EXHIBIT: Item 23(d) INVESTMENT ADVISOR AGREEMENT
EXHIBIT: Item 23(d)
INVESTMENT ADVISOR AGREEMENT
This Investment Advisor Agreement (the “Agreement”) is entered into by and
between Freedom Asset Management Corporation of America, a Texas corporation (the “Investment Advisor”) and Freedom
Asset Management Capital Series (the “Client”), on this 15th day of October 2001.
1. Account
Management: The Client is opening a discretionary advisory account (the “Account”) with the Investment Advisor to
purchase, sell, or otherwise distribute securities or investments held in the Account on behalf of the Client. Such
securities may include, but are not limited to, common or preferred stock, controvertible stock or bonds, options, warrants,
rights, corporate, municipal, or government bonds, and notes or bills. The Investment Advisor shall decide which securities
to sell, including the price, quantity, and time of sale. The Investment Advisor shall provide the Client with a monthly
Account statement comparing the Client’s account against the Dow Xxxxx World Index, Wilshire 5000 and/or S&P 500.
The Investment Advisor is specifically authorized to purchase and sell securities on the Client’s behalf by a limited power
of attorney, which the Client agrees to execute contemporaneously with this Agreement. The Client authorizes the Investment
Advisor to invest in any type of security in any country, except for limitation specified in paragraph 6 below. The Client
has filled out Client Questionnaire prior to entering this Agreement.
2. Broker
Selection: The Client hereby directs that transactions for the Account should be executed through a Broker/Dealer that will be
appointed and hereby promises to notify the Investment Adviser of such appointment in writing. In selecting a Broker/Dealer,
the Client has the sole responsibility for negotiating commission rates and other transaction costs with a Broker/Dealer.
Although the Client will selected a Broker/Dealer, the Client acknowledges the Investment Advisor will not be required to effect
any transaction through a Broker/Dealer if the Investment Advisor reasonably believes that such action may result in a breach of
its duties as a fiduciary. The Client understands that by instructing the Investment Advisor to execute all transactions on
behalf of the Investment Account through a Broker/Dealer, a disparity may exist between the commissions borne by the Account and
the commissions borne by the Investment Advisor’s other clients that do not direct the Investment Advisor to use a particular
Broker-Dealer. The Client also understands that by instructing the Investment Advisor to execute all transactions on behalf
of the Account through a Broker/Dealer, the Client may not necessarily obtain commission rates and execution as favorable as those
that would be obtained if the Investment Advisor was able to place transactions with other broker-dealers. The Client also
may forego benefits that the Investment Advisor may be able to obtain for its other clients through, for example, negotiating
volume discounts or block trades.
3.
Custody: The Client has appointed or will appoint a separate custodian (the “Custodian”) to take possession of
the cash, securities, and other assets in the Account. The Investment Advisor will have no access to the assets in the
Account or to the income produced from the Account and will not be responsible for any acts or omissions of the Custodian.
The Client has directed or will direct the Custodian to send a statement indicating all amounts disbursed from the Account
(including the amount of any fees paid to the Investment Advisor), all transactions occurring in the Account during the period
covered by the statement, and a summary of the Account positions and portfolio value at the end of the period. The Client has
directed or will direct the Custodian to send copies of the trade confirmations and Account statements to the Investment Advisor,
along with an indication that the statements have been sent to the Client.
4. Fees:
In consideration for the services to be rendered by the Investment Advisor, the Client has the following options:
The Client shall pay to the Investment Advisor a yearly fee of 2.4 percent (2.4%) of the value of the Client’s total assets
in the Client’s account to be determined, calculated and paid on such days that the Client does its own net asset
valuation.
a. Accounts and Withdrawals: The Client may make additions to the Account at
any time. Additional assets received into the Account after it is opened may be charged a pro rate fee based upon the number
of days remaining in the quarter. The Client may also withdraw the Account assets upon notice to the Investment Advisor,
subject to the usual and customary securities settlement procedures. No fee adjustments will be made for partial withdrawals
or for the Account appreciation or depreciation within a billing period. A pro rata refund of fees charged will be made if
the Account is closed within a billing period. The Investment Advisor will not impose closing or penalty fees in connection
with the Account.
b. Payment Method: The Client may indicate by initialing one of the options
below how to arrange payment of the Investment Advisor’s fees. If left blank, the Investment Advisor will assume the
first option is selected.
The Investment Advisor is authorized to invoice the Custodian directly for its fees, although it will simultaneously send a copy of
its xxxx to the Client. The Client will be responsible for verifying the accuracy of the fee calculation – the
Custodian will not determine whether the fee is calculated properly. The Client agrees to instruct the Custodian to pay such
fees directly to the Investment Advisor.
