INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT
made as of the
____ day of ___ 200_, by and among Ashfield Capital Partners, LLC, a
Delaware limited liability company located at 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxx
Xxxxxxxxx, XX, 00000
(the
“Sub-Adviser”), and
FundQuest Incorporated, a Delaware corporation located at 000 Xxxx Xxxxxx,
Xxxxxx, XX 00000 (the “Manager”).
WHEREAS,
the
Manager and the
Sub-Adviser are each registered as investment advisers under the Investment
Advisers Act of 1940; and
WHEREAS,
the
Advisors Series
Trust, a Delaware statutory Trust located at 000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 (the “Trust”) is engaged in business
as an open-end investment company with one or more series of shares and is
registered under the Investment Company Act of 1940, as amended (the “1940
Act”); and
WHEREAS,
the Trust has
retained the Manager to perform investment advisory services for the certain
funds within the Trust (the “Funds”) under the terms of an investment advisory
agreement, dated _____________, between the Manager and the Trust on behalf
of
the Funds (the “Management
Agreement”); and
WHEREAS,
the Manager, acting
pursuant to the Management Agreement, wishes to retain
the Sub-Adviser, and the Trust’s Board has approved the retention of
the Sub-Adviser, to provide investment advisory services to a portion of the
assets as set forth in writing by the Manager and agreed to in writing by the
Sub-Adviser (the “Allocated
Portion”) the Funds) listed on Schedule A (as it may be amended from time
to time);
WHEREAS,
each Fund listed in
Schedule A is a separate series of the Trust having separate assets and
liabilities; and
WHEREAS,
THE Trust and the
Fund(s) are third party beneficiaries of such arrangements;
NOW,
THEREFORE, WITNESSETH:
That the parties, which shall include the Trust on behalf of the Fund(s) for
the
purposes of the indemnification provisions of section 6, hereby agree as
follows:
|
1.
|
APPOINTMENT
OF
SUB-ADVISER.
|
|
(a)
|
Acceptance. The
Sub-Adviser is hereby appointed and the Sub-Adviser hereby accepts
the
appointment, on the terms herein set forth and for the compensation
herein
provided, to act as investment adviser to the Fund’s
assets.
|
|
(b)
|
Independent
Contractor. The Sub-Adviser shall for all purposes
herein be deemed to be an independent contractor and shall, unless
otherwise expressly provided or authorized, have no authority to
act for
or be deemed an agent of the Fund.
|
|
(c)
|
The
Sub-Adviser’s
Representations. The Sub-Adviser represents, warrants
and agrees that it has all requisite power and authority to enter
into and
perform its obligations under this Agreement, and has taken all necessary
corporate action to authorize its execution, delivery and performance
of
this Agreement. The Sub-Adviser represents, warrants and agrees
that it is registered as an adviser under the Investment Advisers
Act of
1940, as amended.
|
|
(e)
|
Plenary
authority of
the Board of Trustees. The Sub-Adviser and Manager both
acknowledge that the Fund is a mutual fund that operates as a series
of
the Trust under the authority of the Board of
Trustees.
|
|
2.
|
PROVISION
OF INVESTMENT
SUB-ADVISORY SERVICES.
|
The
Sub-Adviser will provide for the Fund a continuing investment program consistent
with the investment policies, objectives and restrictions of the Fund, as
established by the Fund and the Manager and provided to the Sub-Adviser in
writing. The current policies, objectives and restrictions are
attached hereto as Exhibit
A. From time to time, the Manager or the Fund may provide the
Sub-Adviser with written copies of additional or amended investment policies,
guidelines and restrictions, which shall become effective at such time as agreed
upon in writing by both parties. The Sub-Adviser will manage the
investment and reinvestment of the assets in the Fund, and perform the functions
set forth below, subject to the overall supervision, direction, control and
review of the Manager, consistent with the applicable investment policies,
guidelines and restrictions, or any directions or instructions delivered to
the
Sub-Adviser in writing by the Manager or the Fund from time to time, and further
subject to the plenary authority of the Fund’s Board of
Trustees. Consistent with Exhibit A, or unless
otherwise directed in writing in advance by the Manager or the Fund, the
Sub-Adviser shall have full discretionary authority to manage the investment
of
the assets in the Fund, including the authority to purchase, sell, cover open
positions, and generally to deal in securities, financial and commodity futures
contracts, options, short-term investment vehicles and other property comprising
or relating to the Fund, and to have a portion of the Fund uninvested.
