INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT made as of the ____ day of May,
2000, by and between ADVISORS SERIES TRUST, a Delaware business trust
(hereinafter called the "Trust"), on behalf of its series, the Van Deventer &
Xxxx American Value Fund (the "Fund") and VAN DEVENTER & XXXX, a California
general partnership (hereinafter called the "Adviser").
WITNESSETH:
WHEREAS, the Trust is an open-end management investment company,
registered as such under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and is engaged in the business of
supplying investment advice, investment management and administrative services,
as an independent contractor; and
WHEREAS, the Trust desires to retain the Adviser to render advice and
services to the Fund pursuant to the terms and provisions of this Agreement, and
the Adviser is interested in furnishing this advice and these services;
NOW, THEREFORE, in consideration of the covenants and the mutual
promises hereinafter set forth, the parties hereto, intending to be legally
bound hereby, mutually agree as follows:
1. APPOINTMENT OF ADVISER. The Trust hereby employs the Adviser and the
Adviser hereby accepts this employment, to render investment advice and
management services with respect to the assets of the Fund for the period and on
the terms set forth in this Agreement, subject to the supervision and direction
of the Trust's Board of Trustees.
2. DUTIES OF ADVISER.
(a) GENERAL DUTIES. The Adviser shall act as Adviser to the Fund and
shall supervise investments of the Fund on behalf of the Fund in accordance with
the investment objectives, programs and restrictions of the Fund as provided in
the Trust's governing documents, including, without limitation, the Trust's
Agreement and Declaration of Trust and By-Laws, or otherwise and such other
limitations as the Trustees may impose from time to time in writing to the
Adviser. Without limiting the generality of the foregoing, the Adviser shall:
(i) furnish the Fund with advice and recommendations with respect to the
investment of the Fund's assets and the purchase and sale of portfolio
securities for the Fund, including the taking of such other steps as may be
necessary to implement such advice and recommendations; (ii) furnish the Fund
with reports, statements and other data on securities, economic conditions and
other pertinent subjects which the Trust's Board of Trustees may reasonably
request; (iii) manage the investments of the Fund, subject to the ultimate
supervision and direction of the Trust's Board of Trustees; (iv) provide persons
satisfactory to the Trust's Board of Trustees to act as officers and employees
of the Trust and the Fund (such officers and employees, as well as certain
trustees, may be trustees, directors, officers, partners, or employees of the
Adviser or its affiliates) but not including personnel to provide administrative
services or distribution services to the Fund; and (v) render to the Trust's
Board of Trustees such periodic and special reports with respect to the Fund's
investment activities as the Board may reasonably request.
(b) BROKERAGE. The Adviser shall place orders for the purchase and sale
of securities either directly with the issuer or with a broker or dealer
selected by the Adviser. In placing the Fund's securities trades, the Adviser
agrees to seek overall best execution. Within the framework of this policy, the
Adviser will consider favorability of price and efficiency of execution and may
consider the financial responsibility, research and investment information, and
other services provided by brokers or dealers who may effect or be a party to
any such transaction or other transactions to which other clients of the Adviser
may be a party.
It is also understood that it is desirable for the Fund that the
Adviser have access to investment and market research and securities and
economic analyses provided by brokers and others. It is also understood that
brokers providing such services may execute brokerage transactions at a higher
cost to the Fund than might result from the allocation of brokerage to other
brokers solely on the basis of seeking the most favorable price and efficient
execution. Therefore, the purchase and sale of securities for the Fund may be
made with brokers who provide this research and analysis, subject to review by
the Trust's Board of Trustees from time to time with respect to the extent and
continuation of this practice to determine whether the Fund benefits, directly
or indirectly, from this practice. It is understood by both parties that the
Adviser may select broker-dealers for the execution of the Fund's portfolio
transactions that provide research and analysis as the Adviser may lawfully and
appropriately use in its investment management and advisory capacities, whether
or not such research and analysis may also be useful to the Adviser in
connection with its services to other clients.
