ADVISORS SERIES TRUST INVESTMENT ADVISORY AGREEMENT
THIS
INVESTMENT ADVISORY
AGREEMENT is made as of the 28th day of December, 2007, by and between
Advisors Series Trust, a Delaware statutory trust (hereinafter called the
"Trust"), on behalf of each series of the Trust as listed in Schedule A attached
hereto (each a “Fund” and together the "Funds") and Rigel Capital LLC, a
Delaware limited liability company (hereinafter called the
"Advisor").
WITNESSETH:
WHEREAS,
the Trust is an
open-end management investment company, registered as such under the Investment
Company Act of 1940, as amended (the "Investment Company Act"); and
WHEREAS,
each Fund is a series
of the Trust having separate assets and liabilities; and
WHEREAS,
the Advisor is
registered as an investment advisor under the Investment Advisers Act of 1940
(the "Advisers Act") and is engaged in the business of supplying investment
advice as an independent contractor; and
WHEREAS,
the Trust desires to
retain the Advisor to render advice and services to the Funds pursuant to the
terms and provisions of this Agreement, and the Advisor desires to furnish
said
advice and services;
NOW,
THEREFORE, in
consideration of the covenants and the mutual promises hereinafter set forth,
the parties to this Agreement, intending to be legally bound hereby, mutually
agree as follows:
1.
APPOINTMENT OF ADVISOR. The
Trust hereby employs the Advisor and the Advisor hereby accepts such employment,
to render investment advice and related services with respect to the assets
of
the Funds 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
ADVISOR.
(a)
GENERAL DUTIES. The
Advisor shall act as investment advisor to the Funds and shall supervise
investments of the Funds on behalf of the Funds in accordance with the
investment objectives, policies and restrictions of the Funds as set forth
in
the Funds' and Trust's governing documents, including, without limitation,
the
Trust's Agreement and Declaration of Trust and By-Laws; the Funds' prospectus,
statement of additional information and undertakings; and such other
limitations, policies and procedures as the Trustees may impose from time to
time in writing to the Advisor. In providing such services, the
Advisor shall at all times adhere to the provisions and restrictions contained
in the federal securities laws, applicable state securities laws, the Internal
Revenue Code, the Uniform Commercial Code and other applicable law.
Without
limiting the generality of the foregoing, the Advisor shall: (i) furnish
the Funds with advice and recommendations with respect to the investment of
each
Fund's assets and the purchase and sale of portfolio securities for each Fund,
including the taking of such steps as may be necessary to implement such advice
and recommendations (i.e., placing the orders); (ii) manage and oversee the
investments of the Funds, subject to the ultimate supervision and direction
of
the Trust's Board of Trustees; (iii) vote proxies for the Funds, file
ownership reports under Section 13 of the Securities Exchange Act of 1934 for
the Funds, and take other actions on behalf of the Funds; (iv) maintain the
books and records required to be maintained by the Funds except to the extent
arrangements have been made for such books and records to be maintained by
the
administrator or another agent of the Funds; (v) furnish reports,
statements and other data on securities, economic conditions and other matters
related to the investment of each Fund's assets which the Funds' administrator
or distributor or the officers of the Trust may reasonably request; and
(vi) render to the Trust's Board of Trustees such periodic and special
reports with respect to each Fund's investment activities as the Board may
reasonably request, including at least one in-person appearance annually before
the Board of Trustees.
(b)
BROKERAGE. The Advisor
shall be responsible for decisions to buy and sell securities for the Funds,
for
broker-dealer selection, and for negotiation of brokerage commission rates,
provided that the Advisor shall not direct orders to an affiliated person of
the
Advisor without general prior authorization to use such affiliated broker or
dealer for the Trust's Board of Trustees. The Advisor's primary consideration
in
effecting a securities transaction will be execution at the most favorable
price. In selecting a broker-dealer to execute each particular transaction,
the
Advisor may take the following into consideration: the best net price available;
the reliability, integrity and financial condition of the broker-dealer; the
size of and difficulty in executing the order; and the value of the expected
contribution of the broker-dealer to the investment performance of the Funds
on
a continuing basis. The price to each Fund in any transaction may be less
favorable than that available from another broker-dealer if the difference
is
reasonably justified by other aspects of the portfolio execution services
offered.