The Investment Advisor is authorized to invoice the Client directly for the payment of its fees. Any such payments shall be
made to the Investment Advisor by separate check, and under no circumstance will any fee be deducted from amounts held in the
account.
c. Changes to Investment Advisor Fee: The Client understands and agrees that
the investment advisory fee shall continue until 30 days after the Investment Advisor informs the Client in writing of any change
in the amount of the fee applicable to the Account. At such time, the new fee will become effective unless the Client
notifies the Investment Advisor in writing that the Account is to be closed.
d. Other Fees and Charges: The Client will be solely responsible for all
commissions and other transactions charges and any charge relating to the custody of securities in the account.
5.
Representations:
a. The Investment Advisor is authorized and empowered to enter into this
agreement.
b. The Client (1) is authorized and empowered to enter into this agreement, (2) the
terms hereof do not violate any obligation by which the client is bound, whether arising by contract, operation of law, or
otherwise; and (3) this agreement has been duly authorized and will be binding in accordance with its terms.
c. If the Agreement is entered into by a trustee or fiduciary, such trustee or
fiduciary represents that the services to be provided by the Investment Advisor are within the scope of the services and
investments authorized by the governing instruments of, and/or laws and regulations applicable to, the Client and that such trustee
or fiduciary is duly authorized to enter into and renew this Agreement. The trustee or fiduciary shall provide the Investment
Advisor with copies of the governing instruments authorizing establishment of the Account. The trustee or fiduciary
undertakes to advise the Investment Advisor of any material change in his or her authority or the propriety of maintaining the
Account.
6.
Limitations: The Client sets forth the following limitations to the Investment Advisor’s services as specified in
paragraph 1 of this Agreement and applicable appendices to this Agreement as follows:
to invest according to the policies and limitations set forth in the Client’s current prospectus and statement of additional
information.
7.
Non-Exclusive Relationship: The Client acknowledges and agrees that the Investment Advisor shall act as an investment
advisor to other clients and receive fees for such services. The advice given and the actions taken with respect to such
clients and the Investment Advisor’s own account may differ from advice given or the timing and nature of action taken with
respect to the Client’s Account. The Client further recognizes that transactions in a specific security may not be
accomplished for all clients’ accounts at the same time or at the same price. The Client also acknowledges that in
managing the Account, the Investment Advisor may purchase or sell securities in which the Investment Advisor may have acquired a
position or interest.
8. Risk:
The Client acknowledges the high risk nature of the Investment Advisor’s investment strategy. The Client understands
that there may be loss or depreciation of the value of any investment due to the fluctuation of market values. The Client
represents that no party to this agreement has made any guarantee, either oral or written, that the Client’s investment
objectives will be achieved. The Investment Advisor shall not be liable for any error in judgment and/or for any investment
losses in the Account in the absence of malfeasance, negligence, or violation of applicable law. Nothing in this agreement
shall constitute a waiver or limitation of any right, which the Client may have under applicable state or federal law, including
but not limited to the state and federal securities laws.
9. Legal
Proceedings: The Investment Advisor shall have no obligation whatsoever to render advice or take any action with respect to
securities or other investments, or the issuers thereof, which become subject to any legal proceedings, including
bankruptcies.
10. ERISA
Accounts:
a. If the Account is maintained on behalf of a plan subject to the Employee
Retirement Income Security Act of 1974 (“ERISA”) or similar government regulation, the Client represents that the
Broker/Dealer is capable of providing best execution for the Account’s brokerage transactions, and that the commission rates
that the Client negotiated are reasonable in relation to the brokerage and other services received by the plan. The Client
will monitor the services provided by the Broker/Dealer to assure that the plan continues to receive best execution and pay
reasonable commissions. The Client represents that the use of the Broker/Dealer is for the exclusive benefit of the
plan.
b. If the account is subject to the provisions of ERISA, the Investment Advisor
acknowledges that it is a “fiduciary” as defined in that Act with respect to performing its duties under the
agreement. The Client agrees to maintain appropriate ERISA bonding for the Account and to include within the coverage of the
bond the Investment Advisor and its personnel as may be required by law. The Client represents that employment of the
Investment Advisor, and any instructions that have been given to the Investment Advisor with regard to the Account, are consistent
with the applicable plan and trust documents. The Client agrees to furnish the Investment Advisor with copies of such
governing documents. The person signing this agreement on behalf of the Client also acknowledges its status as a “named
fiduciary” with respect to the control and management of the assets held in the Account, and agrees to notify the Investment
Advisor promptly of any change in the identity of the named fiduciary with respect to the Account. The Client also
acknowledges that the Account is only a part of the plan’s assets, and that the Investment Advisor is not responsible for
overall compliance of such investment with the requirements of ERISA or any other governing law or documents.
11. Assignment: This
agreement shall not be assignable by the Investment Advisor without the prior written consent of the Client. When duly
assigned in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the
assignee.
