SCHEDULE 14C
(Rule14c-101)
Information Required in Information Statement
Schedule 14C Information
Information Statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934
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☒ | Preliminary Information Statement | |
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☐ | Definitive Information Statement | |
Ohio National Fund, Inc.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Information Statement if other than the Registrant)
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Ohio National Fund, Inc.
| One Financial Way Cincinnati, Ohio 45242
Post Office Box 237 Cincinnati, Ohio 45201-0237
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April [ ], 2019
Dear Variable Contract or Policy Owner:
As a variable contract or policy owner with contract or policy values allocated to Ohio National Fund’s ON Bristol Growth Portfolio, you are receiving this Information Statement relating to recent changes approved by the Board of Directors of the Fund.
At anin-person meeting on January 25, 2019, the Board approved a change insub-adviser for the ON Bristol Growth Portfolio and a newsub-advisory agreement between Ohio National Investments, Inc. and BlackRock Investment Management, LLC, appointing BlackRock as the newsub-adviser to the ON Bristol Growth Portfolio. These changes became effective on February 1, 2019. Effective May 1, 2019, the ON Bristol Growth Portfolio will change its name to the “ON BlackRock Advantage Large Cap Growth Portfolio.”
This statement is being sent for your information only and you are not required to take any action.
As always, we thank you for your confidence and support.
Sincerely,
Michael J. DeWeirdt
President
INFORMATION STATEMENT
OHIO NATIONAL FUND, INC.
One Financial Way
Montgomery, Ohio 45242
ON Bristol Growth Portfolio
(the “Portfolio”)
This Information Statement provides information concerning the Portfolio. WE ARE NOT ASKING YOU FOR A PROXY, AND YOU ARE REQUESTED NOT TO SEND US A PROXY. This document is for informational purposes only and you are not required to take any action.
This Information Statement is being distributed in connection with the following changes approved by the Board of Directors (the “Board”) of Ohio National Fund, Inc. (the “Fund”) at anin-person meeting on January 25, 2019 (the “Meeting”): a change insub-adviser for the Portfolio and a newsub-advisory agreement between Ohio National Investments, Inc. (the “Adviser”) and BlackRock Investment Management, LLC (“BlackRock” or the“Sub-Adviser”), appointing BlackRock as the newsub-adviser for the Portfolio (the“Sub-Advisory Agreement”). These changes became effective on February 1, 2019. Effective May 1, 2019, the Portfolio will change its name to “ON BlackRock Advantage Large Cap Growth Portfolio.”
Pursuant to an Exemptive Order received by the Fund from the Securities and Exchange Commission (“SEC”), the Adviser may changesub-advisers or hire newsub-advisers for the Fund’s portfolios without obtaining shareholder approval if thesub-advisers are not affiliates of the Adviser (the “Exemptive Order”). On April 30, 2002, shareholders of the Fund generally authorized the Adviser to enter intosub-advisory agreements pursuant to the Exemptive Order. As a condition of such order, the Adviser must furnish shareholders of the affected portfolio(s) with certain information about new advisory andsub-advisory agreements. This Information Statement is intended to comply with that condition. The Information Statement is first being sent on or about April [ ], 2019 to shareholders of record of the Portfolio as of the close of business on February 1, 2019.
| I. | Background |
At the Meeting, the Board, including a majority of the Directors who are not “interested persons” of the Fund (the “Independent Directors”) within the meaning of that term under the Investment Company Act of 1940, as amended, approved the change insub-adviser for the Portfolio from Suffolk Capital Management, LLC (“Suffolk”) to BlackRock, effective February 1, 2019 (based on the Adviser’s recommendation because the priorsub-adviser for the Portfolio had notified the Adviser that it was ceasing operations). At the Meeting, the Board, including a majority of the Independent Directors, also approved theSub-Advisory Agreement, effective February 1, 2019. The appointment of BlackRock assub-adviser for the Portfolio was made in accordance with the Exemptive Order and does not require shareholder approval. The Adviser is not affiliated with BlackRock.
| II. | NewSub-Advisory Agreement |
The following is a brief summary of the material terms of theSub-Advisory Agreement, which is attached as Appendix A. You should read Appendix A for a complete understanding of theSub-Advisory Agreement. TheSub-Advisory Agreement was approved by the Board, including a majority of the Independent Directors, at the Meeting.
The material terms of theSub-Advisory Agreement are substantially similar to thesub-advisory agreement with the priorsub-adviser for the Portfolio, which was approved by the Board effective August 24, 2016 without submission to shareholders. It provides that theSub-Adviser will, among other things:
| (1) | provide investment advice and recommendations to the Portfolio with respect to the Portfolio’s investments, consistent with the Portfolio’s investment policies and restrictions; |
| (2) | arrange for the purchase and sale of the Portfolio’s securities; |
| (3) | provide, at its expense, all necessary investment and management facilities; and |
| (4) | provide periodic reports regarding the investment activity and composition of the Portfolio. |
In connection with the change insub-adviser for the Portfolio to BlackRock, the advisory fee structure of the Portfolio changed and the advisory agreement was amended to incorporate such changes. As compensation for its services to the Portfolio, the Adviser receives monthly fees from the Portfolio at the following annual rates (on the basis of the Portfolio’s average daily net assets during the month for which the fees are paid) under the advisory agreement as amended (the “New Advisory Fee”), as opposed to the annual rates under the advisory agreement prior to the amendment (the “Prior Advisory Fee”):
ON Bristol Growth Portfolio | ||
New Advisory Fee | Prior Advisory Fee | |
0.66% of first $500 million | 0.80% of first $100 million | |
0.64% over $500 million | 0.70% of next $400 million | |
| 0.65% over $500 million | ||
For the fiscal year ended December 31, 2018, the Adviser received $921,055 in advisory fees for management of the Portfolio, which was 0.78% of the Portfolio’s average daily net assets. If the New Advisory Fee had been in effect for the year ended December 31, 2018, the Adviser would have received $774,889 in advisory fees, or a net advisory fee of 0.66% of the Portfolio’s average daily net assets.