In
addition, the Sub-Adviser will, at its own expense:
|
(a)
|
advise
the Manager and the Fund in connection with investment policy decisions
to
be made by it regarding the Fund and, as soon as practicable upon
request,
furnish the Manager and the Fund with research, economic and statistical
data in connection with the Fund’s investments and investment
policies;
|
2
|
(b)
|
submit
such reports and information as the Manager or the Fund may reasonably
request to assist the Fund’s custodian (the “Custodian”) in its
determination of the market value of securities held in the
Fund;
|
|
(c)
|
place
orders for purchases and sales of portfolio investments for the Fund
(it
being understood that brokerage commissions and other transaction
costs
associated with such orders shall be expenses of the
Fund);
|
|
(d)
|
give
instructions to the Custodian concerning the delivery of securities
and
transfer of cash for the Fund;
|
|
(e)
|
maintain
and preserve the records relating to its activities hereunder required
by
the Investment Company Act of 1940, as amended (the “1940 Act”) to be
maintained and preserved by the Manager, to the extent not maintained
by
the Manager or another agent of the Fund, and the Sub-Adviser hereby
agrees that all records which it maintains for the Fund are the property
of the Fund and further agrees to surrender promptly to the Fund
copies of
any such records upon the Fund’s
request;
|
|
(f)
|
as
soon as practicable after the close of business each day but no later
than
11:00 a.m. Eastern time the following business day, provide the Custodian
with copies of trade tickets for each transaction effected for the
Fund,
provide copies to the Manager and the Fund upon request, and promptly
forward to the Custodian copies of all brokerage or dealer
confirmations;
|
|
(g)
|
as
soon as practicable following the end of each calendar month, provide
the
Manager and the Fund with written statements showing all transactions
effected for the Fund during the month, a summary listing all investments
held in the Fund as of the last day of the month, and such other
information as the Manager or the Fund may reasonably request in
connection with any accounting or marketing services that the Manager
provides for the Fund. The Manager and the Fund acknowledges
that Sub-Adviser and Custodian may use different pricing vendors,
which
may result in valuation
discrepancies;
|
|
(h)
|
absent
specific instructions to the contrary provided to it by the Manager
or the
Fund, and subject to its receipt of all necessary voting materials,
vote
all proxies with respect to investments of the Fund in accordance
with the
Sub-Adviser’s proxy voting policy as most recently provided to the Manager
and approved by the Trust; The Manager hereby delegates to the
Sub-Adviser the Manager’s discretionary authority to exercise voting
rights with respect to the securities and investments of the Allocated
Portion of the Fund. The Sub-Adviser’s proxy voting policies shall comply
with any rules or regulations promulgated by the Securities and Exchange
Commission (“SEC”). The
Sub-Adviser shall maintain and preserve a record, in an easily-accessible
place for a period of not less than three (3) years (or longer, if
required by law), of the Sub-Adviser’s voting procedures, of the
Sub-Adviser’s actual votes, and such other information required for the
Fund to comply with any rules or regulations promulgated by the
SEC. The Sub-Adviser shall supply updates of this record to the
Manager or any authorized representative of the Manager, or to the
Fund on
a quarterly basis (or more frequently, if required by law). The
Sub-Adviser shall provide the Manager and the Fund with information
regarding the policies and procedures that the Sub-Adviser uses to
determine how to vote proxies relating to the Allocated
Portion.
