Northern Lights Fund Trust III PRE 14A, filed Dec 20, 2023
Northern Lights Fund Trust III (CPAI)
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
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Northern Lights Fund Trust III
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The Teberg Fund
a series of
Northern Lights Fund Trust III
225 Pictoria Drive, Suite 450
Cincinnati, OH 45246
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
To Be Held [MEETING DATE], 2024
Dear Shareholders:
The Board of Trustees of Northern Lights Fund Trust III, an open-end management investment company organized as a Delaware statutory trust, has called a special meeting of the shareholders of The Teberg Fund (the “Fund”), to be held at the offices of Thompson Hine LLP, 41 S. High Street, Suite 1700, Columbus, OH 43215 on [MEETING DATE], 2024 at 10:00 a.m., Eastern time, for the following purposes:
| 1. | To approve a new investment advisory agreement with Absolute Capital Management, LLC. |
2. To approve a new investment sub-advisory agreement between Absolute Capital Management, LLC and First Associated Investments Advisors, Inc., the Fund’s current advisor, pursuant to which Absolute Capital Management LLC would serve as the Fund’s advisor and First Associated Investment Advisors, Inc. would serve as the Fund’s sub-advisor.
| 3. | To transact such other business as may properly come before the meeting or any adjournments or postponements thereof. |
In connection with Proposals 1 and 2 above, no changes are proposed with respect to the Fund’s investment strategy, risks, investment objective, portfolio manager, investment process, advisory fees or name. Shareholders of record at the close of business on [RECORD DATE], 2023 are entitled to notice of, and to vote at, the special meeting and any adjournments or postponements thereof. The Notice of Meeting, Proxy Statement, and accompanying form of proxy will be mailed to shareholders on or about [MAILING DATE], 2024.
By Order of the Board of Trustees
Viktoriya Pallino, Secretary
[MAILING DATE], 2024
IMPORTANT NOTICE REGARDING THE INTERNET AVAILABILITY OF PROXY MATERIALS FOR THE SHAREHOLDER MEETING TO BE HELD
ON [MEETING DATE], 2024.
A copy of the Notice of Shareholder Meeting, the Proxy Statement (including the proposed Investment Advisory Agreement) and Proxy Voting Ballot are available at [INSERT WEBSITE]
YOUR VOTE IS IMPORTANT
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To assure your representation at the meeting, please complete the enclosed proxy and return it promptly in the accompanying envelope or by calling the number listed on your proxy card whether or not you expect to be present at the meeting. If you attend the meeting, you may revoke your proxy and vote your shares in person.
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The Teberg Fund
a series of
Northern Lights Fund Trust III
with its principal offices at
225 Pictoria Drive, Suite 450
Cincinnati, OH 45246
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PROXY STATEMENT
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SPECIAL MEETING OF SHAREHOLDERS
To Be Held [MEETING DATE], 2024
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INTRODUCTION
This Proxy Statement is furnished in connection with the solicitation of proxies by the Board of Trustees (the “Board”) of Northern Lights Fund Trust III (the “Trust”) on behalf of The Teberg Fund (the “Fund”), for use at a special meeting of shareholders of the Trust (the “Meeting”) to be held at the offices of the Trust’s counsel, Thompson Hine LLP, 41 S. High Street, Suite 1700, Columbus, OH 43215, on [MEETING DATE], 2024 at 10:00 a.m. Eastern time, and at any and all adjournments thereof. The Notice of Meeting, Proxy Statement, and accompanying form of proxy will be mailed to shareholders on or about [MAILING DATE], 2024.
The Meeting has been called by the Board for the following purposes:
| 1. | To approve a new investment advisory agreement with Absolute Capital Management, LLC (“Absolute”). |
| 2. | To approve a new investment sub-advisory agreement between Absolute and First Associated Investments Advisors, Inc. (“FAIA”), the Fund’s current advisor, pursuant to which Absolute would serve as the Fund’s advisor and FAIA would serve as the Fund’s sub-advisor. |
| 3. | To transact such other business as may properly come before the meeting or any adjournments or postponements thereof. |
In connection with Proposals 1 and 2, no changes are proposed with respect to the Fund’s investment strategy, risks, investment objective, portfolio manager, investment process, advisory fees or name. Only shareholders of record at the close of business on [RECORD DATE], 2023 (the “Record Date”) are entitled to notice of, and to vote at, the Meeting and any adjournments or postponements thereof.
The Fund’s most recent semi-annual report, including financial statements and schedules, is available at no charge by visiting www.tebergfund.com, sending a written request
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to the Fund at 80 Arkay Drive, Suite 110, Hauppauge, NY 11788 or by calling [TOLL FREE NUMBER].
BACKGROUND
The Fund reorganized into the Trust on December 13, 2013 when it acquired all of the assets and liabilities of its predecessor fund in a tax-free organization. Prior to the reorganization, the Board, including a majority of its independent trustees, approved an investment advisory agreement with First Associated Investment Advisors, Inc. (“FAIA”) on August 22, 2013, and shareholders of the predecessor fund approved the investment advisory agreement on December 2, 2013. This advisory agreement was last renewed by the Board on November 21, 2023. FAIA served as the investment adviser of the predecessor fund since the predecessor fund’s commencement of operations on April 1, 2002.
FAIA is a three-member investment advisor whose sole investment client is the Fund. FAIA’s president, Curtis Teberg, has over 40 years of experience in the investment management industry. In May 2023, Mr. Teberg informed the Board that, as part of his succession planning and to ensure continuity of service for the Fund’s shareholders upon his retirement, he had begun exploring opportunities with other investment advisors to determine who could partner with FAIA to manage the Fund in the near-term with the possibility of fully taking over the management of the Fund in the long-term.
In November 2023, Mr. Teberg reported to the Board that FAIA had reached an agreement with Absolute Capital Management, LLC (“Absolute”) whereby, upon Board and shareholder approval, Absolute would take over the role of advisor to the Fund with FAIA serving as sub-advisor to the Fund. Mr. Teberg would continue to serve the Fund as its portfolio manager. Absolute is a Pennsylvania limited liability company with its principal office located at 101 Pennsylvania Boulevard, Pittsburgh, PA 15228 and the investment advisor to two other series of the Trust.
Mr. Teberg explained that, in FAIA’s view, Absolute’s additional human and capital resources would bring certain efficiencies to the Fund and could expand marketing and distribution opportunities to the benefit of the Fund’s shareholders. He also noted that because Absolute and FAIA had very similar office cultures and investment philosophies, the Fund’s existing shareholders could expect the same quality service they had come to know. Mr. Teberg explained that while Absolute would take over the day-to-day operational aspects of the Fund, it was Mr. Teberg’s intention to remain as portfolio manager or co-portfolio manager of the Fund until his retirement, the date of which remains undetermined.
On November 21, 2023, the Board approved, with respect to the Fund, an interim advisory agreement between the Trust and Absolute (the “Interim Advisory Agreement”) and an interim sub-advisory agreement between Absolute and FAIA (the “Interim Sub-Advisory Agreement”). The Board also renewed the advisory agreement between the Trust and FAIA (the “Current Advisory Agreement”) in the event shareholders do not approve either of (1) the proposed advisory agreement between the Trust and Absolute (the “Proposed Advisory Agreement”) as outlined in Proposal 1 below or (2) the proposed sub-advisory agreement between Absolute and FAIA (the “Proposed Sub-Advisory Agreement”) as outlined in Proposal 2 below. Absolute seeks the same 1.25% advisory fee under the
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Interim Advisory Agreement and Proposed Advisory Agreement as FAIA under the Current Advisory Agreement. The services offered under the Current Advisory Agreement, Interim Advisory Agreement and Proposed Advisory Agreement are substantially similar. There are no planned changes to the Fund’s advisory fee, investment strategy, risks, objective, portfolio manager, investment process or name. The sub-advisory fee to be paid FAIA under the Interim Sub-Advisory Agreement is paid from the Absolute advisory fee and will not be an additional charge to the Fund. Absolute has further agreed to limit the Fund’s expenses at the same expense limitation agreed upon between the Trust and FAIA.
PROPOSAL 1
APPROVAL OF THE PROPOSED INVESTMENT ADVISORY AGREEMENT BETWEEN THE TRUST AND ABSOLUTE CAPITAL MANAGEMENT, LLC
The Board requests that shareholders of the Fund approve the Proposed Advisory Agreement between the Trust and Absolute. Approval of the Proposed Advisory Agreement will not raise the fees paid by the Fund or its shareholders, nor will it change the Fund’s advisory fee, investment strategy, risks, investment objective, portfolio manager, investment process, or name.
Absolute has been a registered investment adviser since 2002 and provides individuals, including high net worth individuals, and investment companies with asset management and advisory services. Absolute has been the adviser to two other series in the Trust since their inception in 2015. Brenden Gebben, Absolute’s President, believes that the Fund would complement the other two series in the Trust under Absolute’s management.
An Interim Agreement was approved by the Board on November 21, 2023 at a meeting conducted via videoconference pursuant to SEC Release Order No. 33897 (the “Board Meeting”). This vote occurred to allow Absolute to act as investment adviser to the Fund while the Board solicited shareholder approval for the Proposed Advisory Agreement. The Interim Advisory Agreement is effective for 150 days from the date it was approved or until the Proposed Advisory Agreement is approved, if sooner. The terms of the Interim Advisory Agreement are identical in all material respects to those of the Current Agreement, except for (i) the parties to the agreements, (ii) the dates of execution and effectiveness; and (iii) the fees earned by Absolute under the Interim Advisory Agreement will be held in a separate escrow account pending shareholder approval of the Proposed Advisory Agreement. Upon approval of the Proposed Advisory Agreement by the Fund’s shareholders, the escrowed management fees for the Fund will be paid to Absolute. If a majority of the Fund’s shareholders do not approve the Proposed Advisory Agreement, then Absolute is paid the lesser of (i) its costs, plus interest, incurred in managing the Fund under the Interim Advisory Agreement, or (ii) the total amount in the escrow account by the Fund.
In order for Absolute to serve as the investment adviser to the Fund, the Board requests that shareholders approve the Proposed Advisory Agreement. Approval of the Proposed Advisory Agreement will not raise the fees paid by the Fund or the Fund’s shareholders. Absolute and FAIA do not believe the transition to Absolute as investment adviser to the Fund will result in any interruption or decrease in the quality of services provided to the Fund. Mr. Teberg, the Fund’s current portfolio manager, will continue to serve as the Fund’s portfolio manager.