On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of one or more of the Fund as well as of other
clients, the Adviser, to the extent permitted by applicable laws and
regulations, may aggregate the securities to be so purchased or sold in order to
obtain the most favorable price or lower brokerage commissions and the most
efficient execution. In this event, allocation of the securities so purchased or
sold, as well as the expenses incurred in the transaction, will be made by the
Adviser in the manner it considers to be the most equitable and consistent with
its fiduciary obligations to the Fund and to such other clients.
(c) ADMINISTRATIVE SERVICES. The Adviser, pursuant to a separate
Administrative Services Agreement, shall supervise the administration of the
Fund's business affairs although the provision of administrative services, to
the extent not covered by subparagraphs (a) or (b) above, is not the obligation
of the Adviser under this Agreement.
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3. BEST EFFORTS AND JUDGMENT. The Adviser shall use its best judgment
and efforts in rendering the advice and services to the Fund as contemplated by
this Agreement.
4. INDEPENDENT CONTRACTOR. The Adviser shall, for all purposes herein,
be deemed to be an independent contractor, and shall, unless otherwise expressly
provided and authorized to do so, have no authority to act for or represent the
Trust or the Fund in any way, or in any way be deemed an agent for the Trust or
for the Fund. It is expressly understood and agreed that the services to be
rendered by the Adviser to the Fund under the provisions of this Agreement are
not to be deemed exclusive, and the Adviser shall be free to render similar or
different services to others so long as its ability to render the services
provided for in this Agreement shall not be impaired thereby.
5. ADVISER'S PERSONNEL. The Adviser shall, at its own expense, maintain
such staff and employ or retain such personnel and consult with such other
persons as it shall from time to time determine to be necessary to the
performance of its obligations under this Agreement. Without limiting the
generality of the foregoing, the staff and personnel of the Adviser shall be
deemed to include persons employed or retained by the Adviser to furnish
statistical information, research, and other factual information, advice
regarding economic factors and trends, information with respect to technical and
scientific developments, and such other information, advice and assistance as
the Adviser or the Trust's Board of Trustees may desire and reasonably request.
6. REPORTS BY FUND TO ADVISER. The Fund will from time to time furnish
to the Adviser detailed statements of its investments and assets, and
information as to its investment objective and needs, and will make available to
the Adviser such financial reports, proxy statements, legal and other
information relating to the Fund's investments as may be in its possession or
available to it, together with such other information as the Adviser may
reasonably request.
7. EXPENSES.
(a) With respect to the operation of the Fund, the Adviser is
responsible for (i) the compensation of any of the Trust's trustees, officers,
and employees who are affiliates of the Adviser (but not the compensation of
employees performing services in connection with expenses which are the Fund's
responsibility under Subparagraph 7(b) below), (ii) the expenses of printing and
distributing the Fund's prospectuses, statements of additional information, and
sales and advertising materials (but not the legal, auditing or accounting fees
attendant thereto) to prospective investors (but not to existing shareholders),
and (iii) providing office space and equipment reasonably necessary for the
operation of the Fund.
(b) The Fund is responsible for and has assumed the obligation for
payment of all of its expenses, other than as stated in Subparagraph 7(a) above
or to the extent not covered under a separate agreement for administrative
services, including but not limited to: fees and expenses incurred in connection
with the issuance, registration and transfer of its shares; brokerage and
commission expenses; all expenses of transfer, receipt, safekeeping, servicing
and accounting for the cash, securities and other property of the Trust for the
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benefit of the Fund including all fees and expenses of its custodian,
shareholder services agent and accounting services agent; interest charges on
any borrowings; costs and expenses of pricing and calculating its daily net
asset value and of maintaining its books of account required under the 1940 Act;
taxes, if any; expenditures in connection with meetings of the Fund's
Shareholders and Board of Trustees that are properly payable by the Fund;
salaries and expenses of officers and fees and expenses of members of the
Trust's Board of Trustees or members of any advisory board or committee who are
not members of, affiliated with or interested persons of the Adviser; insurance
premiums on property or personnel of the Fund which inure to its benefit,
including liability and fidelity bond insurance; the cost of preparing and
printing reports, proxy statements, prospectuses and statements of additional
information of the Fund or other communications for distribution to existing
shareholders; legal, auditing and accounting fees; trade association dues; fees
and expenses (including legal fees) of obtaining and maintaining any required
registration or notification for its shares for sale under federal and
applicable state and foreign securities laws; all expenses of maintaining and
servicing shareholder accounts, including all charges for transfer, shareholder
recordkeeping, dividend disbursing, redemption, and other agents for the benefit
of the Fund, if any; and all other charges and costs of its operation plus any
extraordinary and non-recurring expenses, except as herein otherwise prescribed.