Subject
to such policies as the Board of Trustees of the Trust may determine and
consistent with Section 28(e) of the Securities and Exchange Act of 1934, as
amended, the Advisor shall not be deemed to have acted unlawfully or to have
breached any duty created by this Agreement or otherwise solely by reason of
its
having caused the Funds to pay a broker or dealer that provides (directly or
indirectly) brokerage or research services to the Advisor an amount of
commission for effecting a portfolio transaction in excess of the amount of
commission another broker or dealer would have charged for effecting that
transaction, if the Advisor determines in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Advisor's overall responsibilities with respect
to
the Trust. Subject to the same policies and legal provisions, the Advisor is
further authorized to allocate the orders placed by it on behalf of the Funds
to
such brokers or dealers who also provide research or statistical material,
or
other services, to the Trust, the Advisor, or any affiliate of either. Such
allocation shall be in such amounts and proportions as the Advisor shall
determine, and the Advisor shall report on such allocations regularly to the
Trust, indicating the broker-dealers to whom such allocations have been made
and
the basis therefor.
On
occasions when the Advisor deems the purchase or sale of a security to be in
the
best interest of the Funds as well as of other clients, the Advisor, 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 such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Advisor in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to the Funds and to such other clients.
3.
REPRESENTATIONS OF THE
ADVISOR.
(a)
The
Advisor shall use its best judgment and efforts in rendering the advice and
services to the Funds as contemplated by this Agreement.
(b)
The
Advisor shall maintain all licenses and registrations necessary to perform
its
duties hereunder in good order.
(c)
The
Advisor shall conduct its operations at all times in conformance with the
Advisers Act, the Investment Company Act, and any other applicable state and/or
self-regulatory organization regulations.
(d)
The
Advisor shall maintain errors and omissions insurance in an amount at least
equal to that disclosed to the Board of Trustees in connection with their
approval of this Agreement.
4.
INDEPENDENT CONTRACTOR. The
Advisor 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 Funds in any
way,
or in any way be deemed an agent for the Trust or for the Funds. It is expressly
understood and agreed that the services to be rendered by the Advisor to the
Funds under the provisions of this Agreement are not to be deemed exclusive,
and
the Advisor 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.
ADVISOR'S PERSONNEL. The
Advisor 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 Advisor shall be deemed to include persons employed or retained
by the Advisor 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 Advisor or the Trust's Board of Trustees may desire
and reasonably request and any compliance staff and personnel required by the
Advisor.
6.
EXPENSES.
(a)
With
respect to the operation of the Funds, the Advisor shall be responsible for
(i)
each Fund’s organizational expenses, (ii) providing the personnel, office space
and equipment reasonably necessary for the operation of the Funds, (iii) the
expenses of printing and distributing extra copies of the Funds' prospectus,
statement 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) to the extent such expenses are
not
covered by any applicable plan adopted pursuant to Rule 12b-1 under the
Investment Company Act, (iv) the costs of any special Board of Trustees meetings
or shareholder meetings convened for the primary benefit of the Advisor, and
(v)
any costs of liquidating or reorganizing the Funds (unless such cost is
otherwise allocated by the Board of Trustees). If the Advisor has agreed to
limit the operating expenses of the Funds, the Advisor shall also be responsible
on a monthly basis for any operating expenses that exceed the agreed upon
expense limit.