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The Proposed Advisory Agreement is identical in all material respects to the Interim Advisory Agreement, except that the date of its execution, effectiveness, and expiration are changed. The fees to be charged under the Proposed Advisory Agreement are identical to the fees charged under the Interim Advisory Agreement and Current Advisory Agreement. The effective date of the Proposed Advisory Agreement for the Fund will be the date that the Fund’s shareholders approve the Proposed Advisory Agreement.
At the Board Meeting, the Board approved the Proposed Advisory Agreement subject to shareholder approval. The Investment Company Act of 1940, as amended (the “1940 Act”), requires that investment advisory agreements such as the Proposed Advisory Agreement be approved by a vote of a majority of the outstanding shares of the Fund. Therefore, shareholders of the Fund are being asked to approve the Proposed Advisory Agreement with Absolute.
The Advisory Agreements
The Proposed Advisory Agreement and Interim Advisory Agreement (collectively, the “Advisory Agreements”) provide that Absolute will continuously furnish an investment program for the Fund and place all orders for the purchase and sale of portfolio securities, subject to the Fund’s investment objectives, policies, and restrictions and such policies as the Board may determine. As compensation for these services, under the Advisory Agreements, Absolute is entitled to receive, on a monthly basis, an annual advisory fee from the Fund equal to 1.25% of the Fund’s average daily net assets. Pursuant to the Advisory Agreements, from this advisory fee, Absolute pays all salaries, expenses and fees of the officers, Trustees and employees of the Trust who are officers, directors, members or employees of Absolute. In the event that Absolute pays or assumes any expenses of the Trust not required to be paid or assumed by Absolute under the Advisory Agreements, Absolute shall not be obligated hereby to pay or assume the same or any similar expense in the future.
The Proposed Advisory Agreement provides that it will continue in force for an initial period of two years, and from year to year thereafter, but only so long as its continuance is approved at least annually by (i) the Board or (ii) a vote of a majority of the outstanding voting securities of the Fund, provided that in either event, continuance is also approved by a majority of the Independent Trustees by a vote cast in person at a meeting called for the purpose of voting such approval. The Proposed Advisory Agreement automatically terminates on assignment and is terminable on 60 days’ notice by the Board. In addition, the Proposed Advisory Agreement may be terminated by Absolute on 60 days’ notice to the Fund. The Advisory Agreements provide that Absolute shall not be subject to any liability in connection with the performance of its services thereunder in the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of its obligations and duties.
Subject to shareholder approval, the Trust will enter into the Proposed Advisory Agreement with Absolute. If the Proposed Advisory Agreement with Absolute is not approved by shareholders, the Board, Absolute and FAIA will consider other options, including a new or modified request for shareholder approval of a new investment advisory agreement.
The description in this Proxy Statement of the Proposed Advisory Agreement is only a summary. The Proposed Advisory Agreement is attached as Exhibit A. You should read the Proposed Advisory Agreement.
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Information Concerning Absolute
Absolute is a Pennsylvania limited liability company located at 101 Pennsylvania Blvd., Pittsburgh, PA 15228. The names, addresses, and principal occupations of the principal executive officers of Absolute as of the date of this Proxy Statement are set forth below:
| Name and Address*: | Principal Occupation: |
| P. Brenden Gebben | Owner and Managing Director |
| Renee Gebben | Owner |
| Denise Alfieri | Chief Compliance Officer |
* Each officer’s address is in care of Absolute Capital Management, LLC, 101 Pennsylvania Blvd., Pittsburgh, PA 15228.
None of the Trustees or officers of the Trust is an officer, employer or shareholder of Absolute. None of the Trustees or officers of the Trust had any material direct or indirect interest in any transactions or proposed transactions with Absolute during the past fiscal year.
Evaluation by the Board of Trustees
At the Board Meeting, the Board considered the approval of the Advisory Agreements with Absolute. The Board relied on the advice of independent legal counsel and its own business judgment in determining the material factors to be considered in evaluating the Advisory Agreements and the weight to be given to each factor. The conclusions reached by the Board were based on an evaluation of all of the information provided and were not the result of any single factor. Moreover, each Trustee may have afforded different weight to the various factors in reaching conclusions with respect to the Advisory Agreements.
Nature, Extent and Quality of Service. The Board observed that Absolute provided turn-key money management programs to its clients and managed approximately $270 million in assets. The Board noted its familiarity with Absolute and its investment personnel. The Board discussed that Absolute would assume the responsibilities of managing the compliance and operational aspects of the Fund and that FAIA as sub-adviser would retain the responsibility for portfolio management. The Board observed that Absolute would review transactions pre- and post-trade for compliance with investment limitations and manage proxy voting. The Board remarked that Absolute would provide oversight of the sub-adviser through monthly calls. The Board acknowledged that Absolute selected broker-dealers based on its review of their pricing, timeliness and quality of execution. The Board recognized that Absolute continued to invest in its cybersecurity infrastructure and program. The Board noted that Absolute represented that it had no material regulatory, compliance or litigation issues over the past 36 months. The Board discussed that Absolute committed to providing adequate resources to support the Fund. The Board determined that it could expect Absolute to provide high quality services to the Fund and its shareholders.
Performance. The Board recalled its review of the Fund’s performance earlier in the Meeting, noting that the current investment strategy, objective, and portfolio manager of the Fund would remain the same even with Absolute as adviser to the Fund. The Board concluded that it was reasonable to expect Absolute and FAIA had the potential to provide satisfactory performance for the Fund and its shareholders.
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Fees and Expenses. The Board observed the advisory fee to be charged by Absolute to the Fund was the same as the advisory fee currently charged by FAIA as the adviser to the Fund. The Board further noted that Absolute agreed to keep the current expense limits in place with respect to the Fund. The Board recalled Absolute’s belief that the Fund’s expense ratio may fall as its assets, pointing to the much higher assets of the funds in the Fund’s peer group.
Economies of Scale. The Board reviewed the size of the Fund and Absolute’s asset projections. The Board noted the Absolute’s assertion that the asset levels at which economies of scale would be achieved were unlikely to be realized in the near term but noted its willingness to discuss the implementation of breakpoints as the Fund’s assets grew and Absolute achieved economies of scale related to its operations. After further discussion, it was the consensus of the Board that the absence of breakpoints was reasonable. The Board agreed to monitor this issue and revisit this discussion at the appropriate time.
Profitability. The Board reviewed the projected profitability analysis provided by Absolute in connection with the services to be provided to the Fund, noting that Absolute indicated that it anticipates earning a profit managing the Fund. The Board considered Absolute’s position that its profits before marketing expenses were reasonable given the operational, regulatory, and reputational risks in managing the Fund. The Board acknowledged that the amount of profit appeared reasonable in terms of actual dollars and percentage of revenue. The Board agreed that the estimated profits for Absolute would not be excessive.
Conclusion. Having requested and reviewed such information from Absolute as the Board believed to be reasonably necessary to evaluate the terms of the Advisory Agreements, and as assisted by the advice of independent counsel, the Board concluded that Absolute’s advisory fee charged to the Fund was not unreasonable and that approval of the Advisory Agreements was in the best interests of the Fund and its respective shareholders.
The Board of Trustees of the Trust, consisting entirely of Independent Trustees, recommends that shareholders of the Fund vote “FOR” approval of the Proposed Advisory Agreement.
PROPOSAL 2
APPROVAL OF THE PROPOSED SUB-ADVISORY AGREEMENT BETWEEN ABSOLUTE CAPITAL MANAGEMENT, LLC AND
FIRST ASSOCIATED INVESTMENT ADVISORS, INC.
The Board requests that shareholders of the Fund approve the Proposed Sub-Advisory Agreement between Absolute and FAIA. Approval of the Proposed Sub-Advisory Agreement will not raise the fees paid by the Fund or its shareholders, nor will it change the Fund’s advisory fees, investment strategy, risks, investment objective, portfolio manager, investment process, or name.
FAIA has provided investment management services for individuals and institutional clients since 1988 and has served as the investment adviser for the Fund since its inception in the Trust in
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2013 and of the Fund’s predecessor since its inception in 2003. FAIA’s president, Curtis Teberg, has been the portfolio manager of the Fund since 2003 and will continue to serve as portfolio manager under the Proposed Sub-Advisory Agreement.
An interim sub-advisory agreement (the “Interim Sub-Advisory Agreement”) was approved by the Board on November 21, 2023 at a meeting conducted via videoconference pursuant to SEC Release Order No. 33897 (the “Board Meeting”). This vote occurred to allow FAIA to act as investment sub-adviser to the Fund while the Board solicits shareholder approval for the Proposed Sub-Advisory Agreement. The Interim Sub-Advisory Agreement is effective for 150 days from the date it was approved or until the Proposed Sub-Advisory Agreement is approved, if sooner. The terms of the Interim Sub-Advisory Agreement are identical in all material respects to those of the Proposed Sub-Advisory Agreement, except for the date of its execution and effectiveness. The fees paid to FAIA under either the Interim Sub-Advisory Agreement or Proposed Sub-Advisory Agreement are paid from the advisory fee paid to Absolute. The effective date of the Proposed Sub-Advisory Agreement for the Fund will be the date that the Fund’s shareholders approve the Proposed Sub-Advisory Agreement.
In order for FAIA to serve as the investment sub-adviser to the Fund, the Board requests that shareholders approve the Proposed Sub-Advisory Agreement Agreement. Approval of the Proposed Sub-Advisory Agreement will not raise the fees paid by the Fund or the Fund’s shareholders. Absolute and FAIA do not believe the transition to Absolute as the Fund’s investment adviser will result in any interruption or decrease in the quality of services provided to the Fund. Mr. Teberg, the Fund’s current portfolio manager, will continue to serve as the Fund’s portfolio manager.
At the Board Meeting, the Board approved the Proposed Sub-Advisory Agreement subject to shareholder approval. The 1940 Act requires that investment advisory agreements such as the Proposed Sub-Advisory Agreement be approved by a vote of a majority of the outstanding shares of the Fund. Therefore, shareholders of the Fund are being asked to approve the Proposed Sub-Advisory Agreement between Absolute and FAIA.