(c) To the extent the Adviser incurs any costs by assuming expenses
which are an obligation of the Fund as set forth herein, the Fund shall promptly
reimburse the Adviser for such costs and expenses, except to the extent the
Adviser has otherwise agreed to bear such expenses. To the extent the services
for which the Fund is obligated to pay are performed by the Adviser, the Adviser
shall be entitled to recover from the Fund to the extent of the Adviser's actual
costs for providing such services.
8. INVESTMENT ADVISORY FEE.
(a) The Fund shall pay to the Adviser, and the Adviser agrees to
accept, as full compensation for all investment management and advisory services
furnished or provided to such Fund pursuant to this Agreement, an advisory fee
of 0.70% of net assets per annum.
(b) The advisory fee shall be accrued daily by the Fund and paid to the
Adviser upon its request.
(c) The initial fee under this Agreement shall be payable on the first
business day of the first month following the effective date of this Agreement
and shall be prorated as set forth below. If this Agreement is terminated before
the end of any month, the fee to the Adviser shall be prorated for the portion
of any month in which this Agreement is in effect which is not a complete month
according to the proportion which the number of calendar days in the month
during which the Agreement is in effect bears to the number of calendar days in
the month, and shall be payable within ten (10) days after the date of
termination.
(d) The Adviser may reduce any portion of the compensation or
reimbursement of expenses due to it pursuant to this Agreement and may agree to
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make payments to limit the expenses which are the responsibility of the Fund
under this Agreement. Any such reduction or payment shall be applicable only to
such specific reduction or payment and shall not constitute an agreement to
reduce any future compensation or reimbursement due to the Adviser hereunder or
to continue future payments. Any such reduction will be agreed to before the
accrual of the related expense or fee and will be estimated daily and reconciled
and paid on a monthly basis.
(e) The Adviser may agree not to require payment of any portion of the
compensation or reimbursement of expenses otherwise due to it pursuant to this
Agreement before the time that compensation or reimbursement has accrued as a
liability of the Fund. Any such agreement shall be applicable only with respect
to the specific items covered thereby and shall not constitute an agreement not
to require payment of any future compensation or reimbursement due to the
Adviser hereunder.
9. FUND SHARE ACTIVITIES OF ADVISERS PARTNERS, OFFICERS AND EMPLOYEES.
The Adviser agrees that neither it nor any of its partners, officers or
employees shall take any short position in the shares of the Fund. This
prohibition shall not prevent the purchase of such shares by any of the officers
and partners or bona fide employees of the Adviser or any trust, pension,
profit-sharing or other benefit plan for such persons or affiliates thereof, at
a price not less than the net asset value thereof at the time of purchase, as
allowed pursuant to rules promulgated under the 1940 Act.
10. CONFLICTS WITH TRUST'S GOVERNING DOCUMENTS AND APPLICABLE LAWS.
Nothing herein contained shall be deemed to require the Trust or the Fund to
take any action contrary to the Trust's Agreement and Declaration of Trust,
By-Laws, or any applicable statute or regulation, or to relieve or deprive the
Board of Trustees of the Trust of its responsibility for and control of the
conduct of the affairs of the Trust and Fund.
