EXHIBIT EX-99.D.10
INTERIM INVESTMENT MANAGEMENT CONTRACT
BETWEEN
HILLVIEW INVESTMENT TRUST II
AND
HILLVIEW CAPITAL ADVISORS, LLC
Contract made as of March 31, 2005, between Hillview Investment Trust II, a
Delaware business trust ("Trust"), on behalf of Hillview Alpha Fund and Hillview
International Alpha (each a "Fund" and collectively the "Funds"), and Hillview
Capital Advisors, LLC, a Delaware limited liability company (the "Adviser").
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 currently consists of three series - Hillview Alpha Fund,
Hillview International Alpha Fund and REMS Real Estate Value-Opportunity Fund;
and
WHEREAS the Trust hereafter may establish additional series of its shares of
beneficial interest; and
WHEREAS the Trust desires to retain Adviser as investment manager to furnish
certain investment advisory and portfolio management services to the Trust and
the Funds set forth on Appendix A, and Adviser 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:
1. Appointment. The Trust hereby appoints Adviser as investment manager for the
period and on the terms set forth in this Contract. Adviser accepts such
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
2. Duties as Investment Manager.
(a) Subject to the supervision of the Trust's Board of Trustees ("Board"),
Adviser 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. Adviser 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 Adviser may delegate to one or more sub-advisers, 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.
(b) Adviser 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 Adviser 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 Adviser's other clients with research, analysis,
advice and similar services. Adviser may pay to brokers and dealers, in return
for research and analysis, a higher commission or spread than may be charged by
other brokers and dealers, subject to Adviser'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 Adviser 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
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purchased from or sold to Adviser 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 Adviser
simultaneously places orders to purchase or sell the same security on behalf of
a Fund and one or more other accounts advised by 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 Trust recognizes that in some cases this
procedure may adversely affect the results obtained for the Fund.
(c) Adviser 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, Adviser
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.
(d) Adviser 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.
3. Further Duties. In all matters relating to the performance of this Contract,
Adviser 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.
4. Delegation of Adviser's Duties as Investment Manager. With respect to the
Trust and each Fund, Adviser may enter into one or more contracts ("Sub-Advisory
Contract") with sub-advisers in which Adviser delegates to such sub-advisers 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
Adviser 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) Adviser shall not enter into a
Sub-Advisory Contract unless it is approved by the Board prior to
implementation.
5. Services Not Exclusive. The services furnished by Adviser hereunder are not
to be deemed exclusive and Adviser 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 employee of Adviser, 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.
6. Expenses.
(a) During the term of this Contract, each Fund will bear all expenses, not
specifically assumed by Adviser.
(b) 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
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losses incurred in connection therewith; (ii) fees payable to and expenses
incurred on behalf of the Fund by Adviser 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.
(c) Adviser 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.
(d) The payment or assumption by Adviser of any expense of the Trust or a Fund
that Adviser is not required by this Contract to pay or assume shall not
obligate Adviser to pay or assume the same or any similar expense of the Trust
or a Fund on any subsequent occasion.
7. Compensation.
(a) All compensation earned by the Adviser under this Contract shall be held in
an interest-bearing escrow account with the custodian of the Funds' assets or a
bank. If the majority of the a Fund's outstanding voting securities approve a
new investment management contract with the Adviser by the end of the 150 day
period that this Contract is effective, the Adviser will be paid the amount in
the escrow account (including interest earned). If a majority of a Fund's
outstanding voting securities do not approve a new investment management
contract with the Adviser, the Adviser will be paid, out of the escrow account
the lesser of (i) Adviser's costs incurred in performing this Contract (plus
interest earned on that amount while in escrow) or (ii) the total amount in the
escrow account (plus interest earned).
(b) Subject to the provisions above, the compensation of the Adviser for its
services provided to each Fund listed in Appendix A under this Contract shall be
an annual fee, payable monthly, based upon the Fund's average daily assets as
set forth in Appendix B. Such compensation shall be paid solely from the assets
of the Fund.
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(c) The fee shall be computed daily and paid monthly to Adviser on or before the
last business day of the next succeeding calendar month.
(d) 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.
8. Limitation of Liability of Adviser and Indemnification. Adviser and its
delegates, including any sub-adviser to any Fund or the Trust, shall not be
liable and the Trust shall indemnify Adviser 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 Adviser in the performance by Adviser of its duties or from
reckless disregard by Adviser of its obligations and duties under this Contract.
Any person, even though also an officer, partner, employee, or agent of Adviser,
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 Adviser even though
paid by it.
9. Duration and Termination.
(a) This Contract shall become effective upon the date first above written,
provided that this Contract has been approved by a vote of a majority of those
Trustees of the Trust who are not parties of this Agreement or interested
persons of any such party cast in person at a meeting called for the purpose of
voting such approval.
(b) Unless sooner terminated as provided herein, this Contract shall continue in
effect for a period of 150 days after the day and year first above written.
(c) 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 ten days' written notice to Adviser or by Adviser at any time, without
the payment of any penalty, on ten 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.
10. 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.
11. 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.
12. 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.
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13. 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.
14. 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 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.
HILLVIEW INVESTMENT TRUST II
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President and Trustee
HILLVIEW CAPITAL ADVISORS, LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
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APPENDIX A
TO
INVESTMENT MANAGEMENT CONTRACT
BETWEEN
HILLVIEW INVESTMENT TRUST II
AND
HILLVIEW CAPITAL ADVISORS, LLC
Hillview Alpha Fund
Hillview International Alpha Fund
0
XXXXXXXX X
TO
INVESTMENT MANAGEMENT CONTRACT
BETWEEN
HILLVIEW INVESTMENT TRUST II
AND
HILLVIEW CAPITAL ADVISORS, LLC
Each Fund shall pay the Adviser a fee, computed daily and paid monthly, at the
annual rate of 0.25% of the Fund's average daily assets.
Dated: March 31, 2005
