EX-99.B(d)(2)(ix)
INVESTMENT SUB-ADVISORY AGREEMENT
AMONG ▇▇▇▇▇ FARGO FUNDS TRUST, ▇▇▇▇▇ FARGO FUNDS MANAGEMENT, LLC
AND CADENCE CAPITAL MANAGEMENT
This AGREEMENT is made as of this 31st day of August, 2001, between ▇▇▇▇▇
Fargo Funds Trust (the "Trust"), a business trust organized under the laws of
the State of Delaware with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Fargo Funds Management, LLC
(the "Adviser"), a limited liability corporation organized under the laws of the
State of Delaware with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Cadence Capital Management, a
Delaware General Partnership, with its principal place of business at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (the "Sub-
Adviser").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended, (the "1940 Act") as an open-end, series management investment
company; and
WHEREAS, the Trust and the Adviser desire that the Sub-Adviser perform
investment advisory services for each of the series of the Trust listed in
Appendix A hereto as it may be amended from time to time (each a "Fund" and
collectively the "Funds"), and the Sub-Adviser is willing to perform those
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, the Trust, the Adviser and Sub-Adviser agrees as follows:
Section 1. The Trust; Delivery of Documents. The Trust is engaged in the
business of investing and reinvesting its assets in securities of the type and
in accordance with the limitations specified in its Declaration of Trust, as
amended or supplemented from time to time, By-Laws (if any) and Registration
Statement filed with the Securities and Exchange Commission (the "Commission")
under the 1940 Act and the Securities Act of 1933 (the "Securities Act"),
including any representations made in the prospectus and statement of additional
information relating to the Funds contained therein and as may be supplemented
from time to time, all in such manner and to such extent as may from time to
time be authorized by the Trust's Board of Trustees (the "Board"). The Board is
authorized to issue any unissued shares in any number of additional classes or
series. The Trust has delivered copies of the documents listed in this Section
to the Sub-Adviser and will from time to time furnish the Sub-Adviser with any
amendments thereof.
Section 2. Appointment of Sub-Adviser. Subject to the direction and
control of the Board, the Adviser manages the investment and reinvestment of the
assets of the
1
Funds and provides for certain management and services as specified in the
Investment Advisory Agreement between the Trust and the Adviser with respect to
the Funds.
Subject to the direction and control of the Board, the Sub-Adviser shall
manage the investment and reinvestment of the assets of the Funds, and without
limiting the generality of the foregoing, shall provide the management and other
services specified below, all in such manner and to such extent as may be
directed from time to time by the Adviser.
The investment authority granted to the Sub-Adviser shall include the
authority to exercise whatever powers the Trust may possess with respect to any
of its assets held by the Fund, including, but not limited to, the right to
vote, the power to exercise rights, options, warrants, conversion privileges,
redemption privileges, and to tender securities pursuant to a tender offer, and
participate in class actions and other legal proceedings on behalf of the Fund.
The Sub-Adviser shall be solely responsible for voting any proxy.
Notwithstanding the foregoing, the Trust or the Adviser shall instruct the
Custodian to process all class actions and other legal proceedings relating to
the holdings (historical and/or current) of the Fund. The Sub-Adviser will
reasonably cooperate with Custodian on such matters.
Section 3. Duties of the Sub-Adviser.
(a) The Sub-Adviser shall make decisions with respect to all purchases and
sales of securities and other investment assets for the Funds. To carry out
such decisions, the Sub-Adviser is hereby authorized, as agent and attorney-in-
fact for the Trust, for the account of, at the risk of and in the name of the
Trust, to place orders and issue instructions with respect to those transactions
of the Funds. In all purchases, sales and other transactions in securities for
the Funds, the Sub-Adviser is authorized to exercise full discretion and act for
the Trust in the same manner and with the same force and effect as the Trust
might or could do with respect to such purchases, sales or other transactions,
as well as with respect to all other things necessary or incidental to the
furtherance or conduct of such purchases, sales or other transactions.
(b) The Sub-Adviser will report to the Board at each regular meeting
thereof all material changes in the Funds since the prior report, and will also
keep the Board informed of important developments affecting the Trust, the Funds
and the Sub-Adviser, and on its own initiative will furnish the Board from time
to time with such information as the Sub-Adviser may believe appropriate,
whether concerning the individual companies whose securities are held by a Fund,
the industries in which they engage, or the economic, social or political
conditions prevailing in each country in which the Fund maintains investments.