11. ADVISER'S LIABILITIES.
(a) In the absence of willful misfeasance, bad faith, gross negligence,
or reckless disregard of the obligations or duties hereunder on the part of the
Adviser, the Adviser shall not be subject to liability to the Trust or the Fund
or to any shareholder of the Fund for any act or omission in the course of, or
connected with, rendering services hereunder or for any losses that may be
sustained in the purchase, holding or sale of any security by the Fund.
(b) The Fund shall indemnify and hold harmless the Adviser, its general
partners and the shareholders, directors, officers and employees of the Fund
(any such person, an "Indemnified Party") against any loss, liability, claim,
damage or expense (including the reasonable cost of investigating and defending
any alleged loss, liability, claim, damage or expenses and reasonable counsel
fees incurred in connection therewith) arising out of the Indemnified Party's
performance or non-performance of any duties under this Agreement provided,
however, that nothing herein shall be deemed to protect any Indemnified Party
against any liability to which such Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
under this Agreement.
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(c) No provision of this Agreement shall be construed to protect any
Trustee or officer of the Trust, or partner or officer of the Adviser, from
liability in violation of Sections 17(h) and (i) of the 1940 Act.
12. NON-EXCLUSIVITY. The Trust's employment of the Adviser is not an
exclusive arrangement, and the Trust may from time to time employ other
individuals or entities to furnish it with the services provided for herein.
13. TERM. This Agreement shall become effective on the date that is the
latest of (1) the execution of this Agreement, (2) the approval of this
Agreement by the Board of Trustees of the Trust and (3) the approval of this
Agreement by the shareholders of the Fund in a special meeting of shareholders
of the Fund or by unanimous written consent if the Fund has no public
shareholders. This Agreement shall remain in effect for a period of two (2)
years, unless sooner terminated as hereinafter provided. This Agreement shall
continue in effect thereafter for additional periods not exceeding one (l) year
so long as such continuation is approved for the Fund at least annually by (i)
the Board of Trustees of the Trust or by the vote of a majority of the
outstanding voting securities of the Fund and (ii) the vote of a majority of the
Trustees of the Trust who are not parties to this Agreement nor interested
persons thereof, cast in person at a meeting called for the purpose of voting on
such approval.
14. TERMINATION. This Agreement may be terminated by the Trust on
behalf of the Fund at any time without payment of any penalty, by the Board of
Trustees of the Trust or by vote of a majority of the outstanding voting
securities of a Fund, upon sixty (60) days' written notice to the Adviser, and
by the Adviser upon sixty (60) days' written notice to the Fund.
15. TERMINATION BY ASSIGNMENT. This Agreement shall terminate
automatically if it is transferred or assigned, as defined in the 1940 Act.
16. TRANSFER, ASSIGNMENT. This Agreement may not otherwise be
transferred, assigned, sold or in any manner hypothecated or pledged without the
affirmative vote or written consent of the holders of a majority of the
outstanding voting securities of the Fund.
17. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute or rule, or shall be otherwise
rendered invalid, the remainder of this Agreement shall not be affected thereby.
18. DEFINITIONS. The terms "majority of the outstanding voting
securities" and "interested persons" shall have the meanings as set forth in the
1940 Act.
19. NOTICE OF DECLARATION OF TRUST. The Adviser agrees that the Trust's
obligations under this Agreement shall be limited to the Fund and to its assets,
and that the Adviser shall not seek satisfaction of any such obligation from the
shareholders of the Fund nor from any trustee, officer, employee or agent of the
Trust or the Fund.
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20. CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
21. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California without giving effect to
the conflict of laws principles thereof; provided that nothing herein shall be
construed to preempt, or to be inconsistent with, any federal law, regulation or
rule, including the 1940 Act and the Investment Advisers Act of 1940 and any
rules and regulations promulgated thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested by their duly authorized officers, all on the day and
year first above written.
ADVISORS SERIES TRUST VAN DEVENTER & XXXX
By: ____________________________ By: ____________________________________
Title: __________________________ Title: __________________________________
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