The Sub-Advisory Agreements
The Proposed Sub-Advisory Agreement and Interim Sub-Advisory Agreement (collectively, the “Sub-Advisory Agreements”) provide that FAIA will regularly provide investment research, advice, management and supervision, shall continuously furnish an investment program for the Fund and place all orders for the purchase and sale of portfolio securities, subject to the Fund’s investment objectives, policies, and restrictions and such policies as the Board may determine. As compensation for these services, under the Sub-Advisory Agreements, FAIA is entitled to receive, on a monthly basis, an annual sub-advisory fee from the Fund equal to 20% of the adviser’s net advisory fee. The net advisory fee shall be calculated as the advisory fee minus (i) any fees waived by the advisor and (ii) certain other expenses as agreed to between the parties. daily net assets.
The Proposed Sub-Advisory Agreement provides that it will continue in force for an initial period of two years, and from year to year thereafter, but only so long as its continuance is approved at least annually by (i) the Board or (ii) a vote of a majority of the outstanding voting securities of the Fund, provided that in either event, continuance is also approved by a majority of the Independent
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Trustees by a vote cast in person at a meeting called for the purpose of voting such approval. The Proposed Sub-Advisory Agreement automatically terminates on assignment and is terminable on 60 days’ notice by the Board. In addition, the Proposed Sub-Advisory Agreement may be terminated by Absolute on 60 days’ notice to FAIA, and by FAIA on 60 days’ notice to Absolute and the Trust. The Sub-Advisory Agreements provide that FAIA shall not be subject to any liability in connection with the performance of its services thereunder in the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of its obligations and duties.
Subject to shareholder approval, the Absolute and FAIA will enter into the Proposed Sub-Advisory Agreement. If the Proposed Sub-Advisory Agreement with Absolute is not approved by shareholders, the Board, Absolute and FAIA will consider other options, including a new or modified request for shareholder approval of a new investment sub-advisory agreement.
The description in this Proxy Statement of the Proposed Sub-Advisory Agreement is only a summary. The Proposed Sub-Advisory Agreement is attached as Exhibit B. You should read the Proposed Sub-Advisory Agreement.
Information Concerning FAIA
FAIA is a Minnesota corporation located at 5161 Miller Trunk Highway, Duluth, MN 55811. The names, addresses, and principal occupations of the principal executive officers of FAIA as of the date of this Proxy Statement are set forth below:
| Name and Address*: | Principal Occupation: |
| Curtis Teberg | President |
| Ann Hockman | Chief Compliance Officer |
* Each officer’s address is in care of First Associated Investment Advisors, Inc., 5161 Miller Trunk Highway, Duluth, MN 55811.
None of the Trustees or officers of the Trust is an officer, employer or shareholder of FAIA. None of the Trustees or officers of the Trust had any material direct or indirect interest in any transactions or proposed transactions with FAIA during the past fiscal year.
Evaluation by the Board of Trustees
At the Board Meeting, the Board considered the approval of the Sub-Advisory Agreements with FAIA. The Board relied on the advice of independent legal counsel and its own business judgment in determining the material factors to be considered in evaluating the Sub-Advisory Agreements and the weight to be given to each factor. The conclusions reached by the Board were based on an evaluation of all of the information provided and were not the result of any single factor. Moreover, each Trustee may have afforded different weight to the various factors in reaching conclusions with respect to the Sub-Advisory Agreements.
Nature, Extent and Quality of Service. The Board recalled that earlier in the Meeting it had considered the nature, extent, and quality of services provided by FAIA as adviser to the Fund. The Board compared the services that FAIA currently provides as adviser to the Fund to the services to be provided by FAIA as sub-adviser. The Board noted FAIA’s continued commitment to the Fund’s
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shareholders and recognition of the importance of Curt Teberg remaining as portfolio manager of the Fund. The Board observed FAIA would continue to manage the portfolio and allocation decisions of the Fund and assist with nearly all service requests from shareholders. The Board further noted that FAIA had reported no material compliance or litigation issues over the past 36 months. The Board concluded that it could expect FAIA to continue providing high quality service to the Fund and its shareholders.
Performance. The Board recalled its review of the Fund’s performance earlier in the Meeting, noting that the current investment strategy, objective, and portfolio manager of the Fund would remain the same even with Absolute as adviser to the Fund. The Board concluded that it was reasonable to expect Absolute and FAIA had the potential to provide satisfactory performance for the Fund and its shareholders.
Fees and Expenses. The Board reviewed the proposed sub-advisory fee, noting FAIA would receive 20% of the net advisory fee that Absolute received as adviser to the Fund. The Board considered the sub-advisory fee in light of the services to be provided by FAIA. The Board concluded that the proposed advisory and sub-advisory fees for the Fund were not unreasonable.
Economies of Scale. The Board reviewed the size of the Fund and Absolute’s asset projections. The Board noted the Absolute’s assertion that the asset levels at which economies of scale would be achieved were unlikely to be realized in the near term but noted its willingness to discuss the implementation of breakpoints as the Fund’s assets grew and Absolute achieved economies of scale related to its operations. After further discussion, it was the consensus of the Board that the absence of breakpoints was reasonable. The Board agreed to monitor this issue and revisit this discussion at the appropriate time.
Conclusion. Having requested and reviewed such information from FAIA as the Board believed to be reasonably necessary to evaluate the terms of the Sub-Advisory Agreements, and as assisted by the advice of independent counsel, the Board concluded that FAIA’s sub-advisory fee charged to the Fund was not unreasonable and that approval of the Sub-Advisory Agreements was in the best interests of the Fund and its respective shareholders.
The Board of Trustees of the Trust, consisting entirely of Independent Trustees, recommends that shareholders of the Fund vote “FOR” approval of the Sub-Advisory Agreements.
OTHER INFORMATION
The Fund is a diversified series of the Northern Lights Fund Trust III, an open-end investment management company organized as a Delaware statutory trust and formed by an Agreement and Declaration of Trust on December 5, 2011. The Trust’s principal executive offices are located at 225 Pictoria Drive, Suite 450, Cincinnati, OH 45246. The Board supervises the business activities of the Fund. Like other mutual funds, the Fund retains various organizations to perform specialized services. The Fund retains Absolute as investment adviser and FAIA as investment sub-adviser on an interim basis. Northern Lights Distributors, LLC, located at 4221 North 203rd Stret, Suite 100, Elkhorn, NE 68022, serves as principal underwriter and distributor of the Fund. Ultimus Fund Solutions, LLC,
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with principal offices located at 225 Pictoria Drive, Suite 450, Cincinnati, OH 45246, provides the Fund with transfer agent, accounting, compliance, and administrative services.
THE PROXY
The Board solicits proxies so that each shareholder has the opportunity to vote on the proposal to be considered at the Meeting. A proxy for voting your shares at the Meeting is enclosed. The shares represented by each valid proxy received in time will be voted at the Meeting as specified. If no specification is made, the shares represented by a duly executed proxy will be voted for approval of the Proposed Advisory Agreement and Proposed Sub-Advisory Agreement and at the discretion of the holders of the proxy on any other matter that may come before the meeting that the Trust did not have notice of a reasonable time prior to the mailing of this Proxy Statement. You may revoke your proxy at any time before it is exercised by (1) submitting a duly executed proxy bearing a later date, (2) submitting a written notice to the President of the Trust revoking the proxy, or (3) attending and voting in person at the Meeting.
VOTING SECURITIES AND VOTING
As of the Record Date, there were shares of beneficial interest of the Fund issued and outstanding as follows:
[INSERT OUTSTANDING SHARES]
All shareholders of record of the Fund on the Record Date are entitled to vote at the Meeting on Proposals 1 and 2 with respect to the Fund. Each shareholder is entitled to one (1) vote per share held, and fractional votes for fractional shares held, on any matter submitted to a vote at the Meeting. There are no dissenters’ rights of appraisal in connection with any shareholder vote to be taken at the Meeting.
An affirmative vote of the holders of a majority of the outstanding shares of the Fund is required for the approval of the each of the Proposed Advisory Agreement and Proposed Sub-Advisory Agreement with respect to the Fund. As defined in the 1940 Act, a vote of the holders of a majority of the outstanding shares of the Fund means the vote of (1) 67% or more of the voting shares of the Fund present at the Meeting, if the holders of more than 50% of the outstanding shares of the Fund are present in person or represented by proxy, or (2) more than 50% of the outstanding voting shares of the Fund, whichever is less.
When a proxy is returned as an abstention or “broker non-vote” (i.e., shares held by brokers or nominees, typically in “street name,” as to which (i) instructions have not been received from the beneficial owners or persons entitled to vote and (ii) the broker or nominee does not have discretionary voting power on a particular matter), the shares represented by the proxy will be treated as present for purposes of determining a quorum and as votes against Proposals 1 or 2. In addition, under the rules of the New York Stock Exchange (“NYSE”), if a NYSE-member broker has not received instructions from beneficial owners or persons entitled to vote and the proposal to be voted upon may “affect substantially” a shareholder’s rights or privileges, the broker may not vote the shares as to that proposal even if it has discretionary voting power. The NYSE considers Proposals 1 and 2
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to be non-routine matters that affects substantially a shareholder’s rights or privileges. As a result, these shares also will be treated as broker non-votes for purposes of Proposals 1 and 2 (but will not be treated as broker non-votes for other proposals, including adjournment of the special meeting).
Treating broker non-votes as votes against Proposals 1 or 2 may result in the proposal not being approved, even though the votes cast in favor would have been sufficient to approve the proposal if some or all of the broker non-votes had been withheld.
Security Ownership of Management AND Certain Beneficial Owners
As of the Record Date, the Trust is unaware of any beneficial shareholders of 5% or more of the outstanding shares of the Fund. However, as the Record Date, the following shareholders were beneficial owners of 5% or more of the outstanding shares of the Fund:
| Name and Address | Shares | Class | Percentage of Class |
As a group, the Trustees and officers of the Trust owned less than 1% of the outstanding shares of the Fund as of the Record Date. As a result, the Trustees and officers as a group are not deemed to control the Fund.
