FORM OF INVESTMENT SUB-ADVISORY AGREEMENT
Exhibit (d)(10)
This Investment Sub-Advisory Agreement (“Agreement”) is made and entered into as of December 17, 2020, by and between Cavalier
Investments, LLC d/b/a Adaptive Investments, a Massachusetts limited liability company (“Advisor”) and Bluestone Capital Management, LLC, a Pennsylvania limited liability company (“Sub-Advisor”), in
relation to the Adaptive Growth Opportunities ETF (the “Fund”), a series of the Starboard Investment Trust, a Delaware statutory trust (the “Trust”).
WHEREAS, the Advisor acts as the investment advisor to the Fund, pursuant to that certain Investment Advisory Agreement, dated December 17, 2020, as amended,
between the Advisor and the Trust with respect to the Fund (“Advisory Agreement”);
WHEREAS, the Trust is an open-end management investment company, registered under the Investment Company Act of 1940, as amended (the “Act”);
WHEREAS, the Trust is authorized to issue separate series, each of which will offer a separate class of shares of beneficial interest, each series having its
own investment objective or objectives, policies, and limitations;
WHEREAS, the Trust currently offers shares in multiple series, may offer shares of additional series in the future, and intends to offer shares of additional
series in the future;
WHEREAS, each of the Advisor and Sub-Advisor is registered as an investment advisor under the Investment Advisers Act of 1940, as amended (“Advisers Act”), and
engages in the business of asset management; and
WHEREAS, the Advisor, subject to the approval of the Board of Trustees of the Trust (“Trustees”), desires to retain the Sub-Advisor to assist the Advisor in
rendering certain investment management services to the Fund, and the Sub-Advisor is willing to render such services;
WHEREAS, the Trustees, including a majority of those Trustees who are not parties to this Agreement or interested persons (as such term is defined in the Act)
of any such party (the “Independent Trustees”), by a vote cast in person at a meeting called for the purpose of voting on such approval have approved this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1. Engagement and Obligations of Sub-Advisor. The Advisor hereby appoints and retains the Sub-Advisor to act as a sub-advisor to the Advisor and to provide the following services for the period and on the terms and
conditions set forth in this agreement.
(a) Services. The Sub-Advisor agrees to perform the following services (the “Services”):
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subject to the general supervision of the Trustees and the Advisor, the Sub-Advisor shall, employing its discretion, manage the investment operations of the portion of the Fund’s portfolio allocated to the Sub-Advisor from time to time by
the Advisor, which may range from 0% to 100% in the Advisor’s sole discretion (the “Allocated Assets”), and the composition of the portfolio of securities and investments (including cash) belonging to the Allocated Assets of the Fund,,
including the purchase, retention, and disposition thereof, in accordance with all applicable laws and regulations, any policies and procedures established by the Trust or the Advisor, and the Fund’s investment objective, policies and
restrictions as stated in the Fund’s then-current prospectus and statement of additional information or any similar offering documents of the Fund (together, the “Prospectus”);
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select brokers and dealers to execute the purchase and/or sale, consistent with the Sub-Advisor's duty to seek "best execution" on behalf of the Fund, of portfolio securities of the Fund;
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provide the Advisor and the Fund with such records concerning the Sub-Advisor’s activities under this Agreement as the Advisor and the Trust may request from time to time or as otherwise required by applicable law; and
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render regular reports to the Advisor and the Trustees concerning the Sub-Advisor’s discharge of the foregoing responsibilities.
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All Services to be furnished by the Sub-Advisor under this Agreement may be furnished through the medium of any directors, officers, or employees of the Sub-Advisor or through such other parties as
the Sub-Advisor may determine from time to time.
(b) Expenses and Personnel. The Sub-Advisor agrees, at its own expense or at the expense of one or more of its affiliates, to render the Services and to provide the office space, furnishings, equipment and personnel
as may be reasonably required to perform the Services on the terms and for the compensation provided herein.
(c) Books and Records. All books and records prepared and maintained by the Sub-Advisor for the Advisor and/or the Fund under this Agreement shall be the property of the Advisor and/or the Fund and, upon reasonable
request therefore, the Sub-Advisor shall surrender to the appropriate party such of the books and records so reasonably requested.