|
3
|
(i)
|
To
the extent reasonably requested by the Trust, use its best efforts
to
assist the Chief Compliance Officer of the Trust in respect of Rule
38a-1
under the 1940 Act, including, without limitation, providing the
Chief
Compliance Officer of the Trust with (a) current copies of the compliance
policies and procedures of the Sub-Adviser in effect from time to
time
(including prompt notice of any material changes thereto), (b) a
summary
of such policies and procedures in connection with the annual review
thereof by the Trust required under Rule 38a-1, and (c) upon request,
a
certificate of the chief compliance officer of the Sub-Adviser to
the
effect that the policies and procedures of the Sub-Adviser are reasonably
designed to prevent violation of the Federal Securities Laws (as
such term
is defined in Rule 38a-1); and
|
|
(j)
|
Except
as permitted by the Trust’s policies and procedures or as required by
applicable law, not disclose and treat confidentially all information
in
respect of the portfolio investments of the Fund, including, without
limitation, the identification and market value or other pricing
information of any and all portfolio securities or other financial
instruments held by the Fund, and any and all trades of portfolio
securities or other transactions effected for the Fund (including
pending
and proposed trades); provided, however, that the Sub-Adviser shall
not be
prohibited from disclosing any information relating to the portfolio
investments of the Fund, provided that such information is dated
at least
15 days from the last calendar quarter, to any prospective client
of the
Sub-Adviser that has expressed interest in investing pursuant to
a
strategy similar to that of the
Fund.
|
The
Fund
or its agent will provide timely information to the Sub-Adviser regarding such
matters as inflows to and outflows from the Fund and the cash requirements
of,
and cash available for investment in, the Fund. The Fund or its agent
will timely provide the Sub-Adviser with copies of monthly accounting statements
for the Fund, and such other information as may be reasonably necessary or
appropriate in order for the Sub-Adviser to perform its responsibilities
hereunder.
Manager
will be responsible for all class actions and lawsuits involving the Fund or
securities held, or formerly held, in the Fund. Sub-Adviser is not
required to take any action or to render investment-related advice with respect
to lawsuits involving the Fund, including those involving securities presently
or formerly held in the Fund, or the issuers thereof, including actions
involving bankruptcy. In the case of notices of class action suits
received by Sub-Adviser involving issuers presently or formerly held in the
Fund, Sub-Adviser shall promptly forward such notices to Manager and, with
the
consent of the Manager, may provide information about the Fund to third parties
for purposes of participating in any settlements relating to such class
actions.
4
|
3.
|
ALLOCATION
OF
EXPENSES.
|
Each
party to this Agreement shall bear the costs and expenses of performing its
obligations hereunder. The Sub-Adviser shall not be responsible for
any expenses of the Fund unless specifically agreed to hereunder. In
this regard, the Manager specifically agrees that the Fund shall assume the
expense of the costs of securities and related transactions including, but
not
limited to:
|
(a)
|
brokerage
commissions for transactions in the portfolio investments of the
Fund and
similar fees and charges for the acquisition, disposition, lending
or
borrowing of such portfolio
investments;
|
|
(b)
|
custodian
fees and expenses;
|
|
(c)
|
all
taxes, including issuance and transfer taxes, and reserves for taxes
payable by the Fund to federal, state or other government agencies;
and
|
|
(d)
|
interest
payable on any Fund borrowings.
|
The
Sub-Adviser specifically agrees that with respect to the operation of the Fund,
the Sub-Adviser shall be responsible for (i)providing the personnel,
office space and equipment reasonably necessary to provide its sub-advisory
services to the Fund hereunder. , and (ii) the costs of any special Board of
Trustees meetings or shareholder meetings convened for the primary benefit
of
the Sub-Adviser.
If
the Manager has agreed to limit the operating expenses of the Fund,
the Manager shall also be solely responsible on a monthly basis for any
operating expenses that exceed the agreed upon expense limit (such that the
Sub-Adviser’s fee hereunder will not be reduced). Nothing in this
Agreement shall alter the allocation of expenses and costs agreed upon between
the Fund and the Manager in the Management Agreement or any other agreement
to
which they are parties.
|
4.
|
SUB-ADVISORY
FEES.