SHAREHOLDER PROPOSALS
The Trust has not received any shareholder proposals to be considered for presentation at the Meeting. Under the proxy rules of the United States Securities and Exchange Commission, shareholder proposals may, under certain conditions, be included in the Trust’s Proxy Statement and proxy for a particular meeting. Under these rules, proposals submitted for inclusion in the Trust’s proxy materials must be received by the Trust within a reasonable time before the solicitation is made. The fact that the Trust receives a shareholder proposal in a timely manner does not ensure its inclusion in its proxy materials because there are other requirements in the proxy rules relating to such inclusion. You should be aware that annual meetings of shareholders are not required as long as there is no particular requirement under the 1940 Act, which must be met by convening such a shareholder meeting. Any shareholder proposal should be sent to Viktoriya Pallino, Secretary, Northern Lights Fund Trust III, 80 Arkay Drive, Suite 110, Hauppauge, NY 11788.
COST OF SOLICITATION
The Board is making this solicitation of proxies. The Trust has engaged EQ Fund Solutions LLC, a proxy solicitation firm, to assist in the solicitation. The cost of preparing and mailing this Proxy Statement, the accompanying Notice of Special Meeting and proxy and any additional materials relating to the meeting and the cost of soliciting proxies will be borne by Absolute. In addition to solicitation by mail, the Trust will request banks, brokers and other custodial nominees and fiduciaries to supply proxy materials to the respective beneficial owners of shares of the Fund of whom they have knowledge, and Absolute will reimburse them for their expenses in so doing. Certain officers, employees and agents of the Trust and Absolute may solicit proxies in person or by
| 11 |
telephone, facsimile transmission, or mail, for which they will not receive any special compensation. The estimated fees anticipated to be paid to the proxy solicitor are approximately $[DOLLAR]. The proxy solicitor will prepare and mail the Proxy Statement, Notice of Special Meeting and all materials relating to the meeting to each Fund’s shareholders, and will solicit and tabulate votes of each Fund’s shareholders.
OTHER MATTERS
The Board knows of no other matters to be presented at the Meeting other than as set forth above. If any other matters properly come before the Meeting that the Trust did not have notice of a reasonable time prior to the mailing of this Proxy Statement, the holders of the proxy will vote the shares represented by the proxy on such matters in accordance with their best judgment, and discretionary authority to do so is included in the proxy.
PROXY DELIVERY
If you and another shareholder share the same address, the Trust may only send one Proxy Statement unless you or the other shareholder(s) request otherwise. Call or write to the Trust if you wish to receive a separate copy of the Proxy Statement, and the Trust will promptly mail a copy to you. You may also call or write to the Trust if you wish to receive a separate proxy in the future or if you are receiving multiple copies now and wish to receive a single copy in the future. For such requests, call the Trust at [TOLL FREE NUMBER] or write the Trust at 225 Pictoria Drive, Suite 450, Cincinnati, OH 45246.
Important Notice Regarding the Availability of Proxy Materials for the Shareholder Meeting to be Held on [MEETING DATE], 2024
A copy of the Notice of Shareholder Meeting, the Proxy Statement, and Proxy Card are available at [INSERT WEBSITE]
BY ORDER OF THE BOARD OF TRUSTEES
Viktoriya Pallino, Secretary
Dated: [MAILING DATE], 2023
If you have any questions before you vote, please call our proxy information line at [TOLL FREE NUMBER. Representatives are available Monday through Friday 9 a.m. to 10 p.m., Eastern Time to answer your questions about the proxy material or about how to how to cast your vote. You may also receive a telephone call reminding you to vote your shares. Thank you for your participation in this important initiative.
Please date and sign the enclosed proxy and return it promptly in the enclosed reply envelope or Call the number listed on your proxy card.
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Northern Lights Fund Trust III
225 Pictoria Drive, Suite 450
Cincinnati, OH 45246
The Teberg Fund
SPECIAL MEETING OF SHAREHOLDERS TO BE HELD [MEETING DATE], 2024
The undersigned, revoking previous proxies, if any, with respect to the shares described below, hereby appoints Timothy Burdick and Viktoriya Pallino, each an attorney, agent, and proxy of the undersigned, with full power of substitution, to vote at the Special Meeting of Shareholders (the “Meeting”) of Northern Lights Fund Trust III (the “Trust”) to be held at offices of the Trust’s counsel, Thompson Hine LLP, 41 S. High Street, Suite 1700, Columbus, OH 45246 on [MEETING DATE], 2024 at 10:00 a.m., Eastern time, and at any and all adjournments thereof, all shares of beneficial interest of The Teberg Fund (the “Fund”), on the proposals set forth below and any other matters properly brought before the Meeting.
THIS PROXY WILL, WHEN PROPERLY EXECUTED, BE VOTED AS DIRECTED HEREIN BY THE SIGNING SHAREHOLDER(S). IF NO CONTRARY DIRECTION IS GIVEN WHEN THE DULY EXECUTED PROXY IS RETURNED, THIS PROXY WILL BE VOTED “FOR” THE NEW ADVISORY AGREEMENT AND, IN THE APPOINTED PROXIES’ DISCRETION, UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE MEETING.
YOUR SIGNATURE IS REQUIRED FOR YOUR VOTE TO BE COUNTED. The undersigned acknowledges receipt with this Proxy Statement of the Board of Trustees. Your signature(s) on this should be exactly as your name(s) appear on this Proxy. If the shares are held jointly, each holder should sign this Proxy. Attorneys-in-fact, executors, administrators, trustees or guardians should indicate the full title and capacity in which they are signing.
_______________________________________ Signature Date
_______________________________________
Signature of Joint Shareholder Date
▲
FOLD HERE PLEASE DO NOT TEAR ▲
THIS PROXY IS SOLICITED ON BEHALF OF THE COMPANY’S BOARD OF TRUSTEES, AND MAY BE REVOKED PRIOR TO ITS EXERCISE BY FILING WITH THE SECRETARY OF THE COMPANY AN INSTRUMENT REVOKING THIS PROXY OR A DULY EXECUTED PROXY BEARING A LATER DATE, OR BY APPEARING IN PERSON AND VOTING AT THE MEETING.
TO VOTE, MARK ONE BOX IN BLUE OR BLACK INK. Example:
| FOR | AGAINST | ABSTAIN | |
| 1. To approve a new investment advisory agreement between the Trust, on behalf of the Fund, and Absolute Capital Management, LLC. | ¨ | ¨ | ¨ |
| 2. To approve a new sub-advisory agreement between Absolute Capital Management, LLC and First Associated Investment Advisors, Inc.. | ¨ | ¨ | ¨ |
| 3. To transact such other business as may properly come before the meeting or any adjournments or postponements thereof. | ¨ | ¨ | ¨ |
A copy of the Proxy Statement is available online at: [INSERT WEBSITE]
YOUR VOTE IS IMPORTANT NO MATTER HOW MANY SHARES YOU OWN. PLEASE SIGN AND DATE THIS PROXY AND RETURN IT PROMPTLY IN THE ENCLOSED ENVELOPE.
| A-1 |
Exhibit A
INVESTMENT ADVISORY AGREEMENT
between
NORTHERN LIGHTS FUND TRUST III
and
ABSOLUTE CAPITAL MANAGEMENT, LLC
This INVESTMENT ADVISORY AGREEMENT (the “Agreement”) is made as of [ ] between NORTHERN LIGHTS FUND TRUST III, a Delaware statutory trust (the “Trust”), and Absolute Capital Management, LLC, a Pennsylvania limited liability company (the “Adviser”) located at 101 Pennsylvania, Blvd., Pittsburgh, PA 15228.
RECITALS:
WHEREAS, the Trust is an open-end management investment company and is registered as such under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust is authorized to issue shares of beneficial interest in separate series, each having its own investment objective or objectives, policies and limitations;
WHEREAS, the Trust offers shares in the series named on Appendix A hereto (such series, together with all other series subsequently established by the Trust and made subject to this Agreement in accordance with Section 1.3, being herein referred to as a "Fund," and collectively as the "Funds");
WHEREAS, the Adviser is registered as an investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Trust desires to retain the Adviser to render investment advisory services to the Trust with respect to the Fund in the manner and on the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
1. Services of the Adviser.
1.1 Investment Advisory Services. The Adviser shall act as the investment adviser to the Fund and, as such, shall (i) obtain and evaluate such information relating to the economy, industries, business, securities markets and securities as it may deem necessary or useful in discharging its responsibilities hereunder, (ii) formulate a continuing program for the investment of the assets of the Fund in a manner consistent with its investment objective(s), policies and restrictions, and (iii) determine from time to time securities to be purchased, sold, retained or lent by the Fund, and implement those decisions, including the selection of entities with or through which such purchases, sales or loans are to be effected; provided, that the Adviser will place orders pursuant to its investment determinations either directly with the issuer or with a broker or dealer, and if with a broker or dealer, (a) will attempt to obtain the best price and execution of its orders, and (b) may nevertheless in its discretion purchase and sell portfolio securities from and to brokers who provide the Adviser with research, analysis, advice and similar services and pay such brokers in return a higher commission than may be charged by other brokers.
| A-2 |
The Trust hereby authorizes any entity or person associated with the Adviser or any sub-adviser retained by the Adviser pursuant to Section 9 of this Agreement, which is a member of a national securities exchange, to effect any transaction on the exchange for the account of the Trust which is permitted by Section 11(a) of the Securities Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and the Trust hereby consents to the retention of compensation for such transactions in accordance with Rule 11a2-2(T)(a)(2)(iv) provided the transaction complies with the Trust’s Rule 17e-1 policies and procedures.
The Adviser shall carry out its duties with respect to the Fund's investments in accordance with applicable law and the investment objectives, policies and restrictions set forth in the Fund's then-current Prospectus and Statement of Additional Information, and subject to such further limitations as the Trust may from time to time impose by written notice to the Adviser.
1.2 Administrative Services. The Trust has engaged the services of an administrator. The Adviser shall provide such additional administrative services as reasonably requested by the Board of Trustees or officers of the Trust; provided, that the Adviser shall not have any obligation to provide under this Agreement any direct or indirect services to Trust shareholders, any services related to the distribution of Trust shares, or any other services which are the subject of a separate agreement or arrangement between the Trust and the Adviser. Subject to the foregoing, in providing administrative services hereunder, the Adviser shall:
1.2.1 Office Space, Equipment and Facilities. Provide such office space, office equipment and office facilities as are adequate to fulfill the Adviser’s obligations hereunder.
