DEGREEN EMERGING MARKET MANAGERS FUND INVESTMENT ADVISORY AGREEMENT
Exhibit 2(g)
AGREEMENT made as of August 21, 2008 between DEGREEN EMERGING MARKET MANAGERS FUND,
a Delaware statutory trust (the “Fund”), and XXXXXXX CAPITAL MANAGEMENT, LLC (the “Adviser”), an
Ohio limited liability company.
WHEREAS, the Fund desires to retain the Adviser as investment adviser to furnish
certain investment advisory and portfolio management services to the Fund, and the Adviser is
willing to furnish these services;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, it is agreed between the parties as follows:
1. Appointment. The Fund appoints the Adviser as investment adviser of the
Fund for the period and on the terms set forth in this Agreement. The Adviser accepts this
appointment and agrees to render the services set forth for the compensation described.
2. Duties as Investment Adviser.
(a) Subject to the supervision of the Fund’s Board of Trustees (the “Board”), the
Adviser will have full discretion and authority (i) to manage the assets and liabilities of the
Fund and (ii) to manage the day-to-day business and affairs of the Fund. In furtherance of and
subject to the foregoing, the Adviser will have full power and authority on behalf of the Fund,
among other matters:
| (1) | to purchase, sell, exchange, trade and otherwise deal in and with securities and other property of the Fund and to loan securities of the Fund; | ||
| (2) | to open, maintain and close accounts with brokers and dealers, to make all decisions relating to the manner, method and timing of securities and other investment transactions, to select and place orders with domestic and foreign brokers, dealers or other financial intermediaries for the execution, clearance or settlement of any transactions on behalf of the Fund on such terms as the Adviser considers appropriate, and to grant limited discretionary authorization to such persons with respect to price, time and other terms of investment and trading transactions, subject to Paragraph 2(b); | ||
| (3) | to borrow from banks or other financial institutions and to pledge Fund assets as collateral therefor, to trade on margin, to exercise or refrain from exercising all rights regarding the Fund’s investments, and to instruct custodians regarding the settlement of transactions, the disbursement of payments to the Fund’s investors (the “Shareholders”) with respect to repurchases of shares in the Fund (“Shares”) and the payment of Fund expenses, including those relating to the organization of the Fund; | ||
| (4) | to call and conduct meetings of Shareholders at the Fund’s principal office or elsewhere as it may determine and to assist the Board in calling and conducting meetings of the Board; | ||
| (5) | to engage and terminate such attorneys, accountants and other professional advisers and consultants as the Adviser may deem necessary or advisable in connection with the affairs of the Fund or as may be directed by the Board; | ||
| (6) | to engage and terminate the services of persons to assist the Adviser in providing, or to provide under the Adviser’s control and supervision, advice and management to the Fund at the expense of the Adviser and to terminate such services; |
| (7) | as directed by the Board, to commence, defend and conclude any action, suit, investigation or other proceeding that pertains to the Fund or any assets of the Fund; | ||
| (8) | if directed by the Board, to arrange for the purchase of (A) one or more “key man” insurance policies on the life of any principal of a member of the Adviser, the benefits of which are payable to the Fund, or (B) any insurance covering the potential liabilities of the Fund or relating to the performance of the Board or the Adviser, or any of their principals, directors, officers, members, employees and agents; and | ||
| (9) | to execute, deliver and perform such contracts, agreements and other undertakings, and to engage in such activities and transactions as are, in the opinion of the Adviser, necessary and appropriate for the conduct of the business of the Fund without the act, vote or approval of any other Shareholders or person. |
(b) The Adviser, in its discretion, may use brokers who provide the Fund with
research, analysis, advice and similar services to execute portfolio transactions on behalf of the
Fund, and the Adviser may pay to those brokers in return for brokerage and research services a
higher commission than may be charged by other brokers, subject to the Adviser’s good faith
determination that such commission is reasonable in terms either of the particular transaction or
of the overall responsibility of the Adviser to the Fund and its other clients and that the total
commissions paid by the Fund will be reasonable in relation to the benefits to the Fund over the
long term. Whenever the Adviser simultaneously places orders to purchase or sell the same security
on behalf of the Fund and one or more other accounts advised by the Adviser, such orders will be
allocated as to price and amount among all such accounts in a manner believed to be equitable to
each account. The Fund recognizes that in some cases this procedure may adversely affect the
results obtained for the Fund.
