INVESTMENT MANAGEMENT CONTRACT BETWEEN HILLVIEW INVESTMENT TRUST II AND HILLVIEW CAPITAL ADVISORS, LLC
Exhibit
EX-99.d.1
BETWEEN
AND
HILLVIEW
CAPITAL ADVISORS, LLC
Contract
made as of August 12, 2005, between, Hillview Investment Trust II, a Delaware
business trust ("Trust"),on behalf of the Hillview Alpha Fund and the Hillview
International Alpha Fund (each a “Fund” and collectively the “Funds”) and
Hillview Capital Advisors, LLC, a Delaware limited liability company (the
"Manager").
WHEREAS
the Trust is registered under the Investment Company Act of 1940, as amended
("1940 Act"), as an open-end management investment company; and
WHEREAS
the Trust desires to retain Manager as investment manager to furnish certain
investment advisory and portfolio management services to the Trust and the
Funds, and Manager is willing to furnish such services;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, it is agreed between the parties hereto as follows:
Appointment.
The Trust hereby appoints Manager as investment manager for the period and
on
the terms set forth in this Contract. Manager accepts such appointment and
agrees to render the services herein set forth, for the compensation herein
provided.
Duties
as
Investment Manager.
Subject
to the supervision of the Trust's Board of Trustees ("Board"), Manager will
provide a continuous investment program for each Fund, including investment
research and management with respect to all securities and investments and
cash
equivalents in the Fund. Manager will determine from time to time what
securities and other investments will be purchased, retained or sold by the
Fund, and the brokers and dealers through whom trades will be executed. The
Manager may delegate to a Sub-Adviser, in whole or in part, its duty to provide
a continuous investment management program with respect to any Fund, including
the provision of investment management services with respect to a portion of
the
Fund's assets, in accordance with Paragraph 4 of this Contract.
Manager
agrees that in placing orders with brokers and dealers it will attempt to obtain
the best net results in terms of price and execution. Consistent with this
obligation Manager may, in its discretion, purchase and sell portfolio
securities to and from brokers and dealers who sell shares of the Fund or
provide the Trust or Manager's other clients with research, analysis, advice
and
similar services. Manager may pay to brokers and dealers, in return for research
and analysis, a
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higher
commission or spread than may be charged by other brokers and dealers, subject
to Manager's determining in good faith that such commission or spread is
reasonable in terms either of the particular transaction or of the overall
responsibility of Manager to such Fund and its other clients and that the total
commissions or spreads paid by such Fund will be reasonable in relation to
the
benefits to the Fund over the long term. In no instance will portfolio
securities be purchased from or sold to Manager or any affiliated person thereof
except in accordance with the federal securities laws and the rules and
regulations thereunder and any exemptive orders currently in effect. Whenever
Manager simultaneously places orders to purchase or sell the same security
on
behalf of a Fund and one or more other accounts advised by Manager, 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 Trust recognizes that in some
cases this procedure may adversely affect the results obtained for the Fund.
Manager
will oversee the maintenance of all books and records with respect to the
securities transactions of each Fund, and will furnish the Board with such
periodic and special reports as the Board reasonably may request. In compliance
with the requirements of Rule 31a-3 under the 1940 Act, Manager hereby agrees
that all records which it maintains for the Trust are the property of the Trust,
agrees to preserve for periods prescribed by Rule 31a-2 under the 1940 Act
any
records which it maintains for the Trust and which are required to be maintained
by Rule 31a-1 under the 1940 Act, and further agrees to surrender promptly
to
the Trust any records which it maintains for Trust upon request by the Trust.
Manager
will oversee the computation of the net asset value and the net income of each
Fund as described in the currently effective registration statement of the
Trust
under the Securities Act of 1933, as amended, and the 1940 Act and any
supplements thereto ("Registration Statement") or as more frequently requested
by the Board.
Further
Duties. In all matters relating to the performance of this Contract, Manager
will act in conformity with the Agreement and Declaration of Trust, By-Laws
and
Registration Statement of the Trust and with the instructions and directions
of
the Board and will comply with the requirements of the 1940 Act, the rules
thereunder, and all other applicable federal and state laws and regulations.
Delegation
of Manager's Duties as Investment Manager. With respect to the Trust and each
Fund, Manager may enter into one or more contracts ("Sub-Advisory Contract")
with a sub-adviser in which Manager delegates to such sub-adviser the
performance of any or all of the services specified in Paragraph 2 of this
Contract, provided that: (i) each Sub-Advisory Contract imposes on the
sub-adviser bound thereby all the corresponding duties and conditions to which
Manager is subject with respect to the delegated services under Paragraphs
2 and
3 of this Contract; (ii) each Sub-Advisory Contract meets all requirements
of
the 1940 Act and rules thereunder, and (iii) Manager shall not enter into a
Sub-Advisory Contract unless it is approved by the Board prior to
implementation.