1.2.2 Personnel. Provide, without remuneration from or other cost to the Trust, the services of individuals competent to perform the administrative functions which are not performed by employees or other agents engaged by the Trust or by the Adviser acting in some other capacity pursuant to a separate agreement or arrangement with the Trust.
1.2.3 Agents. Assist the Trust in selecting and coordinating the activities of the other agents engaged by the Trust, including the Trust's shareholder servicing agent, custodian, administrator, independent auditors and legal counsel.
1.2.4 Trustees and Officers. Authorize and permit the Adviser's directors, officers and employees who may be elected or appointed as Trustees or officers of the Trust to serve in such capacities, without remuneration from or other cost to the Trust.
1.2.5 Books and Records. Assure that all financial, accounting and other records required to be maintained and preserved by the Adviser on behalf of the Trust are maintained and preserved by it in accordance with applicable laws and regulations.
1.2.6 Reports and Filings. Assist in the preparation of (but not pay for) all periodic reports by the Fund to its shareholders and all reports and filings required to maintain the registration and qualification of the Fund and Fund shares, or to meet other regulatory or tax requirements applicable to the Fund, under federal and state securities and tax laws.
1.3 Additional Series. In the event that the Trust establishes one or more series after the effectiveness of this Agreement ("Additional Series"), Appendix A to this Agreement may be amended to make such Additional Series subject to this Agreement upon the approval of the Board of Trustees of the Trust and the shareholder(s) of the Additional Series, in accordance with the provisions of the 1940 Act. The Trust or the Adviser may elect not to make any such series subject to this Agreement.
| A-3 |
1.4 Change in Management or Control. The Adviser shall provide at least sixty (60) days' prior written notice to the Trust of any change in the ownership or management of the Adviser, or any event or action that may constitute a change in “control,” as that term is defined in Section 2 of the 1940 Act. The Adviser shall provide prompt notice of any change in the portfolio manager(s) responsible for the day-to-day management of the Fund.
2. Expenses of the Fund.
2.1 Expenses to be Paid by Adviser. The Adviser shall pay all salaries, expenses and fees of the officers, Trustees and employees of the Trust who are officers, directors, members or employees of the Adviser.
In the event that the Adviser pays or assumes any expenses of the Trust not required to be paid or assumed by the Adviser under this Agreement, the Adviser shall not be obligated hereby to pay or assume the same or any similar expense in the future; provided, that nothing herein contained shall be deemed to relieve the Adviser of any obligation to the Fund under any separate agreement or arrangement between the parties.
2.2 Expenses to be Paid by the Fund. The Fund shall bear all expenses of its operation, except those specifically allocated to the Adviser under this Agreement or under any separate agreement between the Trust and the Adviser. Subject to any separate agreement or arrangement between the Trust and the Adviser, the expenses hereby allocated to the Fund, and not to the Adviser, include but are not limited to:
2.2.1 Custody. All charges of depositories, custodians, and other agents for the transfer, receipt, safekeeping, and servicing of the Fund's cash, securities, and other property.
2.2.2 Shareholder Servicing. All expenses of maintaining and servicing shareholder accounts, including but not limited to the charges of any shareholder servicing agent, dividend disbursing agent, transfer agent or other agent engaged by the Trust to service shareholder accounts.
2.2.3 Shareholder Reports. All expenses of preparing, setting in type, printing and distributing reports and other communications to shareholders.
2.2.4 Prospectuses. All expenses of preparing, converting to EDGAR format, filing with the Securities and Exchange Commission (the “SEC”) or other appropriate regulatory body, setting in type, printing and mailing annual or more frequent revisions of the Fund's Prospectus and Statement of Additional Information and any supplements thereto and of supplying them to shareholders.
2.2.5 Pricing and Portfolio Valuation. All expenses of computing the Fund's net asset value per share, including any equipment or services obtained for the purpose of pricing shares or valuing the Fund's investment portfolio.
2.2.6 Communications. All charges for equipment or services used for communications between the Adviser or the Trust and any custodian, shareholder servicing agent, portfolio accounting services agent, or other agent engaged by the Trust.
2.2.7 Legal and Accounting Fees. All charges for services and expenses of the Trust's legal counsel and independent accountants.
2.2.8 Trustees' Fees and Expenses. All compensation of Trustees other than those affiliated with the Adviser, all expenses incurred in connection with such unaffiliated Trustees' services as Trustees, and all other expenses of meetings of the Trustees and committees of the Trustees.
| A-4 |
2.2.9 Shareholder Meetings. All expenses incidental to holding meetings of shareholders, including the printing of notices and proxy materials, and proxy solicitations therefor.
2.2.10 Federal Registration Fees. All fees and expenses of registering and maintaining the registration of the Fund under the 1940 Act and the registration of the Fund's shares under the Securities Act of 1933 (the "1933 Act"), including all fees and expenses incurred in connection with the preparation, converting to EDGAR format, setting in type, printing, and filing of any Registration Statement, Prospectus and Statement of Additional Information under the 1933 Act or the 1940 Act, and any amendments or supplements that may be made from time to time.
2.2.11 State Registration Fees. All fees and expenses of taking required action to permit the offer and sale of the Fund's shares under securities laws of various states or jurisdictions, and of registration and qualification of the Fund under all other laws applicable to the Trust or its business activities (including registering the Trust as a broker-dealer, or any officer of the Trust or any person as agent or salesperson of the Trust in any state).
2.2.12 Confirmations. All expenses incurred in connection with the issue and transfer of Fund shares, including the expenses of confirming all share transactions.
2.2.13 Bonding and Insurance. All expenses of bond, liability, and other insurance coverage required by law or regulation or deemed advisable by the Trustees of the Trust, including, without limitation, such bond, liability and other insurance expenses that may from time to time be allocated to the Fund in a manner approved by its Trustees.
2.2.14 Brokerage Commissions. All brokers' commissions and other charges incident to the purchase, sale or lending of the Fund's portfolio securities.
2.2.15 Taxes. All taxes or governmental fees payable by or with respect to the Fund to federal, state or other governmental agencies, domestic or foreign, including stamp or other transfer taxes.
2.2.16 Trade Association Fees. All fees, dues and other expenses incurred in connection with the Trust's membership in any trade association or other investment organization.
2.2.18 Compliance Fees. All charges for services and expenses of the Trust's Chief Compliance Officer.
2.2.19 Nonrecurring and Extraordinary Expenses. Such nonrecurring and extraordinary expenses as may arise including the costs of actions, suits, or proceedings to which the Trust is a party and the expenses the Trust may incur as a result of its legal obligation to provide indemnification to its officers, Trustees and agents.
3. Advisory Fee.
As compensation for all services rendered, facilities provided and expenses paid or assumed by the Adviser under this Agreement, the Fund shall pay the Adviser on the last day of each month, or as promptly as possible thereafter, a fee calculated by applying a monthly rate, based on an annual percentage rate, to the Fund's average daily net assets for the month. The annual percentage rate applicable to the Fund is set forth in Appendix A to this Agreement, as it may be amended from time to time in accordance with Section 1.3 of this Agreement. If this Agreement shall be effective for only a portion of a month with respect to the Fund, the aforesaid fee shall be prorated for the portion of such month during which this Agreement is in effect for the Fund.
4. Proxy Voting.
| A-5 |
The Adviser will vote, or make arrangements to have voted, all proxies solicited by or with respect to the issuers of securities in which assets of a Fund may be invested from time to time. Such proxies will be voted in a manner that you deem, in good faith, to be in the best interest of the Fund and in accordance with your proxy voting policy. The Adviser agrees to provide a copy of its proxy voting policy to the Trust prior to the execution of this Agreement, and any amendments thereto promptly.
5. Records.
5.1 Tax Treatment. Both the Adviser and the Trust shall maintain, or arrange for others to maintain, the books and records of the Trust in such a manner that treats the Fund as a separate entity for federal income tax purposes.
5.2 Ownership. All records required to be maintained and preserved by the Trust pursuant to the provisions or rules or regulations of the SEC under Section 31(a) of the 1940 Act and maintained and preserved by the Adviser on behalf of the Trust are the property of the Trust and shall be surrendered by the Adviser promptly on request by the Trust; provided, that the Adviser may at its own expense make and retain copies of any such records.
6. Reports to Adviser.
The Trust shall furnish or otherwise make available to the Adviser such copies of the Fund's Prospectus, Statement of Additional Information, financial statements, proxy statements, reports and other information relating to its business and affairs as the Adviser may, at any time or from time to time, reasonably require in order to discharge its obligations under this Agreement.
7. Reports to the Trust.
The Adviser shall prepare and furnish to the Trust such reports, statistical data and other information in such form and at such intervals as the Trust may reasonably request.
8. Code of Ethics.
The Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 (“Code of Ethics”) under the 1940 Act and will provide the Trust with a copy of the Code of Ethics and evidence of its adoption. The Adviser will provide to the Board of Trustees of the Trust at least annualy a written report that describes any issues arising under the Code of Ethics since the last report to the Board of Trustees, including, but not limited to, information about material violations of the Code of Ethics and sanctions imposed in response to the material violations; and which certifies that the Adviser has adopted procedures reasonably necessary to prevent "access persons" (as that term is defined in Rule 17j-1) from violating the Code of Ethics.
9. Retention of Sub-Adviser.
Subject to the Trust's obtaining the initial and periodic approvals required under Section 15 of the 1940 Act, the Adviser may retain one or more sub-advisers, at the Adviser's own cost and expense, for the purpose of managing the investments of the assets of one or more Funds of the Trust. Retention of one or more sub-advisers shall in no way reduce the responsibilities or obligations of the Adviser under this Agreement and the Adviser shall, subject to Section 11 of this Agreement, be responsible to the Trust for all acts or omissions of any sub-adviser in connection with the performance of the Adviser's duties hereunder.
10. Services to Other Clients.
| A-6 |
Nothing herein contained shall limit the freedom of the Adviser or any affiliated person of the Adviser to render investment management and administrative services to other investment companies, to act as investment adviser or investment counselor to other persons, firms or corporations, or to engage in other business activities.
