Exhibit 99.d.3
SUBADVISORY AGREEMENT
AGREEMENT made this [DATE OF CLOSING] among ATLAS ADVISERS, INC., a
California corporation (the "Adviser"), ATLAS FUNDS, a Delaware statutory trust
(the "Trust"), on behalf of each series of the Trust listed in Appendix A
hereto, as amended from time to time (hereinafter referred to individually as a
"Fund" and collectively as the "Funds") and Madison Investment Advisors, Inc., a
Wisconsin Corporation (the "Subadviser").
WHEREAS, the Trust is registered with the Securities and Exchange
Commission ("SEC") under the Investment Company Act of 1940, as amended (the
"1940 Act"), as an open-end management company and is authorized to issue
separate series, each of which offers a separate class of shares of capital
stock and each of which has its own investment objectives, policies and
limitations; and
WHEREAS, the Trust has retained the Adviser to render investment
management and administrative services to the Funds; and
WHEREAS, the Adviser and the Trust desire to retain the Subadviser to
furnish portfolio management services to the Funds in connection with the
Adviser's investment management activities on behalf of the Funds, and the
Subadviser is willing to furnish such services to the Adviser and the Trust;
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the Adviser, the Subadviser and the Trust
as follows:
1. APPOINTMENT. The Adviser and the Trust hereby appoint the
Subadviser to act as portfolio manager to each Fund listed in Appendix A
(collectively, the "Funds") on the terms set forth in this Agreement. The
Subadviser accepts such appointment and agrees to furnish the services described
herein, for the compensation provided in the Fee Schedule attached hereto as
Appendix B.
2. REPRESENTATIONS OF THE TRUST. The Trust represents, warrants,
and agrees that:
A. The Trust is a statutory trust duly organized, validly
existing and in good standing under the laws of the state of Delaware.
B. The Adviser and Subadviser have been duly appointed by
the Board of Trustees of the Trust.
Subadvisory Agreement between Atlas Advisers, Inc., Atlas Funds, and
Madison Investment Advisors, Inc.
Dated [DATE OF CLOSING]
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C. The Trust will deliver to the Subadviser a true and
complete copy of its Registration Statement filed with the SEC, as effective
from time to time, and such other documents or instruments governing the
investment objectives of the Funds and such other information as is necessary
for the Subadviser to carry out its obligations under this Agreement.
D. The Trust is currently in compliance and shall at all
times use its best efforts to ensure continued compliance with the requirements
imposed upon the Trust by the 1940 Act and applicable state laws.
3. REPRESENTATIONS OF THE SUBADVISER. The Subadviser represents,
warrants, and agrees that:
A. The Subadviser is a Corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware.
B. The Subadviser is registered as an "Investment Adviser"
under the Investment Advisers Act of 1940 ("Advisers Act") and under applicable
state laws and is currently in compliance and shall at all times use its best
efforts to ensure compliance with the requirements imposed upon the Subadviser
by the Advisers Act and applicable state laws and has provided its current Form
ADV to the Adviser.
C. The Subadviser has adopted a written code of ethics
complying with the requirements of Rule 17j under the 1940 Act, will provide the
Trust any with a copy of the code of ethics and evidence of its adoption, and
will make such reports to the Trust as are required by Rule 17j-1 under the 1940
Act.
4. REPRESENTATIONS OF THE ADVISER. The Adviser represents,
warrants, and agrees that:
A. The Adviser is a corporation duly organized, validly
existing and in good standing under the laws of the state of California.
B. The Adviser is registered as an "Investment Adviser"
under the Advisers Act and under applicable state laws and is currently in
compliance and shall at all times use its best efforts to ensure compliance with
the requirements imposed upon the Adviser by the Advisers Act and applicable
state laws and has provided its current Form ADV to the Subadviser.
C. The Adviser has adopted a written code of ethics
complying with the requirements of Rule 17j under the 1940 Act, has provided the
Trust with a copy of the code of ethics and evidence of its adoption, and will
make such reports to the Trust as are required by Rule 17j-1 under the 1940 Act.
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5. PORTFOLIO MANAGEMENT DUTIES.