3. Services Not Exclusive. The services furnished by the Adviser hereunder
are not to be deemed exclusive. The Adviser is free to furnish similar services to others. Nothing
in this Agreement limits or restricts the right of any director, officer or employee of the Adviser
or its affiliates, who also may be a Trustee, officer or employee of the Fund, to engage in any
other business or to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar or dissimilar nature.
4. Expenses.
(a) During the term of this Agreement, the Fund will bear all expenses incurred in
the business of the Fund not specifically assumed by the Adviser and other service providers
pursuant to their agreements with the Fund. Expenses to be borne by the Fund will include, but are
not limited to, the following:
| (1) | all costs and expenses directly related to portfolio transactions and positions for the Fund’s account, including, but not limited to, brokerage commissions, research fees, interest and commitment fees on loans and debit balances, borrowing charges on securities sold short, dividends on securities sold short but not yet purchased, custodial fees, shareholder servicing fees, margin fees, transfer taxes and premiums and taxes withheld on foreign dividends; | ||
| (2) | all costs and expenses associated with the organization, operation of the Fund, offering costs and the costs of compliance with applicable Federal or state laws; | ||
| (3) | fees of independent Trustees and the costs and expenses of holding any meetings of any Shareholders that are regularly scheduled, permitted or required to be held under the terms of the Fund’s Agreement and Declaration of Trust (the “Trust Agreement”), the Investment Advisers Act of 1940 (the “1940 Act”) or other applicable law; | ||
| (4) | the fees and disbursements of any attorneys, accountants, auditors and other consultants and professionals engaged on behalf of the Fund; |
| (5) | the costs of a fidelity bond and any liability or other insurance obtained on behalf of the Fund, the Adviser, or the Trustees; | ||
| (6) | all costs and expenses of preparing, setting in type, printing and distributing reports and other communications to Shareholders; | ||
| (7) | all expenses of computing the Fund’s net asset value, including any equipment or services obtained for the purpose of valuing the Fund’s investment portfolio, including appraisal and valuation services provided by third parties; | ||
| (8) | all charges for equipment or services used for communications between the Fund and any custodian, or other agent engaged by the Fund; | ||
| (9) | the fees of custodians and other persons providing administrative services to the Fund; and | ||
| (10) | such other types of expenses as may be approved from time to time by the Board. |
(b) The payment or assumption by the Adviser of any expenses of the Fund that the
Adviser is not required by this Agreement to pay or assume shall not obligate the Adviser to pay or
assume the same or any similar expense of the Fund on any subsequent occasion.
5. Compensation.
(a) In consideration of the Adviser’s services hereunder, at the end of each fiscal
year of the Fund, to the extent that the Fund’s Net Profits for all Fiscal Periods ending within or
coterminous with the close of such fiscal year exceed the Fund’s Net Losses for all Fiscal Periods
ending within or coterminous with the close of such fiscal year, the Fund agrees to pay to the
Adviser an incentive fee (an “Incentive Fee”) in an amount equal to 20% of such excess, in
accordance with the terms of the prospectus, without duplication for any Incentive Fees paid during
such fiscal year. See Prospectus — Shareholder Transaction Fees — Annual Incentive Fee. For the
purposes of calculating the Incentive Fee for any fiscal period, net profits will be determined by
taking into account contributions and withdrawals, net realized gain or loss (including realized
gain that may have been distributed to shareholders during such fiscal period) and the net change
in unrealized appreciation or depreciation of securities positions as determined by U.S. Bancorp
Fund Services, the Fund’s independent third-party administrator. Each investor’s High Water Xxxx
shall be the greater of (i) that investor’s initial invested amount (after sales load, if any),
plus or minus contributions and withdrawals, or (ii) the net asset value of that investor’s account
upon which the Incentive Fees was charged in any previous period, plus or minus contributions and
withdrawals..