In connection with the change insub-adviser for the Portfolio to BlackRock, thesub-advisory fee structure of the Portfolio changed. Thesub-advisory fees are paid from the Adviser’s assets and do not affect the Portfolio’s total expenses. Thesub-advisory fees under the newSub-Advisory Agreement for the Portfolio are paid by the Adviser at the following effective annualized rates (on the basis of the Portfolio’s average daily net assets) (the “NewSub-Advisory Fee”), which are different from the annual rates under the priorsub-advisory agreement (the “PriorSub-Advisory Fee”), as shown in the table below:
| ON Bristol Growth Portfolio | ||
NewSub-Advisory Fee (BlackRock) | PriorSub-Advisory Fee (Suffolk) | |
0.20% of first $500 million | 0.45% of first $100 million | |
0.18% over $500 million | 0.40% of next $400 million | |
| 0.35% over $500 million | ||
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For the fiscal year ended December 31, 2018, the Adviser paid $518,790 insub-advisory fees, which was 0.44% of the Portfolio’s average daily net assets. If the NewSub-Advisory Fee had been in effect for the year ended December 31, 2018, the Adviser would have paid $234,815 insub-advisory fees, or a netsub-advisory fee of 0.20% of the Portfolio’s average daily net assets.
| III. | Information About theSub-Adviser |
BlackRock Investment Management, LLC
BlackRock is a Delaware limited liability company located at 1 University Square, Princeton, New Jersey 08540. BlackRock is a wholly owned indirect subsidiary of BlackRock, Inc. BlackRock, Inc. (together, with its subsidiaries) is a leading publicly traded investment management firm with $5.98 trillion of assets under management at December 31, 2018.
The following are the names and principal occupations of the principal executive officers and directors of BlackRock, Inc.
Name | Principal Occupation | |
| Laurence D. Fink | Chairman, Chief Executive Officer (Principal Executive Officer) and Director | |
| Gary S. Shedlin | Senior Managing Director and Chief Financial Officer (Principal Financial Officer | |
| Marc D. Comerchero | Managing Director and Chief Accounting Officer (Principal Accounting Officer) | |
| Mathis Cabiallavetta | Director | |
| Pamela Daley | Director | |
| William S. Demchak | Director | |
| Jessica P. Einhorn | Director | |
| Fabrizio Freda | Director | |
| Murry S. Gerber | Director | |
| James Grosfeld | Director | |
| Robert S. Kapito | Director | |
| Sir Deryck Maughan | Director | |
| Cheryl D. Mills | Director | |
| Gordon M. Nixon | Director | |
| Charles H. Robbins | Director | |
| Ivan G. Seidenberg | Director | |
| Marco Antonio Slim Domit | Director | |
| Susan L. Wagner | Director | |
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| IV. | Board Approval of theSub-Advisory Agreement |
At the Meeting, the Board, including a majority of the Independent Directors, approved theSub-Advisory Agreement.
A representative of the Adviser reported that the currentsub-adviser for the Portfolio had notified the Adviser that it was ceasing operations and would no longer be able to manage the Portfolio, and stated that the Adviser is recommending that BlackRock become thesub-adviser for the Portfolio. The Directors then met with representatives of BlackRock to discuss how it intends to manage the Portfolio. The Directors had the opportunity to ask questions that the representatives answered to the Directors’ satisfaction.
In considering the approval of theSub-Advisory Agreement, the Board requested and reviewed a significant amount of information relating to the Portfolio, including the following: (1) proposed advisory andsub-advisory fee information, including a comparison to existing fees for the Portfolio; (2) comparative advisory fee and expense ratio information for a peer group of funds, as well as advisory fee andsub-advisory fee peer comparison charts showing where the Portfolio’s proposed advisory fee andsub-advisory fee were located in the dispersion of its peer funds’ advisory fees andsub-advisory fees; (3) performance data for a BlackRock fund employing similar strategies to that of the Portfolio; (4) estimated Adviser profitability information; and (5) other information regarding the nature, extent and quality of services anticipated to be provided by BlackRock.
The Directors, including all of the Independent Directors, were assisted by experienced independent legal counsel throughout the contract review process. The Independent Directors discussed the proposedSub-Advisory Agreement in private session with such counsel at which no representatives of management, the Adviser or theSub-Adviser were present. The Directors, including all of the Independent Directors, relied upon the advice of independent legal counsel and their own business judgment in determining the material factors to be considered in evaluating theSub-Advisory Agreement and the weight to be given to each such factor. The conclusions reached by the Directors were based on a comprehensive evaluation of all of the information provided and were not the result of any one factor. Moreover, each Director may have afforded different weight to the various factors in reaching his or her conclusions with respect to theSub-Advisory Agreement.
Nature, Extent and Quality of Services
The Board evaluated the nature, extent and quality of the advisory services anticipated to be provided by theSub-Adviser. As part of its review, the Board reviewed information regarding theSub-Adviser’s operations, procedures and personnel. The Directors considered the capabilities and resources that theSub-Adviser is expected to dedicate to performing services on behalf of the Portfolio, as well as the quality of its administrative and other services. The Directors also considered the quality of the compliance programs of theSub-Adviser, and reviewed information on theSub-Adviser’s portfolio management and brokerage practices, including any soft dollar benefits received. It was the Directors’ conclusion that overall they were satisfied with the nature, extent and quality of services anticipated to be provided to the Portfolio by theSub-Adviser.