(b)
The
Fund is responsible for and has assumed the obligation for payment of all of
its
expenses, other than as stated in Subparagraph 6(a) above, 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 benefit of the Funds
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 Investment Company Act; taxes, if any;
a
pro rata portion of expenditures in connection with meetings of each Fund's
shareholders and the Trust's Board of Trustees that are properly payable by
the
Funds; salaries and expenses of officers of the Trust, including without
limitation the Trust’s Chief Compliance Officer, 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
Advisor; insurance premiums on property or personnel of each 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 Funds or other communications for distribution
to
existing shareholders; legal, auditing and accounting fees; all or any portion
of trade association dues or education program expenses determined appropriate
by the Board of Trustees; fees and expenses (including legal fees) of
registering and maintaining registration of 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 Funds, if any; and all other charges and costs of its
operation plus any extraordinary and non-recurring expenses, except as herein
otherwise prescribed.
(c)
The
Advisor may voluntarily absorb certain Fund expenses or waive the Advisor's
own
advisory fee.
(d)
To
the extent the Advisor incurs any costs by assuming expenses which are an
obligation of the Funds as set forth herein, each Fund shall promptly reimburse
the Advisor for such costs and expenses, except to the extent the Advisor has
otherwise agreed to bear such expenses. To the extent the services for which
a
Fund is obligated to pay are performed by the Advisor, the Advisor shall be
entitled to recover from such Fund to the extent of the Advisor's actual costs
for providing such services. In determining the Advisor's actual costs, the
Advisor may take into account an allocated portion of the salaries and overhead
of personnel performing such services.
(e)
The
Advisor may not pay fees in addition to any Fund distribution or servicing
fees
to financial intermediaries, including without limitation banks, broker-dealers,
financial advisors, or pension administrators, for sub-administration,
sub-transfer agency or any other shareholder servicing or distribution services
associated with shareholders whose shares are held in omnibus or other group
accounts, except with the prior authorization of the Trust’s Board of
Trustees. Where such arrangements are authorized by the Trust’s Board
of Trustees, the Advisor shall report regularly to the Trust on the amounts
paid
and the relevant financial institutions.
7.
INVESTMENT ADVISORY AND MANAGEMENT
FEE.
(a)
Each
Fund shall pay to the Advisor, and the Advisor agrees to accept, as full
compensation for all investment management and advisory services furnished
or
provided to such Fund pursuant to this Agreement, an annual management fee
at
the rate set forth in Schedule A to this Agreement.
(b)
The
management fee shall be accrued daily by each Fund and paid to the Advisor
on
the first business day of the succeeding month.
(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 prior to the end
of
any month, the fee to the Advisor 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
fee payable to the Advisor under this Agreement will be reduced to the extent
of
any receivable owed by the Advisor to the Fund and as required under any expense
limitation applicable to a Fund.
(e)
The
Advisor voluntarily may reduce any portion of the compensation or reimbursement
of expenses due to it pursuant to this Agreement and may agree to make payments
to limit the expenses which are the responsibility of a 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 Advisor hereunder or to
continue future payments. Any such reduction will be agreed to prior to accrual
of the related expense or fee and will be estimated daily and reconciled and
paid on a monthly basis.
(f)
Any
such reductions made by the Advisor in its fees or payment of expenses which
are
a Fund's obligation are subject to reimbursement by the Fund to the Advisor,
if
so requested by the Advisor, in subsequent fiscal years if the aggregate amount
actually paid by the Fund toward the operating expenses for such fiscal year
(taking into account the reimbursement) does not exceed the applicable
limitation on Fund expenses. Under the expense limitation agreement, the Advisor
may recoup reimbursements made in any fiscal year of a Fund over the following
three fiscal years. Any such reimbursement is also contingent upon
Board of Trustees review and approval at time the reimbursement is made. Such
reimbursement may not be paid prior to the Fund's payment of current ordinary
operating expenses.
(g)
The
Advisor may agree not to require payment of any portion of the compensation
or
reimbursement of expenses otherwise due to it pursuant to this Agreement. 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 Advisor
hereunder.
8.
NO SHORTING; NO BORROWING.
The Advisor agrees that neither it nor any of its officers or employees shall
take any short position in the shares of a Fund. This prohibition shall not
prevent the purchase of such shares by any of the officers or employees of
the
Advisor 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 Investment Company Act. The Advisor agrees that neither it nor any of its
officers or employees shall borrow from a Fund or pledge or use a Fund's assets
in connection with any borrowing not directly for the Fund's benefit. For this
purpose, failure to pay any amount due and payable to a Fund for a period of
more than thirty (30) days shall constitute a borrowing.