The Incentive Fee will be determined as of the last day of each fiscal year of the Fund and will be
paid promptly thereafter from the assets of the Fund. In the event that a Fiscal Period ends by
reason of the
repurchase of Shares by the Fund pursuant to a periodic share repurchase offer, an Incentive Fee
will be determined as if the end of such Fiscal Period were the end of the Fund’s fiscal year, and
that portion of the Incentive Fee that is proportional to the Fund’s assets paid in respect of such
repurchase (not taking into account any proceeds from any contemporaneous purchases of Shares from
the Fund, by reinvestment or otherwise) will be paid to the Adviser for such Fiscal Period.
(b) No Incentive Fee will be payable for any fiscal year or Fiscal Period unless
the positive balance in the Fund’s cumulative loss account from prior Fiscal Periods (if any) has
been reduced to
zero by the Fund’s cumulative Net Profit. Upon the commencement of the Fund’s
operations, a cumulative loss account will be established for the Fund, which will be credited with
the dollar amount of the Fund’s Cumulative Loss on a monthly basis. If Fund assets are reduced
during a Fiscal Period as the result of share repurchases pursuant to a periodic share repurchase
offer or as a result of the Fund’s payment of a dividend or distribution when the Fund’s cumulative
loss account has a positive balance, the amount of the Fund’s cumulative loss account will be
reduced (but not below zero) in proportion to the reduction in the Fund’s assets.
(c) For the purposes of this Agreement:
| (1) | “Cumulative Loss” shall mean the cumulative amount (for all Fiscal Periods) of the Fund’s realized and unrealized depreciation, investment loss and allocated expenses net of the Fund’s cumulative Net Profit. | ||
| (2) | “Fiscal Period” shall mean each twelve-month period ending on the Fund’s fiscal year end (or, for the first fiscal year of the Fund, the period from the commencement of the Fund through the Fund’s fiscal year end); provided that whenever the Fund repurchases Shares pursuant to a periodic repurchase offer, the period of time from the last fiscal period-end (or commencement of the Fund, as the case may be) through that date shall constitute a Fiscal Period. |
(d) Notwithstanding the foregoing paragraph (a), in the event of the termination of
this Agreement, the Fund will be required to pay an Incentive Fee to the Adviser calculated in a
manner as if such termination date were the end of the Fund’s fiscal year.
6. Duration and Termination.
(a) This Agreement will become effective on the date the Fund commences investment
operations.
(b) Unless sooner terminated as provided herein, this Agreement shall continue in
effect for two years from the date the Fund commences investment operations. Thereafter, if not
terminated, this Agreement shall continue automatically for successive one-year periods, provided
that such continuance is specifically approved at least annually (i) by a vote of a majority of
those Trustees who are not parties to this Agreement or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on such approval, and (ii) by the Board or
by vote of a majority of the outstanding voting securities of the Fund.
(c) Notwithstanding the foregoing, this Agreement may be terminated at any time,
without the payment of any penalty, by vote of the Board or by a vote of a majority of the Fund’s
outstanding voting securities on 60 days’ written notice to the Adviser or by the Adviser at any
time, without the payment of any penalty, on 60 days’ written notice to the Fund. This Agreement
will automatically terminate in the event of its assignment.
7. Limitation of Liability of the Adviser. The Adviser shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the Fund or any Shareholder
in connection with the matters to which this Agreement relates, except to the extent that such a
loss results from willful misfeasance, bad faith or gross negligence on its part in the performance
of its duties or from reckless disregard by it of its obligations and duties under this Agreement.
Any person, even though also an officer, director, employee, or agent of the Adviser or its
affiliates, who may be or become an officer, Trustee, employee or agent of the Fund, shall be
deemed, when rendering services to the Fund or acting with respect to any business of the Fund, to
be rendering such service to or acting solely for the Fund and not as an officer,
director,
employee, or agent or one under the control or direction of the Adviser even though compensated by
it.