2. Compensation
of the Sub-Advisor. The Advisor will pay to the Sub-Advisor an investment advisory fee (the “Fee”) equal to an annualized rate of the average daily net assets of the Allocated Assets (“AUM”) as follows:
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Adaptive Growth Opportunities ETF
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Sub-Advisor Allocated Assets
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Fee Rate
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$0 to $20 Million
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Zero
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>$20 Million to $40 Million
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15 basis points (on all AUM)
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Above $40 Million
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30 basis points (on all AUM)
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The Fee shall be calculated as of the last business day of each month based upon the AUM, and shall be paid to the Sub-Advisor by the Advisor on a quarterly basis within a 30-day period at the conclusion of each
quarter as agreed to between the Advisor and Sub-Advisor. The Fund will not pay a direct fee to the Sub-Advisor.
3. Status of
Investment Sub-Advisor. The services of the Sub-Advisor to the Advisor and the Fund are not to be deemed exclusive, and the Sub-Advisor shall be free to render similar services to others (including, without limitation, any other registered
investment management company, or series thereof) so long as its Services to the Fund are not impaired thereby. The Sub-Advisor shall be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Advisor or the Fund in any way or otherwise be deemed an agent of the Advisor or the Fund. Nothing in this Agreement shall limit or restrict the right of any director, officer or employee of the Sub-Advisor, who
may also be a trustee, officer or employee of the Advisor or the Fund, to engage in any other business or to devote his or her time and attention in part to the management or other aspects of any other business, whether of a similar nature or a
dissimilar nature.
4. Permissible
Interests. Trustees, agents, and stockholders of the Fund and the Advisor are or may be interested in the Sub-Advisor (or any successor thereof) as directors, partners, officers, or stockholders, or otherwise; and directors, partners,
officers, agents, and stockholders of the Sub-Advisor are or may be interested in the Advisor or the Fund as trustees, directors, officers, stockholders or otherwise; and the Sub-Advisor (or any successor) is or may be interested in the Advisor or
the Fund as a stockholder or otherwise.
5. Limits of
Liability; Indemnification. The Sub-Advisor assumes no responsibility under this Agreement other than to render the Services called for hereunder. The Sub-Advisor shall not be liable for any error of judgment or for any loss suffered by
the Advisor or the Fund in connection with the matters to which this Agreement relates, except a loss resulting from a breach of fiduciary duty with respect to receipt of compensation for services (in which case any award of damages shall be limited
to the period and the amount set forth in Section 36(b)(3) of the Act) or a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of, or from reckless disregard by it of its obligations and duties
under, this Agreement. It is agreed that the Sub-Advisor shall have no responsibility or liability for the accuracy or completeness of the Trust’s registration statement under the Act or the Securities Act of 1933, as amended, except for information
supplied by the Sub-Advisor for inclusion therein.
The Sub-Advisor will indemnify the Advisor and its directors, members, partners, officers, employees and agents (“Advisor Parties”) against and hold the Advisor Parties harmless from any and all
losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) arising from any claim, demand, action or suit which results from the Sub-Advisor Parties’ (as such term is defined immediately below) willful
misfeasance, bad faith, gross negligence or reckless disregard of the Sub-Advisor's obligations and duties under this Agreement.
The Advisor will indemnify the Sub-Advisor and its directors, members, partners, officers, employees and agents (“Sub-Advisor Parties”) against and hold the Sub-Advisor Parties harmless from any and
all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) arising from any claim, demand, action or suit which results from the Advisor Parties' willful misfeasance, bad faith, gross negligence or reckless
disregard of the Advisor's obligations and duties under this Agreement.
6. Term.
This Agreement shall remain in effect for an initial term of two years from the date hereof, and from year to year thereafter provided such continuance is approved at least annually by the vote of a majority of the Independent Trustees, which vote
must be cast in person at a meeting called for the purpose of voting on such approval; provided, however, this Agreement may be terminated at any time on at least 60 days prior written notice to the Sub-Advisor, without the payment of
any penalty, (i) by vote of the Trustees or (ii) by vote of a majority of the outstanding voting securities (as defined in the Act) of the Fund; and provided, further, that this Agreement may be terminated at any time by the Advisor,
on at least 60 days’ prior written notice to the Sub-Advisor. The Sub-Advisor may terminate this Agreement at any time, without the payment of any penalty, on at least 60 days prior written notice to the Advisor and the Fund. This Agreement will
automatically and immediately terminate in the event of its assignment (as defined in the Act) or upon the termination of the Advisory Agreement.