Investment Performance
With respect to the Portfolio, the Board considered the performance of the BlackRock Advantage Large Cap Growth Fund, which utilizes a strategy similar to that of the Portfolio, relative to
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that of its benchmark and Morningstar peer group. The Directors noted that the only performance information available was for the1-year period ended December 31, 2018, and that the BlackRock Fund had underperformed its bench mark and peer group. They noted, however, that the BlackRock Fund performance was in the 54th percentile of its peer group. Based on this performance, the Directors concluded that BlackRock has the ability to manage the Portfolio effectively going forward.
Fees and Expenses, Profitability, & Economies of Scale
The Board reviewed charts showing how the Portfolio’s proposed advisory andsub-advisory fees compared to the advisory andsub-advisory fees of the funds in its peer group. The charts showed the number of funds in the peer group within each defined range of advisory fees orsub-advisory fees, and the range that included the Portfolio. The Directors also noted that the Adviser, and not the Portfolio, is responsible for payingsub-advisory fees to theSub-Adviser. The Board also considered the reasonableness of the proposedsub-advisory fees to be paid by the Adviser to theSub-Adviser for the Portfolio. The Directors relied on the ability of the Adviser to negotiate the terms of theSub-Advisory Agreement, including thesub-advisory fee, atarm’s-length, noting that the Adviser is not affiliated with theSub-Adviser. With respect to the Portfolio, the Directors noted that the proposed advisory andsub-advisory fees were lower than the current fees. They also noted that the advisory fees payable by the Portfolio were well within the range of fees payable by the Portfolio’s peer group. The Directors remarked that, because thesub-advisory fees were paid by the Adviser and not by the Portfolio, the Adviser was incentivized to negotiate a favorable fee. Accordingly, the cost of services provided by theSub-Adviser and the profitability of theSub-Adviser in connection with its relationship with the Portfolio were not material factors in the Board’s deliberations. For similar reasons, the Board concluded that the potential realization of economies of scale by the Portfolio from thesub-advisory arrangement with theSub-Adviser should not be a material factor in its deliberations.
After consideration of the foregoing, the Board reached the following conclusions regarding the proposedSub-Advisory Agreement, in addition to the conclusions set forth above: (a) theSub-Adviser possesses the capability and resources to perform the duties required of it under theSub-Advisory Agreement; (b) the investment philosophy, strategies and techniques of the Adviser are appropriate for pursuing the Portfolio’s investment objective; (c) theSub-Adviser is likely to execute its investment philosophy, strategies and techniques consistently over time; and (d) theSub-Adviser maintains appropriate compliance programs. Based on all of the above-mentioned factors and their related conclusions, with no single factor or conclusion being determinative and with each Director not necessarily attributing the same weight to each factor, the Directors unanimously approved theSub-Advisory Agreement.
| V. | Other Information |
The Adviser and Administrator. The Adviser serves as investment adviser for the Fund and all of its portfolios. The Adviser is wholly-owned by The Ohio National Life Insurance Company (“ONLIC”), which serves as the principal administrator for the Fund. The Adviser and ONLIC are located at One Financial Way, Montgomery, Ohio 45242.
Annual and Semi-Annual Reports. The Fund has previously sent its most recent Annual Report and Semi-Annual Report to its shareholders. Copies of them are available, without charge, by writing to the Fund at One Financial Way, Montgomery, Ohio 45242 or by calling 877.665.6642.
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Outstanding Shares.The Portfolio has one class of shares, 100% of which are owned of record by ONLIC, Ohio National Life Assurance Corporation (“ONLAC”) (together with ONLIC called “Ohio National”), National Security Life and Annuity Company (“NSLAC”) and two other portfolios of the Fund (ON Moderate Growth Model Portfolio and ON Growth Model Portfolio). The address of Ohio National, NSLAC and the Fund is One Financial Way, Montgomery, Ohio 45242.
As of December 31, 2018, there were 4,248,013 shares of the Portfolio issued and outstanding. ONLIC owned 17.8% of these shares; ONLAC owned 0.1%; NSLAC owned 2.3%; ON Moderate Growth Model Portfolio owned 65.4%; and ON Growth Model Portfolio owned 14.4%. These shares were allocated to Ohio National and NSLAC’s separate accounts and the Fund as follows:
| Separate Account | Shares | Percent of Class | ||||||
| Ohio National Variable Account A | 667,993 | 15.7% | ||||||
| Ohio National Variable Account B | 1,298 | 0% | ||||||
| Ohio National Variable Account C | 88,273 | 2.1% | ||||||
| Ohio National Variable Account D | 1,130 | 0% | ||||||
| Ohio National Variable Account R | 3,579 | 0.1% | ||||||
| National Security Variable Account L | 0 | 0% | ||||||
| National Security Variable Account N | 96,567 | 2.3% | ||||||
| ON Moderate Growth Model Portfolio | 2,778,655 | 65.4% | ||||||
| ON Growth Model Portfolio | 610,518 | 14.4% | ||||||
None of the Directors of the Fund directly owns shares of the Fund. With the exception of Mr. Palmer, the Directors owned no variable contracts issued by Ohio National that would entitle them to give voting instructions with respect to any of the outstanding shares of the Fund. As of December 31, 2018, the Directors owned variable contracts that entitled them to give voting instructions with respect to less than 1% of the outstanding shares of the Portfolio.
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Appendix A
SUB-ADVISORY AGREEMENT
This Agreement is made as ofFebruary 1, 2019, by and between Ohio National Investments, Inc., an Ohio corporation (the “Adviser”), andBlackRock Investment Management, LLC, a Delaware limited liability company (the“Sub-Adviser”).
