviser acknowledges receipt of Sub-Adviser's
Disclosure Statement (Part II of Adviser's Form ADV), as required by Rule 204-3
under the Investment Advisers Act of 1940, not less than 48 hours prior to the
date of execution of this agreement shown below.[] Adviser acknowledges receipt
of Sub-Adviser's Disclosure Statement (Part II of Adviser's Form ADV) less than
48 hours prior to, but not later than, the date of execution of this agreement.
Accordingly, Adviser shall have the option to terminate this agreement without
penalty within five business days after that date of execution; provided,
however, that any investment action taken by Adviser with respect to the Fund
prior to the effective date of such termination shall be at Fund's risk.19.
Entire Agreement: Governing Law. This agreement constitutes the entire agreement
of the parties with respect to the rendering of advice by Sub-Adviser for the
benefit of Adviser and the Fund and can be amended only by written document
signed by the parties. This agreement shall be governed by the internal laws of
the State of Illinois.20. Amendment. This Agreement may be amended from time to
time by agreement of the parties hereto provided that such amendment shall be
approved both by the vote of a majority of Trustees of the Trust, including a
majority of Trustees who are not parties to this Agreement or interested person,
as defined in Section 2(a)(19) of the Act, of any such party at a meeting called
for that purpose, and, where required by Section 15(a)(2) of the Act, by the
holders of a majority of the outstanding voting securities (as defined in
Section 2(a)(42) of the Act) of the ▇▇▇▇.▇▇ WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed on their behalf by their duty
authorized officers, and their corporate seals affixed hereto this 16th day of
June, 1998.
ATTEST:MICHIGAN NATIONAL BANK
Secretary Director, Investment Services
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
Secretary Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Exhibit A
Independence One Mutual Funds
Independence One Small Cap Fund
Sub-Advisory Agreement
Advisor will pay Sub-Adviser as full compensation for services rendered
hereunder, an annual fee at the rate of 0.05% based on the average daily value
of the equity securities in the Fund. The fee shall be calculated as determined
by the Fund on the last day of each month on which the New York Stock Exchange
is open and shall be payable on a monthly basis, in arrears.This Exhibit duly
incorporates by reference the Sub-Advisory Agreement.Adviser:
(initials)Sub-adviser: (initials)