8. Indemnification.
(a) The Fund will indemnify the Adviser and its affiliates, and each of their
members, directors, officers and employees and any of their affiliated persons, executors, heirs,
assigns, successors or other legal representatives (each an “Indemnified Person”) against any and
all costs, losses, claims, damages or liabilities, joint or several, including, without limitation,
reasonable attorneys’ fees and disbursements, resulting in any way from the performance or
non-performance of any Indemnified Person’s duties in respect of the Fund, except those resulting
from the willful misfeasance, bad faith or gross negligence of an Indemnified Person or the
Indemnified Person’s reckless disregard of such duties and, in the case of criminal proceedings,
unless such Indemnified Person had reasonable cause to believe its actions unlawful (collectively,
“disabling conduct”). Indemnification shall be made following: (i) a final decision on the merits
by a court or other body before whom the proceeding was brought that the Indemnified Person was not
liable by reason of disabling conduct or (ii) a reasonable determination, based upon a review of
the facts and reached by (A) the vote of a majority of the Trustees who are not parties to the
proceeding or (B) legal counsel selected by a vote of a majority of the Board in a written advice,
that the Indemnified Person is entitled to indemnification hereunder. The Fund shall advance to an
Indemnified Person reasonable attorneys’ fees and other costs and expenses incurred in connection
with defense of any action or proceeding arising out of such performance or non-performance. The
Adviser agrees, and each other Indemnified Person will be required to agree as a condition to any
such advance, that if one of the foregoing parties receives any such advance, the party will
reimburse the Fund for such fees, costs and expenses to the extent that it shall be determined that
the party was not entitled to indemnification under this Paragraph 8. The rights of indemnification
provided hereunder shall not be exclusive of or affect any other rights to which any person may be
entitled by contract or otherwise under law.
(b) Notwithstanding any of the foregoing, the provisions of this Paragraph 8 shall
not be construed so as to relieve the Indemnified Person of, or provide indemnification with
respect to, any liability (including liability under Federal securities laws, which, under certain
circumstances, impose liability even on persons who act in good faith) to the extent (but only to
the extent) that such liability may not be waived, limited or modified under applicable law or that
such indemnification would be in violation of applicable law, but shall be construed so as to
effectuate the provisions of this Paragraph 8 to the fullest extent permitted by law.
9. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or termination is sought.
10. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Ohio, without giving effect to the conflicts of laws principles thereof, and
in accordance with the 1940 Act. To the extent that the applicable laws of the State of Ohio
conflict with the applicable provisions of the 1940 Act, the latter shall control.
11. Consent to Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be brought against the Fund
in the courts of the State of Ohio, County of Cuyahoga, or, if the Adviser has or can acquire
jurisdiction, in the United States District Court for the Northern District of Ohio, and the Fund
hereby consents to the jurisdiction
of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein. Process in any action or
proceeding referred to in the preceding sentence may be served on the Fund anywhere in the world.
12. Use of Name. The Fund agrees that “DeGreen Emerging Market Managers” is
a trademark, service xxxx and trade name used by the Adviser. In the event of the termination of
this Agreement at any time, the Fund will, within 10 days of the Adviser’s request, take all
necessary action to change the name of the Fund to a name not including “DeGreen” or “DeGreen
Emerging Market Managers” in any form or permutation. The Fund agrees that the Fund’s failure to do
so is not compensable by monetary damages and that the Adviser shall be entitled to equitable
relief to enforce the Fund’s obligation hereunder. The provisions of this Paragraph 12 shall
survive the termination or cancellation of this Agreement.
13. Miscellaneous. 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. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall
not be affected thereby. This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors. As used in this Agreement, the terms “majority of
the outstanding voting securities,” “affiliated person,” “interested person,” “assignment,”
“broker,” “investment adviser,” “national securities exchange,” “sell” and “security” shall have
the same meaning as such terms have in the 1940 Act, subject to such exemption as may be granted by
the Securities and Exchange Commission by any rule, regulation or order. Where the effect of a
requirement of the 1940 Act reflected in any provision of this contract is relaxed by a rule,
regulation or order of the Securities and Exchange Commission, whether of special or general
application, such provision shall be deemed to incorporate the effect of such rule, regulation or
order.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by their officers designated as of the day and year first above written.
XXXXXXX CAPITAL MANAGEMENT, LLC
By:
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/s/ Xxxxx X. XxXxxxx
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| Name: Xxxxx X. XxXxxxx | ||||
| Title: President | ||||
By:
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/s/ Xxxxxxx Xxxxx
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| Name: Xxxxxxx Xxxxx | ||||
| Title: Trustee and Audit Committee Chair | ||||