|
For
all
of the services rendered with respect to the Fund as herein provided, the
Manager shall pay to the Sub-Adviser a fee (for the payment of which the Fund
shall have no obligation or liability), based on the Current Net Assets (as
defined below) of the Fund, as set forth in Schedule A attached hereto and
made
a part hereof. Manager shall provide the Sub-Adviser with a statement
of all fees owed hereunder no later than the third business day following the
end of each month. Such fee shall be accrued daily and payable monthly, as
soon
as practicable after the last day of each calendar month. In the case
of termination of this Agreement with respect to the Fund during any calendar
month, the fee with respect to such Portfolio accrued to, but excluding, the
date of termination shall be paid promptly following such
termination. For purposes of computing the amount of advisory fee
accrued for any day, “Current Net Assets” shall mean the Fund’s average daily
net assets, managed by the Sub-Adviser, as of the most recent preceding day
for
which the Fund’s net assets were computed.
5
|
5.
|
PORTFOLIO
TRANSACTIONS.
|
In
connection with the investment and reinvestment of the assets of the Fund,
the
Sub-Adviser is authorized to select the brokers or dealers that will execute
purchase and sale transactions for the Fund’s portfolio (the “Portfolio”) and to use all
reasonable efforts to obtain the best execution with respect to all such
purchases and sales of portfolio securities for said Portfolio. In
attempting to achieve best execution, the Sub-Adviser may take into
consideration such items including, but not limited to, the following: 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 Fund
on a
continuing basis. The Sub-Adviser shall maintain records adequate to
demonstrate compliance with the requirements of this section. Subject
to the policies as the Board of Trustees of the Fund may determine (and provided
in advance in writing to the Sub-Adviser) and consistent with Section 28(e)
of
the Securities Exchange Act of 1934, as amended, the Sub-Adviser shall have
the
right to follow a policy of selecting brokers who furnish brokerage and research
services to the Fund or to the Sub-Adviser, and who charge a higher commission
rate to the Fund than may result when allocating brokerage solely on the basis
of seeking the best execution. The Sub-Adviser shall determine in
good faith that such higher cost was reasonable in relation to the value of
the
brokerage and research services provided to the Sub-Adviser on behalf of the
Fund and other discretionary clients of the Sub-Adviser and shall make
reasonable reports regarding such determination and description of the products
and services obtained if so requested by the Fund. Manager and the
Fund understand that the brokerage commissions or transaction costs in such
transactions may be higher than those which the Sub-Adviser could obtain from
another broker or dealer.
The
Manager and the Fund authorize and empower the Sub-Adviser to direct the
Custodian to open and maintain brokerage accounts for securities and other
property (all such accounts hereinafter called “brokerage accounts”) for and
in the name of the Fund and to execute for the Fund as its agent and
attorney-in-fact standard customer agreements with such broker or brokers as
the
Sub-Adviser shall select as provided above. The Sub-Adviser may,
using such of the securities and other property in the Fund as the Sub-Adviser
deems necessary or desirable, direct the Custodian to deposit for the Fund
original and maintenance brokerage and margin deposits and otherwise direct
payments of cash, cash equivalents and securities and other property into such
brokerage accounts and to such brokers as the Sub-Adviser deems desirable or
appropriate. The Sub-Adviser shall cause all securities and other
property purchased or sold for the Fund to be settled at the place of business
of the Custodian or as the Custodian shall direct. All securities and
other property of the Fund shall remain in the direct or indirect custody of
the
Custodian. The Sub-Adviser shall notify the Custodian as soon as
practicable of the necessary information to enable the Custodian to effect
such
purchases and sales.
The
Sub-Adviser further shall have the authority to instruct the Custodian (i)
to
pay cash for securities and other property delivered to the Custodian for the
Fund, (ii) to deliver securities and other property against payment for the
Fund, and (iii) to transfer assets and funds to such brokerage accounts as
the
Sub-Adviser may designate, all consistent with the powers, authorities and
limitations set forth herein. The Sub-Adviser shall not have
authority to cause the Custodian to deliver securities and other property,
or
pay cash to the Sub-Adviser except as expressly provided herein.