The Sub-Adviser will also furnish the Board with such statistical and analytical
information with respect to securities in the Funds as the Sub-Adviser may
believe appropriate or as the Board reasonably may request. In making purchases
and sales of securities for the Funds, the Sub-Adviser will comply with the
policies set from time to time by the Board as well as the limitations imposed
by the Trust's Declaration of Trust, as amended or supplemented from
2
time to time, By-Laws (if any), Registration Statement under the 1940 Act and
the Securities Act, the limitations in the 1940 Act and in the Internal Revenue
Code of 1986, as amended applicable to the Trust and the investment objectives,
policies and restrictions of the Funds.
(c) The Sub-Adviser may from time to time employ or associate with such
persons as the Sub-Adviser believes to be appropriate or necessary to assist in
the execution of the Sub-Adviser's duties hereunder, the cost of performance of
such duties to be borne and paid by the Sub-Adviser. No obligation may be
imposed on the Trust in any such respect.
(d) The Sub-Adviser shall maintain records relating to portfolio
transactions and the placing and allocation of brokerage orders as are required
to be maintained by the Trust under the Act. The Sub-Adviser shall prepare and
maintain, or cause to be prepared and maintained, in such form, for such periods
and in such locations as may be required by applicable law, all documents and
records relating to the services provided by the Sub-Adviser pursuant to this
Agreement required to be prepared and maintained by the Trust pursuant to the
rules and regulations of any national, state, or local government entity with
jurisdiction over the Trust, including the Commission and the Internal Revenue
Service. The books and records pertaining to the Trust which are in possession
of the Sub-Adviser shall be the property of the Trust. The Trust, or the
Trust's authorized representatives (including the Adviser), shall have access to
such books and records at all times during the Sub-Adviser's normal business
hours. Upon the reasonable request of the Trust, copies of any such books and
records shall be provided promptly by the Sub-Adviser to the Trust or the
Trust's authorized representatives.
Section 4. Control by Board. As is the case with respect to the Adviser
under the Investment Advisory Agreement, any investment activities undertaken by
the Sub-Adviser pursuant to this Agreement, as well as any other activities
undertaken by the Sub-Adviser on behalf of the Funds, shall at all times be
subject to the direction and control the Trust's Board.
Section 5. Compliance with Applicable Requirements. In carrying out its
obligations under this Agreement, the Sub-Adviser shall at all times comply
with:
(a) all applicable provisions of the 1940 Act, and any rules and
regulations adopted thereunder;
(b) the provisions of the registration statement of the Trust, as it may
be amended from time to time, under the Securities Act and the 1940 Act;
(c) the provisions of the Declaration of Trust of the Trust, as it may be
amended or supplemented from time to time;
(d) the provisions of any By-laws of the Trust, if adopted and as it may be
amended from time to time, or resolutions of the Board as may be adopted from
time to time;
3
(e) the provisions of the Internal Revenue Code of 1986, as amended,
applicable to the Trust or the Funds;
(f) any other applicable provisions of state or federal law; and
In addition, any code of ethics adopted by the Sub-Adviser must comply with
Rule 17j-1 under the 1940 Act, as it may be amended from time to time, and any
broadly accepted industry practices, if requested by the Trust or the Adviser.
Section 6. Broker-Dealer Relationships. The Sub-Adviser is responsible for
the purchase and sale of securities for the Funds, broker-dealer selection, and
negotiation of brokerage commission rates. The Sub-Adviser's primary
consideration in effecting a security transaction will be to obtain the best
price and execution. In selecting a broker-dealer to execute each particular
transaction for a Fund, the Sub-Adviser will take the following into
consideration: the best net price available, the reliability, integrity and
financial condition of the broker-dealer; the size of and difficulty in
executing the order; and the value of the expected contribution of the broker-
dealer to the Fund on a continuing basis. Accordingly, the price to the Fund in
any transaction may be less favorable than that available from another broker-
dealer if the difference is reasonably justified by other aspects of the
portfolio execution services offered. Subject to such policies as the Trust's
Board of Trustees may from time to time determine, the Sub-Adviser shall not be
deemed to have acted unlawfully or to have breached any duty created by this
Agreement or otherwise solely by reason of having caused a Fund to pay a broker
or dealer that provides brokerage and research services to the Sub-Adviser an
amount of commission for effecting a portfolio investment transaction in excess
of the amount of commission another broker or dealer would have charged for
effecting that transaction, if the Sub-Adviser determines in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the overall responsibilities of
the Sub-Adviser with respect to the Fund and to other clients of the Sub-
Adviser. The Sub-Adviser is further authorized to allocate the orders placed by
it on behalf of the Funds to brokers and dealers who also provide research or
statistical material, or other services to the Funds or to the Sub-Adviser.