11. Limitation of Liability of Adviser and its Personnel.
Neither the Adviser nor any director, manager, officer or employee of the Adviser performing services for the Trust at the direction or request of the Adviser in connection with the Adviser's discharge of its obligations hereunder shall be liable for any error of judgment or mistake of law or for any loss suffered by the Trust in connection with any matter to which this Agreement relates, and the Adviser shall not be responsible for any action of the Trustees of the Trust in following or declining to follow any advice or recommendation of the Adviser or any sub-adviser retained by the Adviser pursuant to Section 9 of this Agreement; PROVIDED, that nothing herein contained shall be construed (i) to protect the Adviser against any liability to the Trust or its shareholders to which the Adviser would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of the Adviser's duties, or by reason of the Adviser's reckless disregard of its obligations and duties under this Agreement, or (ii) to protect any director, manager, officer or employee of the Adviser who is or was a Trustee or officer of the Trust against any liability of the Trust or its shareholders to which such person would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such person's office with the Trust.
12. Effect of Agreement.
Nothing herein contained shall be deemed to require to the Trust to take any action contrary to its Declaration of Trust or its By-Laws or any applicable law, regulation or order to which it is subject or by which it is bound, or to relieve or deprive the Trustees of the Trust of their responsibility for and control of the conduct of the business and affairs of the Trust.
13. Term of Agreement.
With respect to the Fund, the term of this Agreement shall begin as of the date and year upon which this Agreement is executed, and unless sooner terminated as hereinafter provided, this Agreement shall remain in effect for a period of two years. Thereafter, this Agreement shall continue in effect with respect to the Fund from year to year, subject to the termination provisions and all other terms and conditions hereof; PROVIDED, such continuance with respect to the Fund is approved at least annually by vote of the holders of a majority of the outstanding voting securities of the Fund or by the Trustees of the Trust; PROVIDED, that in either event such continuance is also approved annually by the vote, cast in person at a meeting called for the purpose of voting on such approval, of a majority of the Trustees of the Trust who are not parties to this Agreement or interested persons of either party hereto. The Adviser shall furnish to the Trust, promptly upon its request, such information as may reasonably be necessary to evaluate the terms of this Agreement or any extension, renewal or amendment thereof.
14. Amendment or Assignment of Agreement.
Any amendment to this Agreement shall be in writing signed by the parties hereto; PROVIDED, that no such amendment shall be effective unless authorized (i) by resolution of the Trustees of the Trust, including the vote or written consent of a majority of the Trustees of the Trust who are not parties to this Agreement or interested persons of either party hereto, and (ii) by vote of a majority of the outstanding voting securities of the Fund affected by such amendment if required by applicable law. This Agreement shall terminate automatically and immediately in the event of its assignment.
15. Termination of Agreement.
| A-7 |
This Agreement may be terminated as to any Fund at any time by either party hereto, without the payment of any penalty, upon sixty (60) days' prior written notice to the other party; PROVIDED, that in the case of termination by any Fund, such action shall have been authorized (i) by resolution of the Trust's Board of Trustees, including the vote or written consent of Trustees of the Trust who are not parties to this Agreement or interested persons of either party hereto, or (ii) by vote of majority of the outstanding voting securities of the Fund.
16. Use of Name.
The Trust is named the Northern Lights Fund Trust III and each Fund may be identified, in part, by the name "Northern Lights."
17. Declaration of Trust.
The Adviser is hereby expressly put on notice of the limitation of shareholder liability as set forth in the Trust's Declaration of Trust and agrees that the obligations assumed by the Trust or the Fund, as the case may be, pursuant to this Agreement shall be limited in all cases to the Trust or the Fund, as the case may be, and its assets, and the Adviser shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Trust. In addition, the Adviser shall not seek satisfaction of any such obligations from the Trustees or any individual Trustee. The Adviser understands that the rights and obligations of any Fund under the Declaration of Trust are separate and distinct from those of any and all other Funds. The Adviser further understands and agrees that no Fund of the Trust shall be liable for any claims against any other Fund of the Trust and that the Adviser must look solely to the assets of the pertinent Fund of the Trust for the enforcement or satisfaction of any claims against the Trust with respect to that Fund.
| A-8 |
18. Confidentiality.
The Adviser agrees to treat all records and other information relating to the Trust and the securities holdings of the Fund as confidential and shall not disclose any such records or information to any other person unless (i) the Board of Trustees of the Trust has approved the disclosure or (ii) such disclosure is compelled by law. In addition, the Adviser and the Adviser's officers, directors, members and employees are prohibited from receiving compensation or other consideration, for themselves or on behalf of a Fund, as a result of disclosing the Fund's portfolio holdings. The Adviser agrees that, consistent with the Adviser's Code of Ethics, neither the Adviser nor the Adviser's officers, directors, members or employees may engage in personal securities transactions based on nonpublic information about a Fund's portfolio holdings.
19. Governing Law.
This Agreement shall be governed and construed in accordance with the laws of the State of New York.
20. Interpretation and Definition of Terms.
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 term or provision of the 1940 Act and to interpretation 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 SEC validly issued pursuant to the 1940 Act. Specifically, the terms "vote of a majority of the outstanding voting securities," "interested persons," "assignment" and "affiliated person," as used in this Agreement shall have the meanings assigned to them by Section 2(a) of the 1940 Act. In addition, when the effect of a requirement of the 1940 Act reflected in any provision of this Agreement is modified, interpreted or relaxed by a rule, regulation or order of the SEC, whether of special or of general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order.
21. Captions.
The captions in this Agreement are included for convenience of reference only and in no way define or delineate any of the provisions hereof or otherwise affect their construction or effect.
22. Execution in Counterparts.
This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.
[Signature Page Follows]
| A-9 |
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date and year first above written.
NORTHERN LIGHTS FUND TRUST III
By: _________________
Name: Brian Curley
Title: President
ABSOLUTE CAPITAL MANAGEMENT, LLC
By: ___________________
Name:
Title:
| A-10 |
NORTHERN LIGHTS FUND TRUST III
INVESTMENT ADVISORY AGREEMENT
APPENDIX A
|
NAME OF FUND |
ANNUAL ADVISORY FEE AS A % OF AVERAGE NET ASSETS OF THE FUND |
| The Teberg Fund | 1.25% |
| A-11 |
Exhibit B
INVESTMENT SUB-ADVISORY AGREEMENT
between
ABSOLUTE CAPITAL MANAGEMENT, LLC
and
FIRST ASSOCIATED INVESTMENT ADVISORS, INC.
THIS AGREEMENT (“Agreement”) is made and entered into as of [ ] day of [ ], 2023, by and between ABSOLUTE CAPITAL MANAGEMENT, LLC, (the “Adviser”), a Pennsylvania limited liability company registered under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) located at 101 Pennsylvania, Blvd., Pittsburgh, PA 15228, and First Associated Investment Advisors, Inc., a Minnesota corporation (the “Subadviser”) and also registered under the Advisers Act, with respect to the Fund listed on Exhibit A hereto (the “Fund”), series of the NORTHERN LIGHTS FUND TRUST III, a Delaware statutory trust (the “Trust”).
WITNESSETH:
WHEREAS, the Trust is registered with the U.S. Securities and Exchange Commission (the “SEC”) as an open-end management investment company under the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the Adviser has, pursuant to an Investment Advisory Agreement with the Trust dated as of [ ], as amended (the “Advisory Agreement”), been retained to act as investment adviser for the Fund;
WHEREAS, the Adviser represents that the Advisory Agreement permits the Adviser to delegate certain of its duties under the Advisory Agreement to other investment advisers, subject to the requirements of the 1940 Act; and
WHEREAS, the Adviser desires to retain Subadviser to assist it in the provision of a continuous investment program for that portion of the Fund’s assets that the Adviser will assign to the Subadviser, and Subadviser is willing to render such services subject to the terms and conditions set forth in this Agreement,
NOW, THEREFORE, the parties do mutually agree and promise as follows with respect to the Fund:
Appointment as Subadviser. In accordance with the Advisory Agreement, the Adviser hereby appoints the Subadviser to act as subadviser with respect to the Fund for the period and on the terms set forth in this Agreement. The Subadviser accepts such appointment and agrees to render or cause to be rendered the services set forth for the compensation herein specified. It is recognized that the Subadviser and certain of its affiliates may act as investment adviser to one or more other investment companies and other managed accounts and that the Adviser and the Trust do not object to such activities.
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Duties of Subadviser.
Subject to the supervision of the Board of Trustees (the “Board”) and the Adviser, the Subadviser shall regularly provide the Fund, with respect to such portion of the Fund’s assets as shall be allocated to the Subadviser by the Adviser from time to time (the “Allocated Assets”), with investment research, advice, management and supervision and shall furnish a continuous investment program for the Allocated Assets consistent with the Fund’s investment objectives, policies and restrictions, as stated in the Fund’s current Prospectus and Statement of Additional Information (“SAI”), and subject to such other restrictions and limitations as directed by the officers of the Adviser or the Trust by notice in writing to the Subadviser. The Adviser will provide the Subadviser with reasonable advance notice of any change in the Fund’s investment objectives, policies and restrictions as stated in the Prospectus and SAI, and the Subadviser shall, in the performance of its duties and obligations under this Agreement, manage the Allocated Assets consistent with such changes, provided that the Subadviser has received prompt notice of the effectiveness of such changes from the Trust or the Adviser. The Subadviser shall, with respect to the Allocated Assets, determine from time to time what securities and other investments and instruments will be purchased, retained, sold or exchanged by the Fund and what portion of the Allocated Assets will be held in the various securities and other investments in which the Fund invests, and shall implement those decisions, all subject to the provisions of the Trust’s Declaration of Trust and By-Laws (collectively, the “Governing Documents”), the 1940 Act and the applicable rules and regulations promulgated thereunder by the Securities and Exchange Commission (the “SEC”), interpretive guidance issued thereunder by the SEC staff and any other applicable federal and state law, as well as the investment objectives, policies and restrictions of the Fund referred to above, any written instructions and directions of the Board or the Adviser provided to the Subadviser from time to time, and any other specific policies adopted by the Board and disclosed to the Subadviser. The Subadviser’s responsibility for providing investment research, advice, management and supervision to the Fund is limited to that discrete portion of the Fund represented by the Allocated Assets and the Subadviser is prohibited from directly or indirectly consulting with any other subadviser for a portion of the Fund’s assets concerning Fund transactions in securities or other assets. The Subadviser is authorized as the agent of the Trust to give instructions with respect to the Allocated Assets to the custodian of the Fund as to deliveries of securities and other investments and payments of cash for the account of the Fund. Subject to applicable provisions of the 1940 Act, the investment program to be provided hereunder may entail the investment of all or substantially all of the assets of the Fund in one or more investment companies.