A. Subject to the supervision of the Adviser and the
Trust's Board of Trustees, the Subadviser will provide a continuous investment
program for the portfolio of each Fund listed in Appendix A. The Subadviser will
determine from time to time what securities and other investments will be
purchased, retained or sold by a Fund and will place orders for execution of
such portfolio transactions in accordance with paragraph C below to effect the
investment decisions made. The Subadviser will provide the services identified
in this Agreement in accordance with each respective Fund's investment
objectives, policies and restrictions as stated in the Trust's Registration
Statement filed with the SEC, as effective from time to time, and as interpreted
by the Adviser and communicated to the Subadviser, on behalf of the Trust, from
time to time. The Adviser will be responsible for all other services to be
provided to each Fund that is identified in Appendix A hereto.
B. The Subadviser shall use its best efforts to furnish to
the Adviser or any company supplying investment company accounting or security
pricing, timely notice of significant events which come to the Subadviser's
attention concerning securities in which it has caused the Fund to invest which
could require the Fund to fairly value such securities in the daily calculation
of the Fund's net asset value per share.
C. Subject to any applicable regulatory restriction or
prohibition, the Subadviser shall have authority and discretion to select
brokers and dealers (hereinafter "broker-dealers") to execute portfolio
transactions for the Funds and for the selection of the markets on or in which
the transactions will be executed.
The primary objective of the Subadviser in placing
orders for the purchase and sale of securities for a Fund shall be to obtain the
"best execution" (prompt and reliable execution at the most favorable security
price obtainable) taking into account such factors as price, commission, if any,
size of order, difficulty of execution and skill required of the executing
broker or dealer. The Subadviser shall have discretion, in the interests of each
Fund, to allocate brokerage on each Fund's portfolio transactions to
broker-dealers who provide brokerage and/or research services (as such services
are defined Section 28(e)(3) of the Securities Exchange Act of 1934) for any of
the Funds. The term "research" includes advice as to the value of securities;
the advisability of investing in, purchasing or selling securities; the
availability of securities or purchasers or sellers of securities; and
furnishing analyses and reports concerning issuers, industries, securities,
economic
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factors and trends, portfolio strategy and the performance of accounts. Subject
to such policies as the Adviser and the Trust's Board of Directors may
determine, the Subadviser shall not be deemed to have acted unlawfully or to
have breached any duty created by this Agreement or otherwise solely by reason
of its having caused a Fund to pay a broker for effecting a portfolio investment
transaction in excess of the amount of commission another broker-dealer would
have charged for effecting that transaction if the Subadviser 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-dealer, viewed in
terms of either that particular transaction or the Subadviser's overall
responsibilities with respect to the Fund and/or its other clients. In reaching
such determination, the Subadviser will not be required to place or attempt to
place a specific dollar value on the brokerage and/or research services provided
or being provided by such broker/dealer. The Subadviser shall have no duty or
obligation to seek advance competitive bidding for the most favorable commission
rate applicable to any particular portfolio transactions or to select any
broker-dealer on the basis of its purported or "posted" commission rate but
will, to the best of its ability, endeavor to be aware of the current level of
the charges of eligible broker-dealers and to minimize the expense incurred by
the Funds for effecting their portfolio transactions.
E. All transactions will be consummated by payment to or
delivery by the Trust's Custodian, or such depositories or agents as may be
designated by the Custodian, of all cash and/or securities due to or from a
Fund, and the Subadviser shall not have possession or custody thereof or any
responsibility or liability with respect thereto. The Subadviser shall advise
the Custodian and the Trust daily of all investment orders placed by it with
broker-dealers pursuant to procedures agreed upon by the Subadviser and the
Trust. The Subadviser shall not be responsible for obtaining prices for any such
investment order, but will use its best efforts to direct the Custodian to
pricing sources and assist the Custodian in obtaining dealer quotes if so
requested by the Custodian. The Trust or its authorized agents, the Adviser and
Subadviser, shall issue to the Custodian such instructions as may be appropriate
in connection with the settlement of any transaction initiated by the
Subadviser. The Trust shall be responsible for all custodial arrangements and
the payment of all custodial charges and fees, and, upon transmitting to the
Custodian the investment orders placed by it with broker-dealers, the Subadviser
shall have no responsibility or liability with respect to custodial arrangements
or the acts, omissions or other conduct of the Custodian.
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F. The Custodian shall, on a daily basis pursuant to
procedures and in a format agreed upon by the Subadviser and the Trust, provide
portfolio reports to the Subadviser that shall include a listing of all
portfolio investments of each Fund and its cash position.