Such allocation shall be in such amounts and proportions as the Sub-Adviser
shall determine and the Sub-Adviser will report on said allocations regularly to
the Board of Trustees of the Trust indicating the brokers to whom such
allocations have been made and the basis therefor.
Section 7. Expenses of the Fund. All of the ordinary business expenses
incurred in the operations of the Funds and the offering of their shares shall
be borne by the Funds unless specifically provided otherwise in this Agreement.
These expenses borne by the Trust include, but are not limited to, brokerage
commissions, taxes, legal, auditing or governmental fees, the cost of preparing
share certificates, custodian, transfer agent and shareholder service agent
costs, expense of issue, sale, redemption and repurchase of shares, expenses of
registering and qualifying shares for sale, expenses relating to trustees and
shareholder meetings, the cost of preparing and distributing
4
reports and notices to shareholders, the fees and other expenses incurred by the
Funds in connection with membership in investment company organizations and the
cost of printing copies of prospectuses and statements of additional information
distributed to the Funds' shareholders.
Section 8. Compensation. As compensation for the sub-advisory services
provided under this Agreement, the Adviser shall pay the Sub-Adviser fees,
payable monthly, the annual rates indicated on Schedule A hereto, as such
Schedule may be amended or supplemented from time to time. It is understood
that the Adviser shall be responsible for the Sub-Adviser's fee for its services
hereunder, and the Sub-Adviser agrees that it shall have no claim against the
Trust or the Funds with respect to compensation under this Agreement.
Section 9. Standard of Care. The Trust and Adviser shall expect of the Sub-
Adviser, and the Sub-Adviser will give the Trust and the Adviser the benefit of,
the Sub-Adviser's best judgment and efforts in rendering its services to the
Trust, and as an inducement to the Sub-Adviser's undertaking these services at
the compensation level specified, the Sub-Adviser shall not be liable hereunder
for any mistake in judgment. In the absence of willful misfeasance, bad faith,
negligence or reckless disregard of obligations or duties hereunder on the part
of the Sub-Adviser or any of its officers, directors, employees or agents, the
Sub-Adviser shall not be subject to liability to the Trust or to any
shareholders in the Trust for any act or omission in the course of, or connected
with, rendering services hereunder or for any losses that may be sustained in
the purchase, holding or sale of any security.
Section 10. Non-Exclusivity. The services of the Sub-Adviser to the Adviser
and the Trust are not to be deemed to be exclusive, and the Sub-Adviser shall be
free to render investment advisory and administrative or other services to
others (including other investment companies) and to engage in other activities.
It is understood and agreed that officers or directors of the Sub-Adviser are
not prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers, directors
or trustees of any other firm or trust, including other investment advisory
companies.
Section 11. Records. The Sub-Adviser shall, with respect to orders the
Sub-Adviser places for the purchase and sale of portfolio securities of the
Funds, maintain or arrange for the maintenance of the documents and records
required pursuant to Rule 31a-1 under the 1940 Act as well as trade tickets and
confirmations of portfolio trades and such other records as the Adviser or the
Funds' Administrator reasonably requests to be maintained. All such records
shall be maintained in a form acceptable to the Funds and in compliance with the
provisions of Rule 31a-1 or any successor rule. All such records will be the
property of the Funds, and will be available for inspection and use by the Funds
and their authorized representatives (including the Adviser). The Sub-Adviser
shall promptly, upon the Trust's request, surrender to the Funds those records
which are the property of the Trust or any Fund. The Sub-Adviser will promptly
notify the Funds'
5
Administrator if it experiences any difficulty in maintaining the records in an
accurate and complete manner.