7. Prohibited Conduct. The Sub-Advisor may not consult with any other sub-advisor of the Trust concerning transactions in securities or other assets for any investment portfolio of the Trust, including the Fund,
except that such consultations are permitted between the current and successor sub-advisor of the Fund in order to effect an orderly transition of portfolio management duties so long as such consultations are not concerning transactions prohibited by
Section 17(a) of the Act.
8. Use of Names.
(a) It is understood that
the names “Cavalier Investments,” “Adaptive Investments” and “Adaptive Growth Opportunities ETF” or any derivative thereof or logo associated with those names is the valuable property of the Advisor and/or its affiliates, and that the Sub-Advisor has
the right to use such name (or derivative or logo) only with the approval of the Advisor and only so long as the Advisor is Advisor to the Trust and/or the Fund. Upon termination of the Advisory Agreement between the Trust and the Advisor, the Trust
or the Advisor shall notify the Sub-Advisor of the termination of the Advisory Agreement and the Sub-Advisor shall as soon as is reasonably possible cease to use such name (or derivative or logo).
(b) It is understood that
the name “Bluestone Capital” or any derivative thereof or logos associated with that name are the valuable property of the Sub-Advisor and its affiliates and that the Trust and/or the Fund have the right to use such names (or derivatives or logos) in
offering materials of the Trust with the approval of the Sub-Advisor and for so long as the Sub-Advisor is a sub-advisor to the Trust and/or the Fund. Upon termination of this Agreement between the Advisor, and the Sub-Advisor, the Trust shall as
soon as is reasonably possible cease to use such names (or derivatives or logos).
9. Cooperation; Confidentiality. Each party to this Agreement agrees to cooperate with each other party and with all appropriate governmental authorities having the requisite jurisdiction (including, but not limited
to, the U.S. Securities and Exchange Commission (the "SEC") in connection with any investigation or inquiry relating to this Agreement or the Trust. If any party to this Agreement becomes legally compelled to disclose any confidential information of
the other party or is served with any regulatory request, subpoena, discovery device, court order or other legal process seeking confidential information of the other party, the party being so compelled, prior to such disclosure and to the extent
permitted by law, shall first provide the other party with prompt written notice of such disclosure obligation and cooperate, if requested, with the other party in its attempts to prevent such disclosure.
Subject to the foregoing, the Sub-Advisor shall treat as confidential all information pertaining to the Trust and actions of the Trust, the Advisor and the Sub-Advisor, and the
Advisor shall treat as confidential and use only in connection with the Fund all information furnished to the Trust or the Advisor by the Sub-Advisor, in connection with its duties under the Agreement, except that the aforesaid information need not
be treated as confidential if required to be disclosed under applicable law or at the request of regulators or self-regulatory organizations, if generally available to the public through means other than by disclosure by the Sub-Advisor or the
Advisor, or if available from a source other than the Advisor, Sub-Advisor, or the Trust. Notwithstanding any of the foregoing, the Sub-Advisor may disclose confidential information if specifically authorized by the Advisor or the Trust and the
Advisor or the Trust may disclose confidential information if specifically authorized by the Sub-Advisor. Each party’s obligation to hold the Confidential Information obtained from the other party in strict confidence as forth herein shall survive
the performance in full or the termination of this Agreement for so long as such information remains confidential.
10. Amendments. No provision of this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall be effective until approved by vote of the holders of a majority of the Trust’s outstanding voting securities.
11. Applicable Law. This Agreement shall be construed in accordance with, and governed by, the substantive laws of the State of Delaware, without regard to the principles of the conflict of laws or the choice of
laws, provided that nothing herein shall be construed in a manner inconsistent with the Act, the Advisers Act or rules or orders of the SEC thereunder.