The Subadviser will place orders pursuant to its investment determinations for the Fund either directly with the issuer or with any broker or dealer, foreign currency dealer, futures commission merchant or others selected by it. In connection with the selection of such brokers or dealers and the placing of such orders, subject to applicable law, brokers or dealers may be selected who also provide brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) to the Fund and/or the other accounts over which the Subadviser or its affiliates exercise investment discretion. The Subadviser is authorized to pay a broker or dealer who provides such brokerage and research services a commission for executing a portfolio transaction for the Fund which is in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Subadviser determines in good faith that such amount of commission is reasonable in relation to the value of the brokerage and research services provided by such broker or dealer. This determination may be viewed
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in terms of either that particular transaction or the overall responsibilities which the Subadviser and its affiliates have with respect to accounts over which they exercise investment discretion. The Board may adopt policies and procedures that modify and restrict the Subadviser’s authority regarding the execution of the Fund’s portfolio transactions provided herein.
Pursuant to the Advisory Agreement, the Fund authorizes any entity or person associated with the Subadviser that is a member of a national securities exchange, to effect any transaction on the exchange for the account of the Trust which is permitted by Section 11(a) of the Exchange Act and Rule 11a2-2(T) thereunder, and the Trust hereby consents to the retention of compensation for such transactions in accordance with Rule 11a2-2(T)(a)(2)(iv) provided the transaction complies with the Trust’s Rule 17e-1 policies and procedures.
Unless the Adviser advises the Subadviser in writing that the right to vote proxies has been expressly reserved to the Adviser or the Trust or otherwise delegated to another party, the Subadviser shall exercise voting rights incident to any security purchased with, or comprising a portion of, the Allocated Assets, in accordance with the Subadviser’s proxy voting policies and procedures without consultation with the Adviser or the Funds. The Subadviser agrees to furnish a copy of its proxy voting policies and procedures, and any amendments thereto, to the Adviser. The Subadviser also agrees to provide information to the Adviser or the Trust regarding proxies voted with respect to the Allocated Assets pursuant this section at such times and in a format requested by the Adviser or the Trust.
The Subadviser will monitor the security valuations of the Allocated Assets. If the Subadviser believes that the Fund’s carrying value for a security does not fairly represent the price that could be obtained for the security in a current market transaction, the Subadviser will notify the Adviser promptly. In addition, the Subadviser will be available to consult with the Adviser in the event of a pricing problem and to participate in the Trust’s valuation meetings.
Books and Records. The Subadviser shall maintain separate detailed records as are required by applicable laws and regulations of all matters hereunder pertaining to the Allocated Assets (the “Fund’s Records”), including, without limitation, brokerage and other records of all securities transactions. The Subadviser acknowledges that the Fund’s Records are property of the Trust; except to the extent that the Subadviser is required to maintain the Fund’s Records under the Advisers Act or other applicable law and except that the Subadviser, at its own expense, is entitled to make and keep a copy of the Fund’s Records for its internal files. The Fund’s Records shall be available to the Adviser or the Trust at any time upon reasonable request during normal business hours and shall be available for telecopying promptly to the Adviser during any day that the Fund is open for business as set forth in the Prospectus.
Independent Contractor. In the performance of its services hereunder, the Subadviser is and shall be an independent contractor and unless otherwise expressly provided herein or otherwise authorized in writing, shall have no authority to act for or represent a Fund, the Trust or the Adviser in any way or otherwise be deemed an agent of a Fund, the Trust or the Adviser.
Expenses. During the term of this Agreement, the Subadviser will pay all expenses incurred by it in connection with its activities under this Agreement. The Subadviser shall, at its sole expense, employ or associate itself with such persons as it believes to be particularly fitted to assist it in the
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execution of its duties under this Agreement. The Subadviser shall not be responsible for the Trust’s, the Fund’s or Adviser’s expenses, which shall include, but not be limited to, the cost of securities, commodities and other investments (including brokerage commissions and other transaction charges, if any) purchased for the Fund and any losses incurred in connection therewith, expenses of holding or carrying Allocated Assets, including, without limitation, expenses of dividends on stock borrowed to cover a short sale and interest, fees or other charges incurred in connection with leverage and related borrowings with respect to the Allocated Assets, organizational and offering expenses (which include, but are not limited to, out-of-pocket expenses, but not overhead or employee costs of the Subadviser); expenses for legal, accounting and auditing services; taxes and governmental fees; dues and expenses incurred in connection with membership in investment company organizations; costs of printing and distributing shareholder reports, proxy materials, prospectuses, stock certificates and distribution of dividends; charges of the Funds’ custodians and sub-custodians, administrators and sub-administrators, registrars, transfer agents, dividend disbursing agents and dividend reinvestment plan agents; payment for portfolio pricing services to a pricing agent, if any; registration and filing fees of the SEC; expenses of registering or qualifying securities of the Fund for sale in the various states; freight and other charges in connection with the shipment of the Fund’s portfolio securities; fees and expenses of non-interested Trustees; salaries of shareholder relations personnel; costs of shareholders meetings; insurance; interest; brokerage costs; and litigation and other extraordinary or non-recurring expenses. The Trust or the Adviser, as the case may be, shall reimburse the Subadviser for any expenses of the Fund or the Adviser as may be reasonably incurred by the Subadviser on behalf of the Fund or the Adviser. The Subadviser shall keep and supply to the Trust and the Adviser reasonable records of all such expenses.
Code of Ethics. The Subadviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide the Trust and the Adviser with a copy of the code and evidence of its adoption. The Subadviser will provide to the Board at least annually a written report that describes any issues arising under the code of ethics since the last report to the Board, including, but not limited to, information about material violations of the code and sanctions imposed in response to the material violations; and which certifies that the Subadviser has adopted procedures reasonably necessary to prevent “access persons” (as that term is defined in Rule 17j-1) from violating the code.
Compensation. As compensation for the services performed by the Subadviser, the Adviser shall pay the Subadviser out of the advisory fee it receives with respect to the Fund, and only to the extent thereof, as promptly as possible after the last day of each month, a fee, computed daily and paid monthly at an annual rate set forth opposite the Fund’s name on Exhibit A hereto. If this Agreement is terminated as of any date not the last day of a month, such fee shall be paid as promptly as possible after such date of termination, shall be based on the average daily net assets of the Fund or, if less, the portion thereof comprising the Allocated Assets, in that period from the beginning of such month to such date of termination, and shall be that proportion of such average daily net assets as the number of business days in such period bears to the number of business days in such month. The average daily net assets of the Fund, or portion thereof comprising the Allocated Assets, shall in all cases be based only on business days and be computed as of the time of the regular close of business of the New York Stock Exchange, or such other time as stated in the Fund’s then-current Prospectus or as may be determined by the Board.
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Representations and Warranties of Subadviser. The Subadviser represents and warrants to the Adviser and the Trust as follows:
The Subadviser is registered as an investment adviser under the Advisers Act;
The Subadviser is a corporation duly organized and properly registered and operating under the laws of the Minnesota with the power to own and possess its assets and carry on its business as it is now being conducted and as proposed to be conducted hereunder;
The execution, delivery and performance by the Subadviser of this Agreement are within the Subadviser’s powers and have been duly authorized by all necessary actions of its directors or shareholders, and no action by, or in respect of, or filing with, any governmental body, agency or official is required on the part of the Subadviser for execution, delivery and performance by the Subadviser of this Agreement, and the execution, delivery and performance by the Subadviser of this Agreement do not contravene or constitute a violation of, or a material default under, (i) any provision of applicable law, rule or regulation, (ii) the Subadviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Subadviser; and
The Form ADV of the Subadviser provided to the Adviser and the Trust is a true and complete copy of the form, including that part or parts of the Form ADV filed with the SEC, that part or parts maintained in the records of the Subadviser, and/or that part or parts provided or offered to clients, in each case as required under the Advisers Act and rules thereunder, and the information contained therein is accurate and complete in all material respects and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
Representations and Warranties of Adviser. The Adviser represents and warrants to the Subadviser as follows:
The Adviser is registered as an investment adviser under the Advisers Act;
The Adviser is a limited liability company duly organized and validly existing under the laws of the State of Pennsylvania with the power to own and possess its assets and carry on its business as it is now being conducted and as proposed to be conducted hereunder;
The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized by all necessary action on the part of its directors or shareholders, and no action by, or in respect of, or filing with, any governmental body, agency or official is required on the part of the Adviser for the execution, delivery and performance by the Adviser of this Agreement, and the execution, delivery and performance by the Adviser of this Agreement do not contravene or constitute a violation of, or a material default under, (i) any provision of applicable law, rule or regulation, (ii) the Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Adviser;
The Form ADV of the Adviser provided to the Subadviser and the Trust is a true and complete copy of the form, including that part or parts of the Form ADV filed with the SEC, that part or parts maintained in the records of the Adviser, and/or that part or parts provided or offered to clients, in each case as required under the Advisers Act and rules thereunder, and the information
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contained therein is accurate and complete in all material respects and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
The Adviser acknowledges that it received a copy of the Subadviser’s Form ADV prior to the execution of this Agreement; and
The Adviser and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Adviser to delegate certain of its duties under the Advisory Agreement to other investment advisers, including, without limitation, the appointment of a subadviser with respect to assets of the Fund and the Adviser’s entering into and performing this Agreement.
Survival of Representations and Warranties; Duty to Update Information. All representations and warranties made by the Subadviser and the Adviser pursuant to the recitals above and Sections 9 and 10, respectively, shall survive for the duration of this Agreement and the parties hereto shall promptly notify each other in writing upon becoming aware that any of the foregoing representations and warranties are no longer true or accurate in all material effects.
Liability and Indemnification.