WHEREAS,Ohio National Fund, Inc. (the “Fund”), is a Maryland corporation that is registered under the Investment Company Act of 1940, as amended, (together with the regulations promulgated pursuant thereto, the “1940 Act”); and
WHEREAS, the Adviser is a registered investment adviser under the Investment Advisers Act of 1940, as amended, (together with the regulations promulgated pursuant thereto, the “Advisers Act”); and
WHEREAS, the Adviser has been appointed as investment adviser to the Fund in accordance with the 1940 Act and the Advisers Act; and
WHEREAS, theSub-Adviser is registered as an investment adviser under the Advisers Act and engages in the business of providing investment advisory services; and
WHEREAS, the Fund has authorized the Adviser to appoint theSub-Adviser, subject to the requirements of the 1940 Act and the Advisers Act, as thesub-adviser with respect to the series of the Fund designated as the ON Bristol Growth (the “Portfolio”) on the terms and conditions set forth below;
NOW, THEREFORE, IT IS HEREBY AGREED as follows:
SECTION 1.Investment Advisory Services
| (a) | The Adviser hereby retains theSub-Adviser, and theSub-Adviser hereby accepts engagement by the Adviser, to supervise and manage on a fully-discretionary basis the cash, securities and other assets of the Portfolio that the Adviser shall from time to time place under the supervision of theSub-Adviser (such cash, securities and other assets initially and as same shall thereafter be increased or decreased by the investment performance thereof and by additions thereto and withdrawals therefrom by the Adviser shall hereinafter be referred to as the “Portfolio”). |
| (b) | All activities by theSub-Adviser on behalf of the Adviser and the Portfolio shall be in accordance with the investment objectives, policies and restrictions set forth in the 1940 Act and in the Fund’s prospectus and statement of additional information, as amended from time to time (together, the “Prospectus”) and as interpreted from time to time by the Board of Directors of the Fund and by the Adviser (to the extent any such interpretations have been communicated to theSub-Adviser in writing by the Fund or the Adviser). All activities of theSub-Adviser on behalf of the Adviser and the Portfolio shall also be subject to the supervision and direction of the Adviser. |
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| (c) | In carrying out its obligations to manage the investments and reinvestments of the Portfolio, theSub-Adviser shall: |
| 1. | obtain and evaluate pertinent economic, statistical, financial and other information affecting sectors and industries and the individual companies included in the Portfolio or under consideration for inclusion therein; |
| 2. | formulate and implement a continuous investment program for the Portfolio consistent with the investment objectives and related investment policies and restrictions for the Portfolio as set forth in the Prospectus; |
| 3. | take such steps as are necessary to implement the aforementioned investment program by placing orders for the purchase and sale of securities; and |
| 4. | coordinate with the Adviser to assure compliance with the Prospectus, qualification of the Portfolio as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”) and compliance with the diversification requirements of Section 817(h) of the Code. For the avoidance of doubt, the Adviser agrees and acknowledges that theSub-Adviser is not the tax agent for the Fund or the Portfolio. TheSub-Adviser shall monitor the Portfolio pursuant to this subsection (4) based upon the books and records with respect to the Portfolio as provided by the Adviser or the Fund’s administrator, Custodian or other service providers. At or before the end of each calendar quarter, theSub-Adviser shall notify the Adviser if theSub-Adviser believes it has a reasonable basis for believing that the Portfolio has ceased to comply or might reasonably be expected to fail to comply with Subchapter M or Section 817(h) of the Code. Without limiting the preceding obligations of theSub-Adviser, if the Adviser notifies theSub-Adviser that the Adviser has determined, in its sole discretion, that the Portfolio has ceased to comply or might reasonably be expected to fail to comply with Subchapter M and Section 817(h) of the Code, theSub-Adviser shall immediately take action to bring the Portfolio back into compliance within the applicable statutory cure period; provided, however that such action shall not, in and of itself, constitute an admission by theSub-Adviser that the Portfolio is not in compliance with Subchapter M or Section 817(h) of the Code. |
| (d) | TheSub-Adviser is authorized to enter into trading agreements and execute any documents (e.g., ISDAs, control agreements, clearing agreements and other trading arrangements on behalf of the Fund and/or Portfolio, as applicable) and take any other actions required to make investments pursuant to the Prospectus, which may include any market and/or industry standard documentation. |
| (e) | In connection with the purchase and sale of securities of the Portfolio, theSub-Adviser shall arrange for the transmission to the Adviser and the Fund’s custodian (the “Custodian”) on a daily basis such confirmation, trade tickets and other documents as may be necessary to enable them to perform their administrative responsibilities with respect to the Portfolio. In addition, theSub-Adviser shall have authority to instruct the Custodian to (i) pay cash for securities and other property delivered to the Custodian for the Portfolio’s assets, (ii) deliver or accept delivery of, upon receipt of payment or payment upon receipt of, securities, commodities or |
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other property underlying any futures or options contracts, and other property purchased or sold in the Portfolio and (iii) deposit margin or collateral which shall include the transfer of money, securities or other property to the extent necessary to meeting the obligations of the Portfolio with respect to any investments made pursuant to the Prospectus. |
| (f) | In the event the Advisor or Custodian engages in securities lending activities with respect to the Portfolio, theSub-Advisor will not be a party to or may not necessarily be aware of such lending activities. It is understood that theSub-Advisor shall not be responsible for settlement delay or failure, corporate action failure or any related costs or loss due to such activities. |
| (g) | Consistent with the Prospectus and subject to the supervision of Adviser, theSub-Adviser shall have the sole and exclusive responsibility to select members of securities exchanges, brokers, dealers and futures commission merchants for the execution of transactions of the Portfolio and, when applicable, shall negotiate commissions in connection therewith. In selecting brokers or dealers to execute transactions on behalf of the Portfolio, it shall be the policy of theSub-Adviser to seek to obtain best execution and theSub-Adviser agrees to act in conformance with its best execution policies and procedures. In assessing best execution, theSub-Adviser will consider factors it deems relevant, which may include, without limitation, the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer and the reasonableness of the commission, if any, for the specific transaction and on a continuing basis. In selecting brokers or dealers to execute a particular transaction, and in evaluating best execution, theSub-Adviser is authorized to consider the brokerage and research services (within the meaning of Section 28(e) of the Securities Exchange Act of 1934, as amended) provided to the Portfolio and/or other accounts (as defined herein) over which theSub-Adviser exercises investment discretion. |