6
|
6.
|
LIABILITY;
STANDARD OF CARE.
|
The
Sub-Adviser, its affiliates, agents and employees, shall be indemnified by
the
Manager against all liabilities, losses or claims (including reasonable expenses
arising out of defending such liabilities, losses or claims):
|
(a)
|
arising
from Fund’s or the Manager’s directions to the Sub-Adviser or Custodian,
or brokers, dealers or others with respect to the making, retention
or
sale of any investment or reinvestment
hereunder;
|
|
(b)
|
arising
from the acts or omissions of the Manager, the Custodian or the Fund,
their respective affiliates, agents or employees;
or
|
|
|
(c)
|
arising
from or in connection with the Manager’s material breach of this Agreement
or as a result of the gross negligence, willful misconduct or lack
of good
faith of the Manager or Fund or violation of applicable law by the
Manager
or Fund.
|
except
for any such liability or loss which is due to the gross negligence, willful
misconduct, or lack of good faith of the Sub-Adviser, its affiliates, agents
and
employees, or the Sub-Adviser’s reckless disregard of its duties and
obligations. The Sub-Adviser shall also be without liability
hereunder for any action taken or omitted by it in good faith and without gross
negligence. The Sub-Adviser shall not have any liability for any act,
conduct or omission of any broker or third party selected by Sub-Adviser to
provide services to the Fund provided such broker or third party was selected
by
Sub-Adviser in accordance with the provisions of this Agreement.
The
Sub-Adviser shall comply with all applicable laws and regulations in the
discharge of its duties under this Agreement; shall (as provided in Section
2
above) comply with the investment policies, guidelines and restrictions of
the
Fund; shall act at all times in the best interests of the
Fund. However, the Sub-Adviser shall not be obligated to perform any
service not described in this Agreement, and shall not be deemed by virtue
of
this Agreement to have made any representation or warranty that any level of
investment performance or level of investment results will be achieved.
Except
as otherwise provided in this Agreement, each party to this Agreement (as an
“Indemnifying Party”), including the Trust on behalf of the Fund, 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 expense and reasonable counsel fees incurred in connection
therewith) arising out of the Indemnifying Party’s performance or
non-performance of any duties under this Agreement, provided, however, that
indemnification shall not be paid hereunder with respect to any matter to the
extent to which the loss, liability, claim, damage, or expense was determined
by
a court of competent jurisdiction to have been caused by the Indemnified Party’s
willful misfeasance, bad faith, or negligence in the performance of duties
hereunder or reckless disregard of obligations and duties under this Agreement,
and provided further, however, that the Sub-Adviser shall only be required
to
indemnify and hold harmless an Indemnified Party to the extent the loss,
liability, claim, damage, or expense of such Indemnified Party was attributable
to the bad faith or gross negligence of the Sub-Adviser’s obligations or duties
hereunder.
7
If
indemnification is to be sought hereunder, then the Indemnified Party shall
promptly notify the Indemnifying Party of the assertion of any claim or the
commencement of any action or proceeding in respect thereof; provided, however,
that the failure so to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability that it may otherwise have to the
Indemnified Party provided such failure shall not affect in a material adverse
manner the position of the Indemnifying Party or the Indemnified Party with
respect to such claim. Following such notification, the Indemnifying Party
may
elect in writing to assume the defense of such action or proceeding and, upon
such election, it shall not be liable for any legal costs incurred by the
Indemnified Party (other than reasonable costs of investigation previously
incurred) in connection therewith, unless (i) the Indemnifying Party has failed
to provide counsel reasonably satisfactory to the Indemnified Party in a timely
manner or (ii) counsel which has been provided by the Indemnifying Party
reasonably determines that its representation of the Indemnified Party would
present it with a conflict of interest. Notwithstanding the foregoing, the
Indemnified Party shall be entitled to employ separate counsel at its own
expense and, in such event, the Indemnified Party may participate in such
defense as it deems necessary.