6. EXPENSES. During the term of this Agreement, the Subadviser will
pay all expenses incurred by it or its staff in connection with rendering
portfolio management services under this Agreement. This does not include
expenses and costs of the Funds' operations payable by the Trust or the Adviser,
including, but not limited to, those for: interest and taxes; brokerage
commissions; custody, transfer agency, dividend disbursement, accounting,
pricing, legal and auditing services; insurance premiums for fidelity and other
coverage required for their operations; filing and registration of shares;
shareholder reports; meetings of the Trust's shareholders or directors (except
those called solely to accommodate the Subadviser); printing and postage; office
facilities, stationery and supplies; the clerical, executive and administrative
costs incurred by the Adviser in overseeing or administering all of the above;
other direct administrative and service costs; and such extraordinary
non-recurring expenses as may arise, including litigation, affecting any of the
Funds.
7. COMPENSATION. For the services provided, the Adviser will pay
the Subadviser a fee, payable monthly based on the aggregate daily net assets of
the Funds, as provided in the Fee Schedule attached to this Agreement as
Appendix B. The "aggregate daily net assets" is defined as the aggregate of the
values placed on the net assets of all Funds as of 4:00 p.m. (New York time), on
each day on which the net asset value of the Funds' portfolios is determined
consistent with the provisions of Rule 22c-1 under the 1940 Act or, if the Trust
lawfully determines the net asset value of a Fund's portfolio as of some other
time on each business day, as of such time. The net asset value of each Fund's
portfolio shall be determined pursuant to the applicable provisions of the
Trust's current Registration Statement and the 1940 Act. If the determination of
net asset value for a Fund is suspended in conformity with the 1940 Act for any
particular business day, then the value of the net assets of such Fund's
portfolio as last determined shall be deemed to be the value of the net assets
as of the close of the New York Stock Exchange, or such other time as the net
asset value of the portfolio may lawfully be determined, on that day. If the
Trust has suspended the determination of the net asset value of a Fund's
portfolio pursuant to the Registration Statement and the 1940 Act for a period
including such month, the Subadviser's compensation payable at the end of such
month shall be computed on the basis of the value of the net assets of the Fund
as last determined (whether during or prior to such month). If the Trust
determines the value of the net
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assets of a Fund's portfolio more than once on any day, the last such
determination on that day shall be deemed to be the sole determination on that
day for the purposes of this Section 7.
8. BOOKS AND RECORDS.
A. The Subadviser will make available to the Adviser and
the Trust promptly upon request its records and ledgers with respect to and
relating to each Fund's securities transactions to assist the Adviser and the
Trust in compliance with the 1940 Act and the Advisers Act, and other applicable
laws. The Subadviser will furnish the Trust's Board of Trustees such periodic
and special reports on each Fund as the Adviser and the Trustees may reasonably
request.
B. In compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Subadviser hereby agrees that all records which it maintains
for the Funds are the property of the Trust and further agrees to surrender
promptly to the Trust of such records upon the Trust's request. The Subadviser
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
and to preserve the records required by Rule 204-2 under the Advisers Act to the
extent necessary or appropriate to comply with the period specified in the Rule.
9. INDEMNIFICATION.
A. Absent the Adviser's or the Trust's gross negligence,
willful misconduct or bad faith in the performance of its duties, or reckless
disregard of its obligations and duties under this Agreement, the Subadviser
agrees to indemnify and hold harmless the Adviser, the Trust and their officers
and employees against any and all costs and liabilities (including legal and
other expenses) which the Adviser or the Trust may incur, arising out of the
Subadviser's (a) gross negligence, willful misconduct or bad faith in the
performance of its duties, or reckless disregard of its obligations and duties
under this Agreement, or (b) untrue statement or omission of a material fact
required in the Registration or Proxy Statements or other regulatory filing, if
such statement or omission was made in reliance upon information furnished in
writing by the Subadviser for inclusion in such regulatory filings.
B. Absent the Subadviser's gross negligence, willful
misconduct or bad faith in the performance of its duties, or reckless disregard
of its obligations and duties under this Agreement, the Adviser and the Trust
agree to indemnify and hold harmless the Subadviser and its officers and
employees against any and all costs and liabilities (including legal and other
expenses) which the Subadviser may incur, arising out of the Adviser's or the
Trust's (a) gross negligence,
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willful misconduct or bad faith in the performance of its duties, or reckless
disregard of its obligations and duties under this Agreement, or (b) untrue
statement or omission of a material fact required in the Registration or Proxy
Statements or other regulatory filing, unless such statement or omission was
made in reliance upon information furnished in writing by the Subadviser for
inclusion in such regulatory filings.