| (h) | Subject to theSub-Adviser’s obligations to seek to obtain best execution in selecting brokers or dealers to execute transactions on behalf of the Portfolio as set forth above, theSub-Adviser may to the extent permitted by applicable laws and regulations, but shall be under no obligation to, aggregate orders. In such event, allocation of the orders, as well as the expenses incurred in the transaction, will be made by theSub-Adviser in a fair and equitable manner and consistent with theSub-Adviser’s fiduciary obligations to the Portfolio and to its other clients and in a manner consistent with theSub-Adviser’s allocation policies and procedures. The Adviser recognizes that, in some cases, theSub-Adviser’s allocation procedure may limit the size of the position that may be acquired or sold for the Portfolio. |
| (i) | The Adviser acknowledges that (i) theSub-Adviser is not the pricing agent for the Fund or the Portfolio, (b) theSub-Adviser’s valuation policies may differ from the valuation policies of the Fund’s pricing agent and valuation committee and (c) therefore, the valuations made by the Portfolio may differ from the valuations made by or on behalf of theSub-Adviser for other accounts that theSub-Adviser manages. The Adviser further acknowledges that any certain information, data or analyses may be proprietary to theSub-Adviser or otherwise consist of nonpublic information, agrees that nothing in this Agreement shall requireSub-Adviser to provide any information, data or analysis in contravention of applicable legal or contractual requirements, and, with respect to any information that is provided, agrees to use any such information only for the purpose of pricing Portfolio assets and to maintain their confidentiality. |
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| (j) | In connection with the placement of orders for the execution of the Portfolio’s securities transactions, theSub-Adviser shall create and maintain all necessary records of the Portfolio as are required of an investment adviser of a registered investment company including, but not limited to, records required by the 1940 Act and the Advisers Act. All such records pertaining to the Portfolio shall be the property of the Fund and shall be available for inspection and use by the Securities and Exchange Commission (“SEC”), any other regulatory authority having jurisdiction, the Fund, the Adviser or any person retained by the Fund or the Adviser; provided that theSub-Adviser may retain copies of any such records. Where applicable, such records shall be maintained by theSub-Adviser for the period and in the place required by Rule31a-2 under the 1940 Act. Notwithstanding the foregoing,Sub-Adviser has no responsibility for the maintenance of the records of the Fund, except for those related to theSub-Adviser’s management of the Portfolio. |
| (k) | As reasonably requested by the Adviser, theSub-Adviser shall render such reports to the Adviser and/or to the Board of Directors of the Fund concerning the investment activity and composition of the Portfolio as a whole, in such form and at such intervals as the Adviser or the Board may from time to time reasonably require. |
| (l) | TheSub-Adviser shall, for all purposes hereof, be an independent contractor and, except as expressly provided hereunder, shall have no authority to act for or represent the Fund or the Adviser in any way or otherwise be deemed an agent of the Fund or the Adviser. |
SECTION 2.Expenses
| (a) | TheSub-Adviser shall assume and pay all of its own costs and expenses, including those for furnishing such office space, office equipment, office personnel and office services as theSub-Adviser may require in the performance of its duties under this Agreement. |
| (b) | The Fund shall bear all expenses of the Portfolio’s organization and registration, and the Fund and Adviser shall bear all of their respective expenses of their operations and businesses not expressly assumed or agreed to be paid by theSub-Adviser under this Agreement. In particular, but without limiting the generality of the foregoing, the Fund shall pay any fees due to the Adviser, all interest, taxes, governmental charges or duties, fees, brokerage and commissions of every kind arising hereunder or in connection herewith, expenses of transactions with shareholders of the Portfolio, expenses of offering interests in the Portfolio for sale, insurance, association membership dues, all charges of custodians (including fees as custodian and for keeping books, performing portfolio valuations and rendering other services to the Fund), independent auditors and legal counsel, fees paid to the Fund’s Board of Directors, SEC or other regulatory fees and state Blue Sky qualification fees, expenses of preparing, printing and distributing all prospectuses, proxy material, reports and notices to shareholders of the Fund, any extraordinary expenses and all other costs incident to the Portfolio’s existence. |
SECTION 3.Use of Services of Others
| (a) | Sub-Adviser may, as permitted by rule, regulation or position of the staff of the SEC, utilize the personnel of its affiliates including foreign affiliates in providing services under this Agreement, provided thatSub-Adviser remains solely responsible for the provision of services |
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under this Agreement and provided further that such utilization shall not include any activity that could be construed as the provision of investment advice or that could be interpreted as causing the affiliate to be serving or acting as an investment adviser to the Portfolio. For the avoidance of doubt, delegation of services to affiliates under this Section 3(a) shall not relieve theSub-Adviser of any obligations under this Agreement, including without limitation the indemnification obligations related to such services as provided under Section 5 hereunder. |
| (b) | TheSub-Adviser may (at its expense) employ, retain or otherwise avail itself of the services or facilities of other persons or organizations for the purpose of providing theSub-Adviser with such statistical or factual information, such advice regarding economic factors and trends or such other information, advice or assistance as theSub-Adviser may deem necessary, appropriate or convenient for the discharge of theSub-Adviser’s obligations hereunder or otherwise helpful to the Fund and the Portfolio. |
SECTION 4.Sub-Advisory Fees
The Adviser, or the Fund on behalf of the Adviser, will pay theSub-Adviser the compensation specified in Appendix A. TheSub-Advisory Fees shall be payable solely by the Adviser, and the Fund shall not be liable to theSub-Adviser for any unpaidSub-Advisory Fees.
