INVESTMENT SERVICES AGREEMENT
Services Agreement (“Agreement”) is between Actium, LLC. d.b.a. BeManaged (“BeManaged”),
a Michigan corporation, and
(“You”). The Agreement is
effective as of the date you accept the Agreement below.
Statement of Facts
Herman Miller, Inc. (“Employer”)
appointed BeManaged to be a fiduciary adviser and investment manager with
regard to the Herman Miller, Inc. 401(k) Defined Contribution Plan (“Plan”). This means that You can hire BeManaged to
provide you with investment advice regarding your Account in the Plan (“your
Account”); or You can hire BeManaged to invest your Account on your behalf. You are not required to hire BeManaged.
Both parties agree as follows:
of Service. You hire BeManaged
to provide the following service:
BeAdvised -- we
provide investment advice, but you decide whether to implement the advice.
BeManaged -- we
invest your Account for you.
Services. BeManaged will also
manage, or provide investment advice, for any additional retirement accounts
(“Other Accounts”) for which You seeks advice, limited to individual accounts
owned by Client (i.e. IRA, 401(k), etc.). Other Accounts will be managed
following the same investment objectives as your funds within the Plan; as
outlined by the Investment Policy Statement BeManaged prepares for You.
BeManaged will operate in a fiduciary capacity when investing, or providing
investment advice, for your Other Accounts.
Fees for the management of Other
Accounts will follow the same schedule as Plan accounts. The fee schedule for your
accounts is described in Section 3 of this Agreement. Fees are cumulative,
meaning clients fees are calculated on the entirety of your retirement
portfolio, and not calculated on an individual account-by-account basis.
Management of any accounts of related persons to You (i.e. Spouse, Child) will
be treated as separate for purposes of fee calculations. All related accounts
will follow the same fee schedule and maximum as You.
3. Fees. The fees for BeManaged’s services are the same for
both the BeAdvised and BeManaged programs.
These fees will be withdrawn from your Account quarterly according to
the following fee schedule:
Quarterly fee of .15% of your Account’s market value, with
a maximum fee per quarter of $125.00, and a maximum fee per year of $500.00.
BeManaged will not receive compensation from any other
source for the services we provide to you, or any compensation based upon the
investment choices that are made.
Sec. 102(b)(1) of the Uniform Securities Act 265 of 1964, we may not be
compensated on the basis of the investment results.
4. Representations by BeManaged. We
represent that we are a registered investment adviser under the Investment
Advisers Act of 1940.
With respect to your Account,
we are a “fiduciary” under the Employee Retirement Income Security Act of 1974,
as amended. We are an “investment
manager” with regard to the BeAdvised program.
BeManaged complies with the requirements of ERISA §408(g).
5. Information Client Provides. You will
complete and submit to BeManaged an accurate and completed Investor Profile. This Investor Profile provides important
information regarding your risk tolerance.
BeManaged is entitled to
rely on the financial information and other information you provide to BeManaged.
You agree to inform BeManaged promptly in writing of any material change in
your circumstances which might affect the manner in which your assets should be
invested and to provide BeManaged with information that we reasonably request.
6. Investment Policy Statement. BeManaged will prepare an
Investment Policy Statement for you.
This Investment Policy Statement will provide guidelines for making
If the BeManaged
option is selected, we will invest and reinvest your Account on your behalf as
we deem appropriate, in our sole discretion, subject to the investment
guidelines in the Investment Policy Statement.