Liability. The Subadviser shall exercise its best judgment in rendering its services in accordance with the terms of this Agreement, but otherwise, in the absence of willful misfeasance, bad faith or gross negligence on the part of the Subadviser or a reckless disregard of its duties hereunder, the Subadviser, each of its affiliates and all respective partners, officers, directors and employees (“Affiliates”) and each person, if any, who within the meaning of the Securities Act controls the Subadviser (“Controlling Persons”), if any, shall not be subject to any expenses or liability to the Adviser, the Trust or a Fund or any of the Fund’s shareholders, in connection with the matters to which this Agreement relates, including without limitation for any losses that may be sustained in the purchase, holding or sale of Allocated Assets. The Adviser shall exercise its best judgment in rendering its obligations in accordance with the terms of this Agreement, but otherwise (except as set forth in Section 12(c) below), in the absence of willful misfeasance, bad faith or gross negligence on the part of the Adviser or a reckless disregard of its duties hereunder, the Adviser, any of its Affiliates and each of the Adviser’s Controlling Persons, if any, shall not be subject to any liability to the Subadviser, for any act or omission in the case of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of Allocated Assets. Notwithstanding the foregoing, nothing herein shall relieve the Adviser and the Subadviser from any of their obligations under applicable law, including, without limitation, the federal and state securities laws. 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 such rights which the Trust or the Fund may have under federal securities laws.
Indemnification. The Subadviser shall indemnify the Adviser, the Trust and the Fund, and their respective Affiliates and Controlling Persons for any liability and expenses, including without limitation reasonable attorneys’ fees and expenses, which the Adviser, the Trust and/or the Fund and their respective Affiliates and Controlling Persons may sustain as a result of the Subadviser’s willful misfeasance, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the federal and state securities
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laws. Unless otherwise obligated under applicable law, the Subadviser shall not be liable for indirect, punitive, special or consequential damages arising out of this Agreement.
The Adviser shall indemnify the Subadviser, its Affiliates and its Controlling Persons, for any liability and expenses, including without limitation reasonable attorneys’ fees and expenses, which may be sustained as a result of the Adviser’s willful misfeasance, bad faith, gross negligence, reckless disregard of its duties hereunder or violation of applicable law, including, without limitation, the federal and state securities laws.
The Subadviser shall not be liable to the Adviser for acts of the Subadviser that result from acts of the Adviser, including, but not limited to, a failure of the Adviser to provide accurate and current information with respect to any records maintained by the Adviser, which records are not also maintained by or otherwise available to the Subadviser upon reasonable request.
The Adviser shall not be liable to the Subadviser for acts of the Adviser which result from acts of the Subadviser, including, but not limited to, a failure of the Subadviser to provide accurate and current information with respect to any records maintained by the Subadviser, which records are not also maintained by or otherwise available to the Adviser upon reasonable request.
Duration and Termination.
(a) Duration. With respect to the Fund, the term of this Agreement shall begin as of the date and year upon which this Agreement is executed, and unless sooner terminated as hereinafter provided, this Agreement shall remain in effect for a period of two years. Thereafter, this Agreement shall continue in effect with respect to the Fund from year to year, subject to the termination provisions and all other terms and conditions hereof; PROVIDED, such continuance with respect to the Fund is approved at least annually by vote of the holders of a majority of the outstanding voting securities of the Fund or by the Trustees of the Trust; PROVIDED, that in either event such continuance is also approved annually by the vote, cast in person at a meeting called for the purpose of voting on such approval, of a majority of the Trustees of the Trust who are not parties to this Agreement or interested persons of either party hereto. The Subadviser shall furnish to the Trust or to the Adviser, promptly upon its request, such information as may reasonably be necessary to evaluate the terms of this Agreement or any extension, renewal or amendment thereof.
(b) Termination. Notwithstanding whatever may be provided herein to the contrary, this Agreement may be terminated at any time with respect to one or more Funds, without payment of any penalty:
(i) By vote of the Trust’s Board of Trustees, including the vote or written consent of a majority of the Trustees of the Trust who are not parties to this Agreement or interested persons of either party hereto, or by “vote of a majority of the outstanding voting securities” of the respective Fund (as defined in the 1940 Act), or by the Adviser, in each case, upon not more than 60 days’ written notice to the Subadviser;
(ii) By any party hereto upon written notice to the other party in the event of a breach of any provision of this Agreement by the other party if the breach is not cured within 15 days of notice of the breach; or
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(iii) By the Subadviser upon 60 days’ written notice to the Adviser and the Trust.
(c) This Agreement shall not be assigned (as such term is defined in the 1940 Act) and shall terminate automatically in the event of its assignment or upon the termination of the Advisory Agreement.
Duties of the Adviser. The Adviser shall continue to have responsibility for all services to be provided to the Fund pursuant to the Advisory Agreement and shall oversee and review the Subadviser’s performance of its duties under this Agreement. Nothing contained in this Agreement shall obligate the Adviser to provide any funding or other support for the purpose of directly or indirectly promoting investments in the Fund.
Reference to Adviser and Subadviser.
The Subadviser grants, subject to the conditions below, the Adviser non-exclusive rights to use, display and promote trademarks of the Subadviser in conjunction with any activity associated with the Funds. In addition, the Adviser may promote the identity of and services provided by the Subadviser to the Adviser, which references shall not differ in substance from those included in the Prospectus, SAI and this Agreement, in any advertising or promotional materials. The Adviser shall protect the goodwill and reputation of the Subadviser in connection with marketing and promotion of the Fund. The Adviser shall submit to the Subadviser for its review and approval all such public informational materials relating to the Funds that refer to any recognizable variant or any registered mark or logo or other proprietary designation of the Subadviser. Approval shall not be unreasonably withheld by the Subadviser and notice of approval or disapproval will be provided promptly and in any event within three (3) business days. Subsequent advertising or promotional materials having substantially the same form as previously approved by the Subadviser may be used by the Adviser without obtaining the Subadviser’s consent unless such consent is withdrawn in writing by the Subadviser.
Neither the Subadviser nor any Affiliate or agent of Subadviser shall make reference to or use the name of the Adviser or any of its Affiliates, or any of their clients, except references concerning the identity of and services provided by the Adviser to the Fund or by the Subadviser to the Fund or Adviser, which references shall not differ in substance from those included in the Prospectus, SAI and this Agreement, in any advertising or promotional materials without the prior approval of Adviser, which approval shall not be unreasonably withheld or delayed and notice of approval or disapproval will be provided promptly and in any event within three (3) business days. The Subadviser hereby agrees to make all reasonable efforts to cause any Affiliate of the Subadviser to satisfy the foregoing obligation.
Amendment. This Agreement may be amended by mutual consent of the parties, provided that the terms of any material amendment shall be approved by: (a) the Board or by a vote of a majority of the outstanding voting securities of the respective Fund (as required by the 1940 Act), and (b) the vote of a majority of those Trustees of the Trust who are not “interested persons” of any party to this Agreement cast in person at a meeting called for the purpose of voting on such approval, if such approval is required by applicable law.
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Confidentiality. Subject to the duties of the Adviser, the Trust and the Subadviser to comply with applicable law, including any demand of any regulatory or taxing authority having jurisdiction, the parties hereto shall treat as confidential and shall not disclose any and all information pertaining to the Funds and the actions of the Subadviser, the Adviser and the Funds in respect thereof; except to the extent:
Authorized. The Adviser or the Trust has authorized such disclosure;
Court or Regulatory Authority. Disclosure of such information is expressly required or requested by a court or other tribunal of competent jurisdiction or applicable federal or state regulatory authorities;
Publicly Known Without Breach. Such information becomes known to the general public without a breach of this Agreement or a similar confidential disclosure agreement regarding such information;
Already Known. Such information already was known by the party prior to the date hereof;
Received From Third Party. Such information was or is hereafter rightfully received by the party from a third party (expressly excluding the Funds’ custodian, prime broker and administrator) without restriction on its disclosure and without breach of this Agreement or of a similar confidential disclosure agreement regarding them; or
Independently Developed. The party independently developed such information.
In addition, the Subadviser and its officers, directors and employees are prohibited from receiving compensation or other consideration, for themselves or on behalf of a Fund, as a result of disclosing a Fund’s portfolio holdings. The Subadviser agrees, consistent with its Code of Ethics, it nor its officers, directors or employees may engage in personal securities transactions based on non-public information about a Fund’s portfolio holdings.
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under the terms of this Agreement shall be in writing, delivered, or mailed postpaid to the other parties, or transmitted by facsimile with acknowledgment of receipt, to the parties at the following addresses or facsimile numbers, which may from time to time be changed by the parties by notice to the other party:
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If to the Subadviser: Name: Curtis Teberg Title: Address: 5161 Miller Trunk Highway Duluth, Minnesota 55811
Phone: Fax: Email: |
If to the Adviser: Name: Brenden Gebben Title: Address: 101 Pennsylvania, Blvd., Pittsburgh, PA 15228
Phone: Fax: Email: |
Jurisdiction. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York without reference to choice of law principles thereof and in accordance with the 1940 Act. In the case of any conflict, the 1940 Act shall control.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, all of which shall together constitute one and the same instrument.
Certain Definitions. For the purposes of this Agreement and except as otherwise provided herein, “interested person,” “affiliated person,” and “assignment” shall have their respective meanings as set forth in the 1940 Act, subject, however, to such exemptions as may be granted by the SEC.
Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.
Severability. If any provision of this Agreement shall be held or made invalid by a court decision or applicable law, the remainder of the Agreement shall not be affected adversely and shall remain in full force and effect.
Entire Agreement. This Agreement, together with all exhibits, attachments and appendices, contains the entire understanding and agreement of the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above.
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ADVISER ABSOLUTE CAPITAL MANAGEMENT, LLC
By: _____________ Name: Title:
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SUBADVISER FIRST ASSOCIATED INVESTMENT ADVISORS, INC.
By: _____________ Name: Title:
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EXHIBIT A
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NAME OF FUND |
SUB-ADVISORY FEE CALCULATION |
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The Teberg Fund
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The parties agree that the Adviser shall pay the Subadviser an annual fee in an amount equal to 20% of the Adviser’s “Net Advisory Fee”. The Net Advisory Fee shall be calculated as follows: the “Advisory Fee” (defined below) minus (i) any fees waived by the Adviser; and (ii) certain other expenses as agreed to between the parties. The “Advisory Fee” shall be the amount payable by the Fund to the Adviser pursuant to the Advisory Agreement, and is currently an amount equal to 1.25% per annum of the Fund’s average net assets, payable monthly. |
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