SECTION 5.Limitation of Liability ofSub-Adviser; Indemnification
| (a) | TheSub-Adviser shall exercise its best judgment in rendering its services described in this Agreement. Except as may otherwise be required by the 1940 Act or the rules thereunder or other applicable law, or as otherwise provided in this Section 5, theSub-Adviser shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Fund or the Adviser in connection with the matters to which this Agreement relates, except a loss resulting fromSub-Adviser’s willful misfeasance, bad faith or gross negligence on its part in the performance of its duties, or reckless disregard by theSub-Adviser of its obligations and duties, hereunder. |
| (b) | The Adviser shall indemnify theSub-Adviser and theSub-Adviser’s affiliates, agents, controlling persons, directors, partners, officers, employees and shareholders (collectively, the“Sub-Adviser Indemnified Parties”) against, and hold suchSub-Adviser Indemnified Parties harmless from, any cost, expense, claim, loss, liability, judgment, fine, settlement or damage (including reasonable legal and other expenses) (collectively, “Losses”) arising out of any claim, demands, actions, suits or proceedings (civil, administrative or investigative) asserted or threatened to be asserted by any third party (collectively, “Proceedings”) in so far as such Loss (or actions with respect thereto) arises out of or is based upon (i) any material misstatement or omissions of a material fact in the Fund’s Prospectus, registration statement, proxy materials or reports filed with the SEC, unless and to the extent such material misstatement or omission was made in reliance upon, and is consistent with, information furnished in writing to the Adviser by anySub-Adviser Indemnified Party for use therein or (ii) the Adviser’s willful misfeasance, bad faith or gross negligence in the performance of its duties hereunder or the Adviser’s reckless disregard of its obligations and duties under this Agreement. |
| (c) | TheSub-Adviser shall indemnify the Fund, the Adviser and each of their respective affiliates, agents, controlling persons, directors, members of the Board, partners, officers, employees and shareholders (the “Adviser Indemnified Parties”) against, and hold them harmless from, any |
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and all Losses arising out of any Proceedings in so far as such Loss (or actions with respect thereto) arises out of or is based upon (i) any material misstatement or omission of a material fact in information regarding theSub-Adviser furnished in writing to the Adviser by theSub-Adviser for use in the Fund’s Prospectus, registration statement, proxy materials or reports filed with the SEC or (ii) theSub-Adviser’s willful misfeasance, bad faith or gross negligence in the performance of its duties hereunder or its reckless disregard of its duties under this Agreement, and nothing herein shall protect theSub-Adviser against any such liability to the shareholders of the Fund or to the Adviser. Except as provided in the previous sentence, theSub-Adviser shall not be liable to the Fund or to any shareholder of the Fund or to the Adviser for any claim or loss arising out of any investment or other act or omission in the performance of theSub-Adviser’s duties under this Agreement, or for any loss or damage resulting from the imposition by any government of exchange control restrictions which might affect the liquidity of the Fund’s assets maintained with custodians or securities depositories in foreign countries, or from any political acts of any foreign governments to which such assets might be exposed, or for any tax of any kind (other than taxes on theSub-Adviser’s income), including without limitation any statutory, governmental, state, provincial, regional, local or municipal imposition, duty, contribution or levy imposed by any government or governmental agency upon or with respect to such assets or income earned with respect thereto (collectively “Taxation”). Notwithstanding the foregoing sentence and the provisions of Section 5(d), theSub-Adviser shall be liable for taxes or tax penalties incurred by the Portfolio, or by any legal or beneficial owner of the Portfolio’s shares, for any failure of the Portfolio to qualify as a regulated investment company under Subchapter M, or to meet the diversification requirements of Section 817(h) of the Code to the extent resulting from a material breach of theSub-Adviser’s duties under this Agreement or any breach of its obligations under Section 1(c)(4). For clarity, theSub-Adviser shall not be liable for other taxes or penalties incurred by the Portfolio or its shareholders that are not attributable to theSub-Adviser’s management of the Portfolio. |
| (d) | In the event theSub-Adviser is assessed any Taxation in respect of the assets, income or activities of the Portfolio, the Adviser and the Fund jointly and severally will indemnify theSub-Adviser for all such amounts wherever imposed, together with all penalties, charges, costs and interest relating thereto and all expenditures, including reasonable attorney’s fees, incurred by theSub-Adviser in connection with the defense or settlement of any such assessment. TheSub-Adviser shall undertake and control the defense or settlement of any such assessment, including the selection of counsel or other professional advisers, provided that the selection of such counsel and advisers and the settlement of any assessment shall be subject to the approval of the Adviser and the Fund, which approvals shall not be unreasonably withheld. The Adviser and the Fund shall have the right to retain separate counsel and assume the defense or settlement on behalf of the Adviser and the Fund, as the case may be, of any such assessment if representation of the Adviser and the Fund by counsel selected by theSub-Adviser would be inappropriate due to actual or potential conflicts of interest. |
SECTION 6.Services to Other Clients and the Fund
| (a) | Subject to compliance with the 1940 Act, nothing contained in this Agreement shall be deemed to prohibit theSub-Adviser or any of its affiliated persons from acting, and being separately compensated for acting, in one or more capacities on behalf of the Fund. The Adviser and the Fund understand that theSub-Adviser may act as investment manager or in other capacities, |