12. Representations and Warranties.
(a) Representations and Warranties of the Sub-Advisor. The Sub-Advisor hereby represents and warrants to the Advisor and the Fund as follows: (i) the Sub-Advisor is a limited liability company duly organized and in
good standing under the laws of the Commonwealth of Pennsylvania and is fully authorized to enter into this Agreement and carry out its duties and obligations hereunder; and (ii) the Sub-Advisor is registered as an investment advisor with the SEC
under the Advisers Act, and shall maintain such registration in effect at all times during the term of this Agreement.
(b) Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Sub-Advisor as follows: (i) the Advisor is a corporation duly organized and in good standing under the laws of the
Commonwealth of Massachusetts and is fully authorized to enter into this Agreement and carry out its duties and obligations hereunder; and (ii) the Advisor is registered as an investment advisor with the SEC under the Advisers Act, and shall maintain
such registration in effect at all times during the term of this Agreement.
13. Severability.
If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby and, to this extent, the provisions of this Agreement shall be deemed to
be severable.
14. Notice. Any notice must be in writing and shall be deemed to
have been given when (1) delivered in person, (2) dispatched by telegram or electric facsimile transfer (confirmed in writing by postage prepaid first class mail simultaneously dispatched), (3) sent by internationally recognized overnight courier
service (with receipt confirmed by such overnight courier service), or (4) sent by registered or certified mail, to the other party at the address of such party set forth below or at such other address as such party may from time to time specify in
writing to the other party.
If to the Advisor:
Cavalier Investments, LLC
00000 Xxxxxxxxx, Xxxxx #000
Xxxxxxxxxx, XX 00000
If to the Sub-Advisor:
Bluestone Capital Management LLC
00 Xxxx Xxx, Xxxxx 000
Xxxxx, XX 00000
15. Notice of Certain Changes in Sub-Advisor. The
Sub-Advisor is hereby obligated to notify the Fund and Advisor if there is a material change in the Sub-Advisor’s equity ownership, whether, as the case may be, of members, shareholders, general or limited partners, or senior executive personnel,
within a reasonable time before such change takes place.
16. Miscellaneous.
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(a)
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The term “affiliate” or “affiliated person” as used in this Agreement shall mean “affiliated person” as defined in Section 2(a)(3) of the Act.
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(b)
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The captions of this Agreement are included for convenience only and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect.
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(c)
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If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby, and to
this extent, the provisions of this Agreement shall be deemed to be severable.
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(d)
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Nothing herein shall be construed as constituting the Sub-Advisor as an agent of the Advisor or constituting the Advisor as an agent of the Sub-Advisor.
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(e)
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The Advisor and the Sub-Advisor each affirm that it has procedures in place reasonably designed to protect the privacy of non-public personal consumer/customer financial information.
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(f)
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The Advisor and the Sub-Advisor acknowledge that each may have obligations under the laws and regulations of the United States to verify the source of funds and identity of investors in accordance with the
USA Patriot Act, and any rules or regulations adopted thereunder (collectively the “Patriot Act”). Each party agrees to assist the other parties in monitoring transactions in accordance with the Patriot Act. If required by applicable law
or regulation, each party shall provide the other parties with documentation evidencing the identity of a beneficial owner or owners of shares of the Fund upon request when a party is required by a law, court order, or by administrative or
regulatory entity to disclose the identity of the beneficial owner(s).
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(g)
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This Agreement may be executed in counterparts, all of which together shall constitute one Agreement, binding on all the parties.
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(h)
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The undersigned each have the power, on behalf of their respective entities, to enter into, execute, and deliver this Agreement and to perform fully the party’s obligations under this Agreement. This
Agreement is valid and binding on and enforceable against each party in accordance with the terms and conditions herein.
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(i)
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Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, to the extent permitted by law, but no such waiver shall be effective unless set forth
in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or be construed as a
waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement, by law, in equity, or otherwise afforded will be cumulative and not in the alternative.
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[SIGNATURES ON NEXT PAGE]
[Signature Page to Investment Sub-Advisory Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and the year first written above.
INVESTMENT ADVISOR:
CAVALIER INVESTMENTS, LLC
d/b/a ADAPTIVE INVESTMENTS
By:
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
INVESTMENT SUB-ADVISOR:
BLUESTONE CAPITAL MANAGEMENT, LLC
By:
Name: Xxx Xxxxx
Title: President