The
provisions of this paragraph 6 shall not apply in any action where the
Indemnified Party is the party adverse, or one of the parties adverse, to the
other party.
|
7.
|
TERM
AND TERMINATION OF THIS AGREEMENT; NO
ASSIGNMENT
|
(a) This
Agreement shall go into effect as to the Fund on the date set forth above and
shall, unless terminated as hereinafter provided, continue in effect for a
period of two years from the date of approval by shareholders of the Fund at
a
meeting called for the purpose of such approval. 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. The terms “majority of the outstanding voting securities” and
“interested persons” shall have the meanings as set forth in the 1940
Act;
(b) 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, by the
Manager, or by vote of a majority of the outstanding voting securities of a
Fund
without the payment of any penalties, upon sixty (60) days’ written notice to
the Sub-Adviser, and by the Sub-Adviser at any time without prepayment of any
penalty upon sixty (60) days’ written notice to the Fund and the
Manager. In the event of a termination, each party shall cooperate in
the orderly transfer of the Fund’s affairs and, at the request of the Board of
Trustees or the Manager, transfer any and all books and records of the Fund
maintained by the Sub-Adviser on behalf of the Fund; and
(c) This
Agreement shall terminate automatically in the event of any assignment thereof,
as defined in the 1940 Act. This Agreement will also terminate in the
event that the Management Agreement is terminated.
8
|
8.
|
SERVICES
NOT EXCLUSIVE
|
The
services of the Sub-Adviser to the Manager and the Fund are not to be deemed
exclusive and it shall be free to render similar services to others so long
as
its services hereunder are not impaired thereby. It is specifically
understood that directors, officers and employees of the Sub-Adviser and of
its
subsidiaries and affiliates may continue to engage in providing portfolio
management services and advice to other investment advisory
clients. The Manager agrees that Sub-Adviser may give advice and take
action in the performance of its duties with respect to any of its other clients
which may differ from or be similar to advice given or the timing or nature
of
action taken with respect to the Fund. Nothing in this Agreement
shall be deemed to require Sub-Adviser, its principals, affiliates, agents
or
employees to purchase or sell for the Fund any security which it or they may
purchase or sell for its or their own account or for the account of any other
client.
|
9.
|
AGGREGATION
OF ORDERS
|
Nothing
in this Agreement, shall preclude the combination of orders for the sale or
purchase of portfolio securities of the Fund with those for other accounts
managed by the Sub-Adviser or its affiliates, if orders are allocated in a
manner deemed equitable by the Sub-Adviser among the accounts and at a price
approximately averaged. The Sub-Adviser agrees that (i) it will not
aggregate transactions unless aggregation is consistent with its duty to seek
best execution; (ii) except as contemplated below, no account will be favored
over any other account; each account participating in an aggregated order will
participate at the average share price for all transactions in that security
or
a given business day, with transaction costs shared pro-rata based on each
account’s participation in the transaction; and (iii) allocations will be made
in accordance with the Sub-Adviser’s compliance policies and procedures..
|
10.
|
NO
SHORTING; NO BORROWING
|
The
Sub-Adviser agrees that neither it nor any of its 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 or employees of
the
Sub-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. The Manager agrees that neither it nor any of its officers or
employees shall borrow from the Fund or pledge or use the Fund's assets in
connection with any borrowing not directly for the Fund's benefit.
|
11.
|
AMENDMENT
|
No
provision of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by all parties.
|
12.
|
NONPUBLIC
PERSONAL INFORMATION.
|
Notwithstanding
any provision herein to the contrary, the Sub-Adviser hereto agrees on behalf
of
itself and its directors, trustees, shareholders, officers, and employees (1)
to
treat confidentially and as proprietary information of the Fund (a) all records
and other information relative to the Fund’s 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 or as required
by applicable law or a regulatory authority having jurisdiction, 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
Sub-Adviser. Such written approval shall not be unreasonably withheld
by the Trust and may not be withheld where the Sub-Adviser 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.