10. SERVICES NOT EXCLUSIVE. It is understood that the services of
the Subadviser are not exclusive, and nothing in this Agreement shall prevent
the Subadviser from providing similar services to other investment companies
(whether or not their investment objectives and policies are similar to those of
a Fund) or from engaging in other activities. When the Subadviser recommends the
purchase or sale of a security for other investment companies and other clients,
and at the same time the Subadviser recommends the purchase or sale of the same
security for one or more Funds, it is understood that such transactions will be
executed on a basis that is fair and equitable to each Fund.
11. DURATION. The term of this Agreement, with respect to each Fund,
shall begin on the effective date of a Post-Effective Amendment to the Trust's
Registration Statement that discloses the Subadviser as such for that Fund and
shall remain in effect until the first meeting of such Fund's shareholders held
thereafter, and, if approved at such meeting, shall continue in effect for two
years from the effective date of the Post-Effective Amendment with respect to
such Fund and continue on an annual basis thereafter if approved for each Fund
each year by (a) the vote of a majority of the entire Board of Trustees of the
Trust or by the vote of a majority of the outstanding voting securities of the
Fund (as defined in the 1940 Act), and by (b) the vote of a majority of those
Trustees of the Trust who are not parties to this Agreement or interested
persons (as such term is defined in the 0000 Xxx) of any such party, cast in
person at a meeting called for the purpose of voting on such approval.
12. TERMINATION. This Agreement may be terminated at any time
without payment of any penalty by (a) the Adviser, upon sixty (60) days' written
notice to the Subadviser and the Trust (which notice may be waived by the
Subadviser and the Trust), (b) the Trust, on behalf of any one or more of the
Funds, upon the vote of a majority of the Trust's Board of Trustees or a
majority of the outstanding voting securities of such Fund, upon sixty (60)
days' written notice to the Adviser and the Subadviser, or (c) the Subadviser,
upon one hundred twenty (120) days' written notice to the Adviser and the Trust
(which notice may be waived by the Adviser and the Trust). Termination of
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this Agreement with respect to a Fund shall not effect the continuing
applicability of this Agreement with respect to other Funds. This Agreement
shall automatically terminate in the event of its assignment (as such term is
defined in the 1940 Act and interpreted by the U.S. Securities and Exchange
Commission). Termination of this Agreement shall not affect the right of the
Subadviser to receive payments of any unpaid balance of the compensation
described in Section 7 earned prior to such termination.
13. 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
with respect to a Fund until approved by a vote of a majority of the outstanding
voting securities of such Fund, if such approval is required by applicable law.
14. USE OF NAME. It is understood that the name "[New Subadviser]"
or any derivative thereof or logo associated with that name is the valuable
property of the Subadviser and its affiliates and that the Trust and each Fund
have the right to use such name (or derivative or logo) in offering and sales
materials so long as the Subadviser is portfolio manager to such Fund and
provided the Subadviser shall have reviewed and approved in writing such use,
which approval may not be unreasonably withheld. Upon termination of this
Agreement, the Trust shall promptly cease to use such name.
15. MISCELLANEOUS.
A. This Agreement shall be governed by the laws of the
State of California, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act or rules or orders of the SEC
there under.
B. 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.
C. If any provision of this Agreement shall be held invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby and the provisions of this Agreement shall be
deemed to be severable.
D. Any notice under this Agreement shall be in writing
addressed and delivered or mailed, postage prepaid, to the other party at the
address below or at such other address as such other party may designate
hereunder for the receipt of such notice:
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If to the Adviser or the Trust:
Atlas Advisers, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: X. Xxxxxxxx Key, Group Senior Vice President
If to the Subadviser: With Copies to:
Madison Investment Advisors, Inc. Madison Investment Advisors, Inc.
000 Xxxxxxx Xxxxx 0000 X. Xxxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxx 00000 Suite 220
Attention: Xxxxx X. Xxxxxxx, Scottsdale, Arizona 85258
President Attention: W. Xxxxxxx Xxxxx,
General Counsel
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed as of the day and year first above written.
ATLAS ADVISERS, INC. MADISON INVESTMENT ADVISORS, INC.
By: By:
---------------------------------- ------------------------------
X. Xxxxxxxx Key Xxxxx X. Xxxxxxx
Group Senior Vice President and President
Chief Operating Officer
ATLAS FUNDS
By:
----------------------------------
X. Xxxxxxxx Key
Group Senior Vice President and
Chief Operating Officer
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