Section 12. Term and Approval. This Agreement shall become effective with
respect to a Fund after it is approved in accordance with the express
requirements of the 1940 Act, and executed by the Trust, Adviser and Sub-Adviser
and shall thereafter continue from year to year, provided that the continuation
of the Agreement is approved in accordance with the requirements of the 1940
Act, which currently requires that the continuation be approved at least
annually:
(a) (i) by the Trust's Board of Trustees or (ii) by the vote of "a majority
of the outstanding voting securities" of the Fund (as defined in Section
2(a)(42) of the 1940 Act), and
(b) by the affirmative vote of a majority of the Trust's Trustees who are
not parties to this Agreement or "interested persons" (as defined in the ▇▇▇▇
▇▇▇) of a party to this Agreement (other than as Trustees of the Trust), by
votes cast in person at a meeting specifically called for such purpose.
Section 13. Termination. As required under the 1940 Act, this Agreement may
be terminated with respect to a Fund at any time, without the payment of any
penalty, by vote of the Trust's Board of Trustees or by vote of a majority of a
Fund's outstanding voting securities, or by the Adviser or Sub-Adviser, on sixty
(60) days' written notice to the other party. The notice provided for herein
may be waived by the party entitled to receipt thereof. This Agreement shall
automatically terminate in the event of its assignment, the term "assignment"
for purposes of this paragraph having the meaning defined in Section 2(a)(4) of
the 1940 Act, as it may be interpreted by the Commission or its staff in
interpretive releases, or applied by the Commission staff in no-action letters,
issued under the 1940 Act.
Section 14. Indemnification by the Sub-Adviser. The Trust shall not be
responsible for, and the Sub-Adviser shall indemnify and hold the Trust or any
Fund of the Trust harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to the willful misfeasance, bad faith, negligent acts or reckless
disregard of obligations or duties of the Sub-Adviser or any of its officers,
directors, employees or agents.
Section 15. Indemnification by the Trust. In the absence of willful
misfeasance, bad faith, negligence or reckless disregard of duties hereunder on
the part of the Sub-Adviser or any of its officers, directors, employees or
agents, the Trust hereby agrees to indemnify and hold harmless the Sub-Adviser
against all claims, actions, suits or proceedings at law or in equity whether
brought by a private party or a governmental department, commission, board,
bureau, agency or instrumentality of any kind, arising from the advertising,
solicitation, sale, purchase or pledge of securities, whether of the Funds or
other securities, undertaken by the Funds, their officers, directors, employees
or affiliates, resulting from any violations of the securities laws, rules,
regulations, statutes
6
and codes, whether federal or of any state, by the Funds, their officers,
directors, employees or affiliates. Federal and state securities laws impose
liabilities under certain circumstances on persons who act in good faith, and
nothing herein shall constitute a waiver or limitation of any rights which a
Fund may have and which may not be waived under any applicable federal and state
securities laws.
Section 16. Notices. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of the Trust
shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and that of the Adviser shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and
that of the Sub-Adviser shall be ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director.
Section 17. Questions of Interpretation. Any question of interpretation of
any term or provision of this Agreement having a counterpart in or otherwise
derived from a term or provision of the 1940 Act shall be resolved by reference
to such terms or provision of the 1940 Act and to interpretations thereof, if
any, by the United States Courts or in the absence of any controlling decision
of any such court, by rules, regulations or orders of the Commission, or
interpretations of the Commission or its staff, or Commission staff no-action
letters, issued pursuant to the 1940 Act. In addition, where the effect of a
requirement of the 1940 Act or the Advisers Act reflected in any provision of
this Agreement is revised by rule, regulation or order of the Commission, such
provision shall be deemed to incorporate the effect of such rule, regulation or
order. The duties and obligations of the parties under this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
Section 18. Amendment. 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. If shareholder approval of an amendment is required
under the 1940 Act, no such amendment shall become effective until approved by a
vote of the majority of the outstanding shares of the affected Funds.
Otherwise, a written amendment of this Agreement is effective upon the approval
of the Board of Trustees, the Adviser and the Sub-Adviser.