9.
CONFLICTS WITH TRUST'S GOVERNING
DOCUMENTS AND APPLICABLE LAWS. Nothing herein contained shall be deemed
to require the Trust or the Funds 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
Funds. In this connection, the Advisor acknowledges that the Trustees retain
ultimate plenary authority over the Funds and may take any and all actions
necessary and reasonable to protect the interests of shareholders.
10.
REPORTS AND ACCESS. The
Advisor agrees to supply such information to the Funds' administrator and to
permit such compliance inspections by the Funds' administrator as shall be
reasonably necessary to permit the administrator to satisfy its obligations
and
respond to the reasonable requests of the Trustees.
11.
ADVISOR'S LIABILITIES AND
INDEMNIFICATION.
(a)
The
Advisor shall have responsibility for the accuracy and completeness (and
liability for the lack thereof) of the statements in the Funds' offering
materials (including the prospectus, the statement of additional information,
advertising and sales materials), except for information supplied by the
administrator or the Trust or another third party for inclusion
therein.
(b)
The
Advisor shall be liable to the Funds for any loss (including brokerage charges)
incurred by the Funds as a result of any improper investment made by the
Advisor.
(c)
In
the absence of willful misfeasance, bad faith, negligence, or reckless disregard
of the obligations or duties hereunder on the part of the Advisor, the Advisor
shall not be subject to liability to the Trust or the Funds or to any
shareholder of the Funds 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 Funds. Notwithstanding
the
foregoing, federal securities laws and certain state laws impose liabilities
under certain circumstances on persons who have acted in good faith, and
therefore nothing herein shall in any way constitute a waiver or limitation
of
any rights which the Trust, the Funds or any shareholder of the Funds may have
under any federal securities law or state law.
(d)
Each
party to this Agreement shall indemnify and hold harmless the other party and
the shareholders, directors, officers and employees of the other party (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.
(e)
No
provision of this Agreement shall be construed to protect any Trustee or officer
of the Trust, or officer of the Advisor, from liability in violation of Sections
17(h) and (i) of the Investment Company Act.
12.
NON-EXCLUSIVITY; TRADING FOR
ADVISOR'S OWN ACCOUNT. The Trust's employment of the Advisor is not an
exclusive arrangement. The Trust may from time to time employ other individuals
or entities to furnish it with the services provided for herein. Likewise,
the
Advisor may act as investment advisor for any other person, and shall not in
any
way be limited or restricted from buying, selling or trading any securities
for
its or their own accounts or the accounts of others for whom it or they may
be
acting, provided, however, that the Advisor expressly represents that it will
undertake no activities which will adversely affect the performance of its
obligations to the Funds under this Agreement; and provided further that the
Advisor will adhere to a code of ethics governing employee trading and trading
for proprietary accounts that conforms to the requirements of the Investment
Company Act and the Advisers Act and has been approved by the Trust's Board
of
Trustees.
13.
TERM.
This
Agreement shall become effective at the time the Funds commence operations
pursuant to an effective amendment to the Trust's Registration Statement under
the Securities Act of 1933, as amended and 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 Funds
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 each 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. The terms "majority of the outstanding
voting securities" and "interested persons" shall have the meanings as set
forth
in the Investment Company Act.
14.
RIGHT TO USE
NAME
The
Advisor warrants that the Funds' names are not deceptive or misleading and
that
the Advisor has rights to any distinctive name used by the Funds. The
Funds acknowledges that their use of any distinctive name is derivative of
its
relationship with the Advisor. The Funds may use the names “Advisors
Series Trust,” “Rigel Capital” or any name derived from or using the name
“Rigel” only for so long as this Agreement or any extension, renewal or
amendment hereof remains in effect. Within sixty (60) days from such
time as this Agreement shall no longer be in effect, the Funds shall cease
to
use such a name or any other name connected with the Advisor.
15.