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whether similar or dissimilar in nature to the services hereunder, on behalf of other customers, which may include one or more private funds, entities registered under the 1940 Act and fiduciary or other managed accounts (collectively, “accounts”). It is understood and agreed that the directors, officers, and employees of theSub-Adviser are not prohibited from engaging in any other business activity or from rendering services to any other person, or from serving as partners, officers, directors, trustees, or employees of any other firm or corporation, including other entities registered under the 1940 Act. In addition, it is understood that the persons employed by theSub-Adviser to assist in the performance of theSub-Adviser’s duties hereunder will not devote their full time to such services and nothing contained herein shall be deemed to limit or restrict theSub-Adviser’s right or the right of any of theSub-Adviser’s affiliates to engage in and devote time and attention to other businesses or to render services of whatever kind or nature. |
| (b) | While information, recommendations and actions which theSub-Adviser supplies to and does on behalf of the Portfolio shall in theSub-Adviser’s judgment be appropriate under the circumstances in light of the investment objectives and policies of the Fund, as set forth in the Prospectus delivered to theSub-Adviser from time to time, it is understood and agreed that they may be different from the information, recommendations and actions theSub-Adviser or its affiliated persons supply to or do on behalf of theSub-Adviser’s other accounts; provided that any such information, recommendations and actions supplied to and done on behalf of the Portfolio and to any other client is supplied in an impartial and fair manner and consistent with theSub-Adviser’s fiduciary duties and obligations to the Portfolio. TheSub-Adviser agrees to use the same skill and care in providing services to the Portfolio as it uses in providing services to other similar accounts for which it has investment responsibility. As used herein, the term “affiliated person” shall have the meaning assigned to it in the 1940 Act. |
SECTION 7.Reports
| (a) | The Adviser shall timely furnish to theSub-Adviser the Prospectus, proxy statements, reports and other information relating to the business and affairs of the Fund as theSub-Adviser may reasonably require, and reasonably request, in order to discharge theSub-Adviser’s duties under this Agreement. The Adviser will also promptly notify theSub-Adviser, as permitted by applicable law: (1) in the event that the SEC, CFTC, NFA or other US ornon-US governmental or self-regulatory authority has (i) censured the Adviser or the Fund; (ii) placed limitations upon either of their activities, functions, or operations that are reasonably expected to have a material adverse effect on the Adviser’s ability to perform its obligations under this Agreement or have a material adverse effect on the Portfolio; (iii) suspended or revoked the Adviser’s registration as an investment adviser; or (iv) has commenced proceedings or an investigation that are reasonably expected to have a material adverse effect on the Adviser’s ability to perform its obligations under this Agreement; or (2) upon having a reasonable basis for believing that the Portfolio has ceased to qualify or might reasonably be expected to fail to qualify as a regulated investment company under Subchapter M of the Code. |
| (b) | TheSub-Adviser will promptly notify the Adviser, as permitted by applicable law in the event that the SEC, CFTC, NFA or other US ornon-US governmental or self-regulatory authority has (i) censured theSub-Adviser; (ii) placed limitations upon its activities, functions, or operations that are reasonably expected to have a material adverse effect on theSub-Adviser’s ability to perform its obligations under this Agreement or have a material adverse effect on the |
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Portfolio; (iii) suspended or revoked theSub-Adviser’s registration as an investment adviser; or (iv) has commenced proceedings or an investigation that are reasonably expected to have a material adverse effect on theSub-Adviser’s ability to perform its obligations under this Agreement. |
| (c) | TheSub-Adviser will promptly notify the Adviser of the occurrence of any of the following events: (1) any change in the Portfolio’s portfolio managers; (2) theSub-Adviser fails to be registered as an investment adviser under the Advisers Act or under the laws of any jurisdiction in which theSub-Adviser is required to be registered as an investment adviser in order to perform its obligations under this Agreement, except where such registration is not reasonably expected to have a material adverse effect on theSub-Adviser’s ability to perform its obligations under this Agreement; (3) theSub-Adviser is the subject of any action, suit, proceeding, inquiry or investigation at law or in equity, before or by any court, public board or body, involving the affairs of the Portfolio; or (4) any proposed change in control of theSub-Adviser. |
SECTION 8.Proxies
The Adviser shall vote proxies for securities held by the Fund in accordance with the Adviser’s policies for proxy voting. The Adviser agrees it shall provide theSub-Adviser a copy of the Adviser’s policies upon written request.
SECTION 9.Confidentiality
The parties to this Agreement agree that each shall treat as confidential all information provided by a party to the others regarding such party’s business and operations, including, without limitation, the investment activities or holdings of the Portfolio. All confidential information provided by a party hereto shall be used by any other parties hereto solely for the purposes of rendering services pursuant to this Agreement and, except as may be required in carrying out the terms of this Agreement, shall not be disclosed to any third party without the prior consent of such providing party. For the avoidance of doubt, the parties may disclose such information to a limited number of employees, attorneys, accountants, affiliates, third party counterparties, Fund service providers and other advisers (collectively, “Representatives”) for which such disclosure is necessary for the performance of its responsibilities and duties hereunder. The foregoing shall not be applicable to any information (i) that is publicly available when provided or which thereafter becomes publicly available other than in contravention of this Section 9, (ii) known to such receiving party prior to disclosure to such party by the other party or its representatives and not otherwise subject to a separate confidentiality obligation, (iii) rightfully acquired by the receiving party from third parties whom the party reasonably believes are not under an obligation of confidentiality to the other party to this Agreement, (iv) independently developed by the receiving party without reference or reliance upon the confidential information, or (v) that is required to be disclosed by any regulatory authority in the lawful and appropriate exercise of its jurisdiction over a party, any auditor of the parties hereto, by judicial or administrative process or otherwise by applicable law or regulation.