Section 19. ▇▇▇▇▇ Fargo Name. The Sub-Adviser and the Trust each agree that
the name "▇▇▇▇▇ Fargo," which comprises a component of the Trust's name, is a
property right of the parent of the Adviser. The Trust agrees and consents that:
(i) it will use the words "▇▇▇▇▇ Fargo" as a component of its corporate name,
the name of any series or class, or all of the above, and for no other purpose;
(ii) it will not grant to any third party the right to use the name "▇▇▇▇▇
Fargo" for any purpose; (iii) the Adviser or any corporate affiliate of the
Adviser may use or grant to others the right to use the words "▇▇▇▇▇ Fargo," or
any combination or abbreviation thereof, as all or a portion of a corporate or
business name or for any commercial purpose, other than a grant of such
7
right to another registered investment company not advised by the Adviser or one
of its affiliates; and (iv) in the event that the Adviser or an affiliate
thereof is no longer acting as investment adviser to any Fund or class of a
Fund, the Trust shall, upon request by the Adviser, promptly take such action as
may be necessary to change its corporate name to one not containing the words
"▇▇▇▇▇ Fargo" and following such change, shall not use the words "▇▇▇▇▇ Fargo,"
or any combination thereof, as a part of its corporate name or for any other
commercial purpose, and shall use its best efforts to cause its trustees,
officers and shareholders to take any and all actions that the Adviser may
request to effect the foregoing and to reconvey to the Adviser any and all
rights to such words.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
written above.
▇▇▇▇▇ FARGO FUNDS TRUST
on behalf of the Funds
By:_______________________________________________
C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
▇▇▇▇▇ FARGO FUNDS MANAGEMENT, LLC
By:_______________________________________________
▇▇▇▇▇▇ ▇▇▇▇
Vice President
CADENCE CAPITAL MANAGEMENT
by Cadence Capital Management, Inc., its General Partner
By:_______________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
8
Appendix A
Funds Trust Funds
--------------------------------------------------------------------
Large Cap Appreciation Fund
--------------------------------------------------------------------
Approved by Board of Trustees: May 8, 2001.
9
SCHEDULE A
▇▇▇▇▇ FARGO FUNDS TRUST
INVESTMENT SUB-ADVISORY AGREEMENT
FEE AGREEMENT
This fee agreement is made as of the 31st day of August, 2001, by and
between ▇▇▇▇▇ Fargo Funds Management, LLC (the "Adviser") and Cadence Capital
Management (the "Sub-Adviser"); and
WHEREAS, the parties and ▇▇▇▇▇ Fargo Funds Trust (the "Trust") have
entered into an Investment Sub-Advisory Agreement ("Sub-Advisory Agreement")
whereby the Sub-Adviser provides investment management advice to each series of
the Trust as listed in Schedule A to the Sub-Advisory Agreement (each a "Fund"
and collectively the "Funds").
WHEREAS, the Sub-Advisory Agreement provides that the fees to be paid
to the Sub-Adviser are to be as agreed upon in writing by the parties.
NOW THEREFORE, the parties agree that the fees to be paid to the Sub-
Adviser under the Sub-Advisory Agreement shall be calculated as follows on a
monthly basis by applying the following annual rates per Fund:
for assets formerly invested in Large Cap Appreciation Portfolio:
a. 0.30% on the first $250 million;
b. 0.20% on the next $250 million;
c. 0.15% on the next $500 million;
d. 0.10% on all sums in excess of $1 billion.
provided, that no fee shall be payable hereunder with respect to a Fund during
any period in which the Fund invests all (or substantially all) of its
investment assets in a registered, open-end, management investment company, or
separate series thereof, in accordance with and reliance upon Section
12(d)(1)(E) under the Act.
The net assets under management against which the foregoing fees are
to be applied are the net assets as of the last day of the month. If this fee
agreement becomes effective subsequent to the first day of a month or shall
terminate before the last day of a month, compensation for that part of the
month this agreement is in effect shall be 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. During any period when the determination of
net asset value is suspended, the net asset value for the last day prior to such
suspension shall for this purpose be deemed to be the net asset value at the
close of the month.
10
The foregoing fee schedule shall remain in effect until changed in
writing by the parties.
▇▇▇▇▇ FARGO FUNDS MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------
▇▇▇▇▇▇ ▇▇▇▇
Vice President
CADENCE CAPITAL MANAGEMENT
by Cadence Capital Management, Inc., its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
11