Services
Not Exclusive. The services furnished by Manager hereunder are not to be deemed
exclusive and Manager shall be free to furnish similar services to others so
long as its services under this Contract are not impaired thereby. Nothing
in
this Contract shall limit or restrict the right of any director, officer or
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employee
of Manager, who may also be a Trustee, officer or employee, of the Trust, 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
nature or a dissimilar nature.
Expenses.
During
the term of this Contract, each Fund will bear all expenses, not specifically
assumed by Manager.
Expenses
borne by each Fund will include but not be limited to the following: (i) all
direct charges relating to the purchase and sale of portfolio securities,
including the cost (including brokerage commissions, if any) of securities
purchased or sold by the Fund and any losses incurred in connection therewith;
(ii) fees payable to and expenses incurred on behalf of the Fund by Manager
under this Contract; (iii) fees, and other compensation and expenses of the
Sub-Advisors pursuant to Sub-Advisory Contracts approved by the Trust; (iv)
investment consulting fees and related costs; (v) expenses of organizing the
Trust and the Fund; (vi) expenses of preparing and filing reports and other
documents with governmental and regulatory agencies; (vii) filing fees and
expenses relating to the registration and qualification of the Fund's shares
and
the Trust under federal and/or state securities laws and maintaining such
registrations and qualifications; (viii) costs incurred in connection with
the
issuance, sale or repurchase of the Fund's shares of beneficial interest; (ix)
fees and salaries payable to the Trust's Trustees who are not parties to this
Contract or interested persons of any such party ("Independent Trustees");
(x)
all expenses incurred in connection with the Independent Trustees' services,
including travel expenses; (xi) taxes (including any income or franchise taxes)
and governmental fees; (xii) costs of any liability, uncollectible items of
deposit and other insurance and fidelity bonds; (xiii) any costs, expenses
or
losses arising out of a liability of or claim for damages or other relief
asserted against the Trust or Fund for violation of any law; (xiv) interest
charges; (xv) legal, accounting and auditing expenses, including legal fees
of
special counsel for the Independent Trustees; (xvi) charges of custodians,
transfer agents, pricing agents and other agents; (xvii) expenses of disbursing
dividends and distributions; (xviii) expenses of setting in type, printing
and
mailing reports, notices and proxy materials for existing shareholders; (xix)
any extraordinary expenses (including fees and disbursements of counsel, costs
of actions, suits or proceedings to which the Trust is a party and the expenses
the Trust may incur as a result of its legal obligation to provide
indemnification to its officers, Trustees, employees and agents) incurred by
the
Trust or Fund; (xx) fees, voluntary assessments and other expenses incurred
in
connection with membership in investment company organizations; (xxi) costs
of
mailing and tabulating proxies and costs of meetings of shareholders, the Board
and any committees thereof; (xxii) the cost of investment company literature
and
other publications provided by the Trust to its Trustees and officers; and
(xxiii) costs of mailing, stationery and communications equipment.
Manager
will assume the cost of any compensation for services provided to the Trust
received by the officers of the Trust and by the Interested Trustees.
The
payment or assumption by Manager of any expense of the Trust or a Fund that
Manager is not required by this Contract to pay or assume shall not obligate
Manager to pay or assume the same or any similar expense of the Trust or a
Fund
on any subsequent occasion.
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Compensation.
For
the
services provided to each Fund under this Contract, each Fund shall pay the
Manager an annual fee, payable monthly, based upon the Fund's average daily
assets as set forth in Appendix A. Such compensation shall be paid solely from
the assets of the Fund.
For
the
services provided and the expenses assumed pursuant to this Contract with
respect to any other Fund hereafter established, the Fund will pay to the
Manager from its assets a fee in an amount to be agreed upon in a written fee
agreement ("Fee Agreement") executed by the Trust on behalf of such Fund and
by
the Manager. All such Fee Agreements shall provide that they are subject to
all
terms and conditions of this Contract.
The
fee
shall be computed daily and paid monthly to Manager on or before the last
business day of the next succeeding calendar month.
If
this
Contract becomes effective or terminates before the end of any month, the fee
for the period from the effective date to the end of the month or from the
beginning of such month to the date of termination, as the case may be, shall
be
prorated according to the proportion which such period bears to the full month
in which such effectiveness or termination occurs.
