INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT (the "Agreement") made as of this 17th day of
July, 2017 by and between The Advisors' Inner Circle Fund III (the "Trust"), a
Delaware statutory trust registered as an investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and Investec Asset
Management North America, Inc. (the "Adviser"), a corporation with its principal
place of business at 000 Xxxxx Xxxxxx, 00(xx) xxxxx, Xxx Xxxx, XX 00000.
W I T N E S S E T H
WHEREAS, the Board of Trustees (the "Board") of the Trust has selected the
Adviser to act as investment adviser to the Trust on behalf of the series set
forth on Schedule A to this Agreement (the "Fund"), as such Schedule may be
amended from time to time upon mutual agreement of the parties, and to provide
certain related services, as more fully set forth below, and to perform such
services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and benefits set
forth herein, the Trust and the Adviser do hereby agree as follows:
1. THE ADVISER'S SERVICES.
(a) DISCRETIONARY INVESTMENT MANAGEMENT SERVICES. The Adviser shall
act as investment adviser with respect to the Fund. In such capacity, the
Adviser shall, subject to the supervision of the Board, regularly provide
the Fund with investment research, advice and supervision and shall furnish
continuously an investment program for the Fund, consistent with the
investment objectives and policies of the Fund. The Adviser shall
determine, from time to time, what securities or other investments
(collectively, "securities") shall be purchased for the Fund, what
securities shall be held or sold by the Fund and what portion of the Fund's
assets shall be held uninvested in cash, subject always to the provisions
of the Trust's Agreement and Declaration of Trust, By-Laws and its
registration statement on Form N-1A (the "Registration Statement") under
the 1940 Act, and under the Securities Act of 1933, as amended (the "1933
Act"), covering Fund shares, as filed with the Securities and Exchange
Commission (the "Commission"), and to the investment objectives, policies
and restrictions of the Fund, as each of the same shall be from time to
time in effect. To carry out such obligations, the Adviser shall exercise
full discretion and act for the Fund in the same manner and with the same
force and effect as the Fund itself might or could do with respect to
purchases, sales or other transactions, as well as with respect to all
other such things necessary or incidental to the furtherance or conduct of
such purchases, sales or other transactions. No reference in this Agreement
to the Adviser having full discretionary authority over the Fund's
investments shall in any way limit the right of the Board, in its sole
discretion, to establish or revise policies in connection with the
management of the Fund's assets or to otherwise exercise its right to
control the overall management of the Fund.
(b) COMPLIANCE. The Adviser agrees to comply with the requirements of
the 1940 Act, the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), the
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1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the Commodity Exchange Act and the respective rules and regulations
thereunder, as applicable, as well as with all other applicable federal and
state laws, rules, regulations and case law that relate to the services and
relationships described hereunder and to the conduct of its business as a
registered investment adviser. The Adviser also agrees to comply with the
objectives, policies and restrictions set forth in the Registration
Statement, as amended or supplemented, of the Fund, and with any policies,
guidelines, instructions and procedures approved by the Board and provided
to the Adviser in writing. In selecting the Fund's portfolio securities and
performing the Adviser's obligations hereunder, the Adviser shall cause the
Fund to comply with the diversification and source of income requirements
of Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), for qualification as a regulated investment company. The Adviser
shall maintain compliance procedures that it reasonably believes are
adequate to ensure its compliance with the foregoing. No supervisory
activity undertaken by the Board shall limit the Adviser's full
responsibility for any of the foregoing.
(c) PROXY VOTING. The Board has the authority to determine how proxies
with respect to securities that are held by the Fund shall be voted, and
the Board has initially determined to delegate the authority and
responsibility to vote proxies for the Fund's securities to the Adviser. So
long as proxy voting authority for the Fund has been delegated to the
Adviser, the Adviser shall exercise its proxy voting responsibilities. The
Adviser shall carry out such responsibility in accordance with any
instructions that the Board shall provide from time to time, and at all
times in a manner consistent with Rule 206(4)-6 under the Advisers Act and
its fiduciary responsibilities to the Trust. The Adviser shall provide
periodic reports and keep records relating to proxy voting as the Board may
reasonably request or as may be necessary for the Fund to comply with the
1940 Act and other applicable law. Any such delegation of proxy voting
responsibility to the Adviser may be revoked or modified by the Board at
any time.
The Adviser is authorized to instruct the Fund's custodian and/or broker(s)
to forward promptly to the Adviser or designated service provider copies of
all proxies and shareholder communications relating to securities held in
the portfolio of a Fund (other than materials relating to legal proceedings
against the Fund). The Adviser may also instruct the Fund's custodian
and/or broker(s) to provide reports of holdings in the portfolio of the
Fund. The Adviser has the authority to engage a service provider to assist
with administrative functions related to voting Fund proxies. The Trust
shall direct the Fund's custodian and/or broker(s) to provide any
assistance requested by the Adviser in facilitating the use of a service
provider. In no event shall the Adviser have any responsibility to vote
proxies that are not received on a timely basis. The Trust acknowledges
that the Adviser, consistent with the Adviser's written proxy voting
policies and procedures, may refrain from voting a proxy if, in the
Adviser's discretion, refraining from voting would be in the best interests
of the Fund and its shareholders.
Unless the Adviser otherwise agrees in writing, the Adviser will not advise
or take any action on behalf of the Fund in any contemplated or actual
legal proceedings, including
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but not limited to bankruptcies, tax reclaims or class actions (including
the filing of proofs of claim), and the Adviser will not be responsible for
determining a Fund's eligibility to participate in any such proceeding with
respect to any securities or other instruments held or formerly held by the
Fund, or for taking any action in connection with such proceeding, and the
Trust expressly reserves this authority for itself.