It is understood that BeManaged shall act in good faith and shall not be liable
for any loss incurred in connection with recommendations or investments made or
other action taken on behalf of the Account due to errors of judgment or by
reason of its advice, including action taken or omitted prior to a written
notice of termination. BeManaged shall
not be excluded from liability for losses occasioned by reason of its willful
misfeasance, bad faith, or negligence in the performance of its duties, or by
reason of its reckless disregard of its obligations and duties hereunder;
provided however, that nothing in this Agreement shall constitute a waiver or
limitation of any rights that You may have under applicable federal or state
law. BeManaged shall not be responsible
for any loss incurred by reason of any act or omission of You, a custodian, or
Acknowledgment. BeManaged does not guarantee the success of any
investment decisions or strategy that we may use. You understand that
investment decisions made for your Account are subject to various market,
currency, economic, political and business risks, and that those investment
decisions will not always be profitable. Except as may otherwise be provided by
law, we will not be liable to you for (i) any loss that you may suffer by
reason of any investment decision made or other action taken or omitted by BeManaged
if we acted with the care, skill, prudence, and diligence under the
circumstance that a prudent person acting in a fiduciary capacity would use;
(ii) any loss arising from our actions based upon your written or oral
instructions; or (iii) any act or failure to act by the custodian or trustee of
the Plan, or by any other third party.
9. Other Investment Accounts. You
understand and accept that we are an investment adviser for other clients. You also understand and accept that BeManaged
may give advice or take action in performing our duties to other clients or for
our own account that may differ from advice given to or action taken for You. BeManaged is not obligated to buy, sell, or
recommend for You any security or other investment that we may buy, sell, or
recommend for any other client, or for our own account. Subject to our fiduciary obligation, this
Agreement does not limit or restrict BeManaged in any way from buying, selling,
or trading in any securities or other investments for our own accounts.
10. Proxy Voting. BeManaged
does not vote proxies with respect to your investments.
11. Custody. If your funds are accessed via an individual username and password, BeManaged has been deemed to have custody of Client's Account pursuant to rule 206(4) of the Investment Advisers Act of 1940. In accordance with this rule, BeManaged must hold your funds with a "qualified custodian", as defined by Rule 206(4) and employ an independent third-party accountant to verify the assets held in your Account. Your Account funds will be held by Vanguard Retirement Services as custodian. Additionally, BeManaged has employed a third-party, independent public accountant, to conduct yearly surprise examinations to monitor your funds.
information and advice furnished by either party to the other shall be treated
as confidential and shall not be disclosed to third parties, except as agreed
in writing or as required by law.
13. Termination. BeManaged’s
authority under this Agreement remains in effect until the Agreement is
You may terminate our
services at any time by notifying BeManaged in writing or over the phone. You
will be entitled to a pro-rata refund of fees collected for services not yet provided.
The refund will be paid within 30 days after we are notified of the termination. The refund shall be made by forwarding the
refund to the Plan’s record keeper for redeposit into your Account.
BeManaged reserves the
right to terminate this Agreement for non-payment of fees or any other reason
upon written notice to You.
14. Severability. If any
provision in this Agreement is invalid or unenforceable, the remainder of the
Agreement will continue in effect.
15. No Assignment of Agreement. No assignment of this Agreement shall be made
by either party without the written consent of the other.
16. Choice of Law.
To the extent not pre-empted by federal
law, this Agreement is governed by the laws of the State of Michigan. Any
dispute arising out of or relating to this Agreement, or any breach thereof, shall
be settled by a court of competent jurisdiction in the State of Michigan. The cost of an action brought in court shall
be borne among the parties as determined by the court.
17. Entire Agreement. This Agreement constitutes the entire agreement between
You and BeManaged with respect to the investment of your Account. This Agreement can be amended only by a
written document signed by both parties.
Delivery. By clicking ‘Yes I accept’ below, You acknowledges; (a)
receipt of the information contained in U.S. Securities and Exchange Commission
Form ADV Part 2A and 2B from BeManaged; (b) that delivering any ADV Part 2A and
2B does not imply the U.S. Securities and Exchange Commission has made recommendation
of BeManaged; (c) that You have the
right to terminate this Agreement, without penalty, within five business days
from the date of entering into this Agreement; (d) receipt of BeManaged’s
provided to You by BeManaged are not exclusive to You and that similar services
may be provided to other clients of BeManaged with different investment
19. Acknowledgment. By clicking ‘Yes I Accept’ below, You acknowledge your understanding of the terms as set forth above for your relationship with BeManaged and have asked any questions you may have about this agreement before consenting.