TERMINATION; NO
ASSIGNMENT.
(a)
This
Agreement may be terminated by the Trust on behalf of the Funds 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 Advisor, and by the Advisor upon sixty (60) days'
written notice to the Funds. In the event of a termination, the Advisor shall
cooperate in the orderly transfer of the Funds' affairs and, at the request
of
the Board of Trustees, transfer any and all books and records of the Funds
maintained by the Advisor on behalf of the Funds.
(b)
This
Agreement cannot be assigned without the consent of the Board of
Trustees. This Agreement shall terminate automatically in the event
of any transfer or assignment thereof, as defined in the Investment Company
Act.
16.
NONPUBLIC
PERSONAL
INFORMATION.
Notwithstanding
any provision herein to the contrary, the Advisor hereto
agrees on behalf of itself and its directors, trustees, shareholders, officers,
and employees (1) to treat confidentially and as proprietary information of
the
Trust (a) all records and other information relative to the Funds’ prior,
present, or potential shareholders (and clients of said shareholders) and (b)
any Nonpublic Personal Information, as defined under Section 248.3(t) of
Regulation S-P (“Regulation S-P”), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act
(the “G-L-B Act”), and (2) except after prior notification to and approval in
writing by the Trust, not to use such records and information for any purpose
other than the performance of its responsibilities and duties hereunder, or
as
otherwise permitted by Regulation S-P or the G-L-B Act, and if in compliance
therewith, the privacy policies adopted by the Trust and communicated in writing
to the Advisor. Such written approval shall not be unreasonably
withheld by the Trust and may not be withheld where the Advisor may be exposed
to civil or criminal contempt or other proceedings for failure to comply after
being requested to divulge such information by duly constituted
authorities.
17.
ANTI-MONEY LAUNDERING COMPLIANCE.
The Advisor acknowledges that, in compliance with the Bank Secrecy Act,
as amended, the USA PATRIOT Act, and any implementing regulations thereunder
(together, “AML Laws”), the Trust has adopted an Anti-Money Laundering Policy.
The Advisor agrees to comply with the Trust’s Anti-Money Laundering Policy and
the AML Laws, as the same may apply to the Advisor, now and in the future.
The
Advisor further agrees to provide to the Trust and/or the Administrator such
reports, certifications and contractual assurances as may be reasonably
requested by the Trust. The Trust may disclose information regarding the Advisor
to governmental and/or regulatory or self-regulatory authorities to the extent
required by applicable law or regulation and may file reports with such
authorities as may be required by applicable law or regulation.
18.
CERTIFICATIONS; DISCLOSURE
CONTROLS AND PROCEDURES. The Advisor acknowledges that, in compliance
with the Xxxxxxxx-Xxxxx Act of 2002, and the implementing regulations
promulgated thereunder, the Trust and the Funds are required to make certain
certifications and have adopted disclosure controls and procedures. To the
extent reasonably requested by the Trust, the Advisor agrees to use its best
efforts to assist the Trust and the Funds in complying with the Xxxxxxxx-Xxxxx
Act of 2002 and implementing the Trust’s disclosure controls and procedures. The
Advisor agrees to inform the Trust of any material development related to the
Funds that the Advisor reasonably believes is relevant to the Funds’
certification obligations under the Xxxxxxxx-Xxxxx Act of 2002.
19.
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.
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 Investment
Company Act and the Advisers Act and any rules and regulations promulgated
thereunder.
IN
WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their duly
authorized officers, all on the day and year first above written.
|
on
behalf of the
RIGEL
FUNDS
|
RIGEL
CAPITAL,
LLC
|
|||
| By: | /s/Xxxxxxx X. Xxxx | By: | /s/Xxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxx | Name: | Xxxx X. Xxxxx | |
| Title: | President | Title: | Executive Vice President - Investments | |
SCHEDULE
A
|
Series
or Fund of Advisors
Series Trust
|
Annual
Fee
Rate
|
|
Rigel
U.S. Equity Small-Mid Cap Growth Fund
|
1.00%
|