12. Delegation: The
Investment Adviser shall not delegate its duties with respect to this Agreement without the prior written consent of the
Client. When duly delegated in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the
benefit of the delegated party.
13. Applicable Law:
This agreement shall be interpreted under the laws of the State of Texas, without reference to principles of conflict of laws,
provided that there is no inconsistency with federal laws.
14. Termination: This
agreement may be terminated by either party at any time without penalty upon 30 days written notice. Such termination shall
not, however, affect liabilities or obligations incurred or arising from transactions initiated under this agreement prior to such
termination, including the provisions regarding arbitration , which shall survive any expiration or termination of this
agreement. Upon termination, it is the Client’s responsibility to monitor the securities in the Account, and the
Investment Advisor will have no further obligation to act or advise with respect to those assets.
15. Merger Clause:
This Agreement represents our entire understanding with regard to the matters specified herein. Any other agreements,
covenant, representations, or warranties, expressed or implied, oral or written, are superseded by this Agreement and are
considered void. The parties stipulate that this Agreement is their complete and mutual understanding of the matters
specified herein.
16. Validity: If any
part of this agreement is found to be invalid or unenforceable, it will not affect the validity or enforceability of the remainder
of this Agreement.
17. Waiver: The
Investment Advisor shall have the right to amend this agreement by modifying or rescinding any of its existing provisions or by
adding new provisions. However, no such written waiver by the Investment Advisor shall be deemed a continuing wavier, unless
specifically stated therein, and each such wavier shall operate only as to specific terms or conditions waiver and shall not
constitute a waiver of such terms or conditions for the future or as to any act other than that specifically waived.
18. Amendment: This
Agreement may be amended or modified only by a writing executed by both parties to this Agreement.
19. Obligatory Clause for
Investment Advisory Contracts Within the State of Texas As Required By the State Securities Board: “The Client
acknowledges receipt of Part II of From ADV, a disclosure statement containing the equivalent information, or a disclosure
statement containing at least the information required by Schedule H of form ADV if the client is entering into a wrap fee program
sponsored by the Investment Advisor. If the appropriate disclosure statement was not delivered to the Client at least 48
hours prior to the client entering into any written or oral advisory contract with this Investment Advisor, then the Client has the
right to terminate the contract without penalty within five business days after entering into the contract. For the purposes
of this provision, a contract is considered entered into when all parties to the contract have signed the contract, or in the case
of an oral contract otherwise signified their acceptance, any other provisions of this contract notwithstanding.”
20. Arbitration
Provision: Any contract or dispute which may arise between the Client and the Investment Advisor concerning any transaction or
the construction, performance, or breach of this agreement shall be settled by arbitration. Any arbitration shall be pursuant
to the rules, then applying, of the American Arbitration Association, except to the extent set forth herein. The arbitration
panel shall consist of at least three individuals, with at least one panelist having knowledge of investment advisory
activities. The parties agree that any arbitration proceeding pursuant to this provision shall be held in a location as
determined by the rules of the American Arbitration Association. The award of the arbitrators shall be final and binding on
the parties, and judgment upon the award rendered may be entered into in any court, state or federal, having jurisdiction.
The agreement to arbitrate does not entitle the Client to obtain arbitration of claims that would be barred by the relevant statute
of limitations if such claims were brought in a court of competent jurisdiction. If at the time a demand for arbitration is
made or an election or notice of intention to arbitrate is served, the claims sought to be arbitrated would have been barred by the
relevant statute of limitations or other time bar, any party to this agreement may assert the limitations as a bar to the
arbitration by applying to the court of competent jurisdiction, and the Client expressly agrees that any issues relating to the
application of a statue of limitations or other time bar, may be referred to such a court. The failure to assert such bar by
application to a court, however, shall not preclude its assertion before the arbitrators.
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Arbitration shall be final and binding on all parties. |
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b. |
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The arbitrators’ award is required to include factual findings and legal reasoning. |
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c. |
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The parties are waiving their right to remedies in court, including the right to jury trial, except to the extent that such a waiver would violate applicable law. |
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Pre-arbitration discovery is generally more limited than and different from court proceedings. |
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e. |
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The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. |
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f. |
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The party’s right to appeal or to seek modification of ruling by the arbitrators is strictly limited. |
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If more than one, all principals to the Account must sign below. If any signatory is
a fiduciary, the capacity in which he or she is acting should be indicated.
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Client Signature |
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Investment Advisor Signature |
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Xxxx Xxxxxxx Xxxxxx President |
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Trustee |
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Xxxx Xxxxxxx Xxxxxx, President |
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Freedom Asset Management Corp. of America |
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Name (Print) |
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Date: ____/____/____ |
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Title or Capacity |
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Date: ____/____/____ |
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