Limitation
of Liability of Manager and Indemnification. Manager and its delegates,
including any Sub-Adviser to any Fund or the Trust, shall not be liable and
the
Trust shall indemnify Manager and its directors, officers and employees, for
any
costs or liabilities arising from any error of judgment or mistake of law or
any
loss suffered by any Fund, the Trust or any of its shareholders, in connection
with the matters to which this Contract relates except a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of Manager in
the
performance by Manager of its duties or from reckless disregard by Manager
of
its obligations and duties under this Contract. Any person, even though also
an
officer, partner, employee, or agent of Manager, who may be or become an
officer, Trustee, employee or agent of the Trust shall be deemed, when rendering
services to any Fund or the Trust or acting with respect to any business of
such
Fund or the Trust, to be rendering such service to or acting solely for the
Fund
or the Trust and not as an officer, partner, employee, or agent or one under
the
control or direction of Manager even though paid by it.
Duration
and Termination.
This
Contract shall become effective upon the date hereabove written, provided that
this Contract shall not take effect with respect to the any Fund unless it
has
first been approved (i) by a vote of a majority of the Independent Trustees,
cast in person at a meeting called for the purpose of voting on such approval,
and (ii) by vote of a majority of that Fund's outstanding voting securities.
Unless
sooner terminated as provided herein, this Contract shall continue in effect
for
two years from the above written date. Thereafter, if not terminated, with
respect to any given Fund this Contract shall continue automatically for
successive annual periods, provided that such continuance is specifically
approved at least annually (i) by a vote of a majority of the Independent
Trustees, cast in person at a meeting called for the purpose voting on such
approval, and (ii) by the Board or by vote of a majority of the outstanding
voting securities of such Fund.
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Notwithstanding
the foregoing, with respect to the Trust this Contract 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 outstanding voting securities of such Fund on sixty days'
written notice to Manager or by Manager at any time, without the payment of
any
penalty, on sixty days' written notice to the Trust. Termination of this
Contract with respect to any given Fund shall not affect the continued
effectiveness of the Contract with respect to any other Fund. This Contract
will
automatically terminate in the event of its assignment.
Amendment
of this Contract. No provision of this Contract 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, and no amendment of this Contract shall be effective
until approved by vote of a majority of such Fund's outstanding voting
securities, when required by the 1940 Act.
Governing
Law. This Contract shall be construed in accordance with the laws of the State
of Delaware (without regard to Delaware conflict or choice of law provisions)
and the 1940 Act. To the extent that the applicable laws of the State of
Delaware conflict with the applicable provisions of the 1940 Act, the latter
shall control.
License
Agreement. The Trust shall have the non-exclusive right to use the name
"Hillview" to designate any current or future Fund only so long as Hillview
Capital Advisors, LLC serves as investment manager or adviser to the Trust
with
respect to such Fund.
Limitation
of Shareholder Liability. It is expressly agreed that the obligations of the
Trust hereunder shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents or employees of the Trust personally, but shall
only
bind the assets and property of the Trust, as provided in the Trust's Agreement
and Declaration of Trust. The execution and delivery of this Contract have
been
authorized by the Trustees of the Trust and shareholders of the Trust, and
this
Contract has been executed and delivered by an authorized officer of the Trust
acting as such; neither such authorization by such Trustees and shareholders
nor
such execution and delivery by such officer shall be deemed to have been made
by
any of them individually or to impose any liability on any of them personally,
but shall bind only the assets and property of the Trust, as provided in the
Trust's Agreement and Declaration of Trust.
Miscellaneous.
The captions in this Contract 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 Contract shall be held or
made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Contract shall not be affected thereby. This Contract shall be binding upon
and
shall inure to the benefit of the parties hereto and their respective
successors. As used in this Contract, the terms "majority of the outstanding
voting securities," "interested person," "assignment," "broker," "dealer,"
"investment adviser," "national securities exchange," "net assets,"
"prospectus," "sale," "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 made less restrictive by a rule, regulation or order of the
Securities and Exchange Commission, whether of special or
5
general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
6
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.
By: /s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: President
and Trustee
HILLVIEW
CAPITAL ADVISORS, LLC
By: /s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Executive Officer
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APPENDIX
A
TO
BETWEEN
AND
HILLVIEW
CAPITAL
ADVISORS, LLC
Each
Fund
shall pay the Manager a fee, computed daily and paid monthly, at the annual
rate
of 0.25% of the Fund's average daily assets.
Dated:
August 12, 2005