SECTION 10.Representations and Warranties ofSub-Adviser
TheSub-Adviser represents and warrants to the Adviser and the Fund as follows:
| (a) | TheSub-Adviser is registered as an investment adviser under the Advisers Act and will promptly notify the Adviser of the occurrence of any event that would disqualify the |
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Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise; |
| (b) | TheSub-Adviser is a limited liability company duly organized and validly existing under the laws of the State of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted; |
| (c) | The execution, delivery and performance by theSub-Adviser of this Agreement are within theSub-Adviser’s powers and have been duly authorized, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of theSub-Adviser for the execution, delivery and performance by theSub-Adviser of this Agreement, and the execution, delivery and performance by theSub-Adviser of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) theSub-Adviser’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon theSub-Adviser; |
| (d) | This Agreement is a valid and binding agreement of theSub-Adviser; |
| (e) | A true and complete copy of the Form ADV of theSub-Adviser, as amended to the date hereof and filed with the SEC, 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; |
| (f) | TheSub-Adviser agrees to observe and comply with Rule17j-1 under the 1940 Act and theSub-Adviser’s Code of Ethics, as may be amended from time to time. TheSub-Adviser shall not be subject to any other code of ethics, including that of the Adviser, unless specifically adopted by theSub-Adviser. |
SECTION 11.Representations and Warranties of Adviser
The Adviser represents and warrants to theSub-Adviser as follows:
| (a) | The Adviser is registered as an investment adviser under the Advisers Act and will promptly notify theSub-Adviser of the occurrence of any event that would disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise; |
| (b) | The Fund is registered as an investment company under the 1940 Act and shall maintain such registration in good standing throughout the term of this Agreement. |
| (c) | The Adviser is a corporation duly organized and validly existing under the laws of the State of Ohio with the power to own and possess its assets and carry on its business as it is now being conducted; |
| (d) | The execution, delivery and performance by the Adviser of this Agreement are within the Adviser’s powers and have been duly authorized, 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, |
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delivery and performance by the Adviser of this Agreement do not contravene or constitute a 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; |
| (e) | This Agreement is a valid and binding agreement of the Adviser; |
| (f) | The Adviser agrees to observe and comply with Rule17j-1 under the 1940 Act and the Adviser’s Code of Ethics as may be amended from time to time. |
SECTION 12.Term of Agreement
Provided that this Agreement shall have first been approved by the Board of Directors of the Fund, including a majority of the members thereof who are not interested persons (as defined in the 1940 Act) of either party, by a vote cast in person at a meeting called for the purpose of voting such approval, then this Agreement shall be effective on the date hereof for an initial term of two (2) years. This Agreement shall thereafter continue in effect from year to year, subject to approval annually by the Board of Directors of the Fund or by vote of a majority of the voting securities of the Portfolio and also, in either event, by the vote, cast in person at a meeting called for the purpose of voting on such approval, of a majority of the Directors of the Fund who are not parties to this Agreement or interested persons (as defined in the 1940 Act) of any such person.
SECTION 13.Termination of Agreement; Assignment
| (a) | This Agreement may be terminated by the Adviser or theSub-Adviser at any time (including during the initial two year term) without the payment of any penalty, upon 90 days’ prior notice in writing to the other party and to the Fund, or upon 60 days’ written notice by the Fund to the two parties; provided, that in the case of termination by the Fund such action shall have been authorized by resolution of a majority of the Board of Directors of the Fund or by vote of a majority of the voting securities of the Portfolio. In addition, this Agreement shall terminate upon the later of (1) the termination of the Adviser’s agreement to provide investment advisory services to the Portfolio or (2) notice to theSub-Adviser that the Adviser’s agreement to provide investment advisory services to the Portfolio has terminated. |
| (b) | This Agreement shall automatically terminate in the event of its assignment (as defined in the 1940 Act). |
| (c) | Termination of this Agreement for any reason shall not affect rights of the parties that have accrued prior thereto. |
SECTION 14.Notices
| (d) | Any notice given hereunder shall be in writing and may be served by being sent by telex, facsimile or other electronic transmission or sent by registered mail or by courier to the address set forth below for the party for which it is intended. A notice served by mail shall be deemed to have been served seven days after mailing and in the case of telex, facsimile or other electronic transmission twelve hours after dispatch thereof. Addresses for notice may be changed by written notice to the other party. |
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If to the Adviser:
Attn: Legal Department
Ohio National Investments, Inc.
P.O. Box 237
Cincinnati, Ohio 45201
Fax No. (513)794-4645
With a copy to:
President
Ohio National Investments, Inc.
P.O. Box 237
Cincinnati, Ohio 45201
If to theSub-Adviser:
BlackRock Investment Management
1 University Square
Princeton, NJ 08536
Attn: Kerrianne Berneck
SECTION 15.Governing Law
This Agreement shall be governed by and subject to the requirements of the laws of the State of New York without reference to the choice of law provisions thereof.
SECTION 16.Applicable Provisions of Law
The Agreement shall be subject to all applicable provisions of law, including, without limitation, the applicable provisions of the 1940 Act, and to the extent that any provisions herein contained conflict with any such applicable provisions of law, the latter shall control.
SECTION 17.Counterparts
This Agreement may be entered into in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
SECTION 18.Amendment
This Agreement may be amended only in accordance with applicable law, and only by a written instrument signed by all the parties to this Agreement.
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SECTION 19.Survival
Sections 5, 9 and this Section 19 shall survive termination of this Agreement
SECTION 20.General
This Agreement constitutes the entire understanding of the parties with respect to its subject matter, shall supersede all prior understandings agreements, contracts or other documents, and shall continue in full force and effect until terminated. If any provision of this Agreement is held to be invalid or unenforceable to any extent, the remainder of this Agreement shall be enforced to the greatest extent permitted by law.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of the day and year first above written.
Ohio National Investments, Inc.
By:/s/ Gary Rodmaker
Gary Rodmaker, President
BlackRock Investment Management, LLC
By:/s/ Michael Ferraro ��
Michael Ferraro, Managing Director
Accepted and Agreed:
Ohio National Fund, Inc.
By:/s/ Michael DeWeirdt
Michael J. DeWeirdt, President
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Appendix A
Sub-Advisory Fees
TheSub-Adviser shall be entitled toSub-Advisory Fees at the following annual rates:
0.20% of first $500 million of the average daily net assets of the Portfolio
0.18% over $500 million of the average daily net assets of the Portfolio
TheSub-Advisory Fees shall be accrued for each calendar day and the sum of the dailySub-Advisory Fees accruals shall be paid monthly to theSub-Adviser. The daily fee accruals will be computed on the basis of the valuations of the total net assets of the Portfolio as of the close of business each day.
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