9
Notwithstanding
the foregoing, Sub-Adviser may disclose that Manager, the Trust and each Fund
are its clients.
|
13.
|
CERTIFICATIONS;
DISCLOSURE CONTROLS AND PROCEDURES
|
The
Sub-Adviser acknowledges that, in compliance with the Xxxxxxxx-Xxxxx Act of
2002
(the “Xxxxxxxx-Xxxxx
Act”), and the implementing regulations promulgated thereunder, the Trust
and the Fund are required to make certain certifications and have adopted
disclosure controls and procedures. To the extent reasonably requested by the
Trust, the Sub-Adviser agrees to use commercially reasonable efforts to assist
the Trust and the Fund in complying with the Xxxxxxxx-Xxxxx Act and implementing
the Trust’s disclosure controls and procedures. The Sub-Adviser
agrees to inform the Trust of any material development related to the Fund
that
the Sub-Adviser has been informed in writing by the Trust or Manager is relevant
and that the Sub-Adviser reasonably believes to be relevant to the Fund’s
certification obligations under the Xxxxxxxx-Xxxxx
Act. Notwithstanding the foregoing, the Sub-Adviser shall be without
liability hereunder with respect to the Xxxxxxxx-Xxxxx Act.
|
14.
|
REPORTS
AND ACCESS
|
The
Sub-Adviser agrees to supply such information relating to the Sub-Adviser’s
performance of its duties hereunder to the Manager and to permit such compliance
inspections by the Manager or the Fund as shall be reasonably necessary to
permit the administrator to satisfy its legal obligations and respond to the
reasonable requests of the Trust.
|
15.
|
NOTIFICATION
|
The
Sub-Adviser agrees that it will provide prompt notice to the Manager and Fund
about material changes in the employment status of key investment management
personnel involved in the management of the Fund, material changes in the
investment process used to manage the Fund and any changes in senior management,
operations or ownership of the Sub-Adviser’s Firm.
10
|
16.
|
NOTICES
|
Notices
and other communications required or permitted under this Agreement shall be
in
writing, shall be deemed to be effectively delivered when actually received,
and
may be delivered by US mail (first class, postage prepaid), by facsimile
transmission, by hand or by commercial overnight delivery service, addressed
as
follows:
|
MANAGER:
|
FundQuest
Incorporated
000
Xxxx Xxxxxx 00xx
Xx
Xxxxxx
Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attn:
Compliance Officer
|
|
SUB-ADVISER:
|
Ashfield
Capital Partners, LLC
000
Xxxxxxx Xxxxxx, Xxxxx
000
Xxx
Xxxxxxxxx, XX,
00000
Attn:
Compliance Officer
|
|
FUND:
|
On
behalf of ActivePassive Small/Mid-Cap Growth Fund
000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attn:
Secretary
|
|
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.
|
CAPTIONS
|
The
caption in this Agreement are not 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.
|
19.
|
GOVERNING
LAW
|
This
agreement shall be governed by, and construed in accordance with, the laws
of
the state of Delaware without giving effect to the conflict of laws principles
of Delaware or any other jurisdiction; 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, as
amended, and any rules and regulations promulgated thereunder.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the day first
set
forth above.
|
FUNDQUEST
INCORPORATED:
By:
___________________________________
Name:
Title:
|
|
ASHFIELD
CAPITAL PARTNERS, LLC
(Sub-Adviser)
By:
___________________________________
Name:
Title:
|
|
As
a Third Party Beneficiary, and as a party for purposes of
Section 6
|
|
On
behalf of ActivePassive Small/Mid-Cap Growth Fund
By:
___________________________________
Name:
Title:
|
12
EXHIBIT
A
INVESTMENT
GUIDELINES
Investment
Objectives and
Policies
As
described in the Section entitled “ActivePassive Small/Mid Cap Growth Fund” of
the Fund’s current prospectus and the Section entitled “Investment Objectives
and Policies” of the SAI provided by Manager and, in each case as agreed to by
Sub-advisor.
Investment
Restrictions
As
described in the Section entitled “ActivePassive Small/Mid Cap Growth Fund” of
the Fund’s current prospectus and the Section entitled “Investment Restrictions”
of the SAI provided by Manager and, in each case as agreed to by
Sub-advisor.
SCHEDULE
A
FUNDS
AND FEES
|
Series
of Advisors
Series Trust
|
Annual
Fee Rate
|
|
ActivePassive
Small/Mid-Cap Growth Fund
|
45
bps for the first $100m
40
bps thereafter
|