(d) RECORDKEEPING. The Adviser shall not be responsible for the
provision of administrative, bookkeeping or accounting services to the
Fund, except as otherwise provided herein or as may be necessary for the
Adviser to supply to the Trust or its Board the information required to be
supplied under this Agreement.
The Adviser shall maintain separate books and detailed records of all
matters pertaining to Fund assets advised by the Adviser required by Rule
31a-1 under the 1940 Act (other than those records being maintained by any
administrator, custodian or transfer agent appointed by the Fund) relating
to its responsibilities provided hereunder with respect to the Fund, and
shall preserve such records for the periods and in a manner prescribed
therefore by Rule 31a-2 under the 1940 Act (the "Fund Books and Records").
The Fund Books and Records shall be available to the Board during business
hours and upon request, shall be delivered to the Trust upon the
termination of this Agreement and shall be available with reasonable notice
during any day the Trust the Adviser and the Adviser's parent located in
the United Kingdom are open for business.
(e) HOLDINGS INFORMATION AND PRICING. As required by the Trust's
compliance manual ("Compliance Manual"), the Adviser (i) shall provide
regular reports regarding Fund holdings, and may, on its own initiative,
furnish the Trust and its Board from time to time with whatever information
the Adviser believes is appropriate for this purpose; (ii) agrees to notify
the Trust promptly if the Adviser reasonably believes that the value of any
security held by the Fund may not reflect fair value and (iii) agrees to
provide upon request any pricing information of which the Adviser is aware
to the Trust, its Board and/or any Fund pricing agent which the Adviser
reasonably believes, in good faith, may be relevant to assist in the
determination of the fair value of any Fund holdings for which market
quotations are not readily available or as otherwise required in accordance
with the 1940 Act or the Trust's valuation procedures for the purpose of
calculating the Fund net asset value in accordance with procedures and
methods established by the Board.
(f) COOPERATION WITH AGENTS OF THE TRUST. The Adviser agrees to
cooperate with and provide reasonable assistance to the Trust, any Trust
custodian or foreign sub-custodians, any Trust pricing agents and all other
agents and representatives of the Trust with respect to such information
regarding the Fund as such entities may reasonably request from time to
time in the performance of their obligations, provide prompt responses to
reasonable requests made by such persons and establish appropriate
interfaces with each so as to promote the efficient exchange of information
and compliance with applicable laws and regulations.
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2. CODE OF ETHICS. The Adviser has adopted a written code of ethics that it
reasonably believes complies with the requirements of Rule 17j-1 under the 1940
Act, which it has provided to the Trust. The Adviser shall ensure that its
Access Persons (as defined in the Adviser's Code of Ethics) comply in all
material respects with the Adviser's Code of Ethics, as in effect from time to
time. Upon request, the Adviser shall provide the Trust with a (i) copy of the
Adviser's current Code of Ethics, as in effect from time to time, and (ii)
certification that it has adopted procedures reasonably necessary to prevent
Access Persons from engaging in any conduct prohibited by the Adviser's Code of
Ethics. Annually, the Adviser shall furnish a written report, which complies
with the requirements of Rule 17j-1, concerning the Adviser's Code of Ethics to
the Trust's Board. The Adviser shall respond to requests for information from
the Trust as to violations of the Code by Access Persons and the sanctions
imposed by the Adviser. The Adviser shall promptly notify the Trust of any
material violation of the Code, whether or not such violation relates to a
security held by the Fund.
3. INFORMATION AND REPORTING. The Adviser shall provide the Trust and its
officers with such periodic reports concerning the obligations the Adviser has
assumed under this Agreement as the Trust may from time to time reasonably
request.
(a) NOTIFICATION OF BREACH / COMPLIANCE REPORTS. The Adviser shall
notify the Trust's chief compliance officer promptly upon detection of (i)
any material failure to manage the Fund in accordance with the Fund's
investment limitations as set forth in the Fund's Prospectus and Statement
of Additional Information, as amended from time to time (collectively, the
"Investment Limitations") or any applicable law or (ii) any material breach
of any of the Investment Limitations or the Adviser's policies or
procedures as applicable to the Adviser's obligations under this Agreement.
In addition, the Adviser shall provide a quarterly report regarding the
Fund's compliance with its investment objectives and policies, applicable
law, including, but not limited to the 1940 Act and Subchapter M of the
Code, and the Fund's policies, guidelines or procedures as applicable to
the Adviser's obligations under this Agreement. The Adviser agrees to
correct any such failure promptly and to take any action that the Board may
reasonably request in connection with any such breach. Upon request, the
Adviser shall also provide the officers of the Trust with supporting
certifications in connection with such certifications of Fund financial
statements and disclosure controls pursuant to the Xxxxxxxx-Xxxxx Act. The
Adviser will promptly notify the Trust in the event (i) the Adviser is
served or otherwise receives notice of any action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court,
public board, or body, involving the affairs of the Trust (excluding class
action suits in which the Fund is a member of the plaintiff class by reason
of the Fund's ownership of shares in the defendant) or the compliance by
the Adviser with the federal or state securities laws or (ii) an actual
change in control of the Adviser resulting in an "assignment" (as defined
in the 1940 Act) has occurred or is otherwise proposed to occur.
(b) BOARD AND FILINGS INFORMATION. The Adviser will provide the Trust
with any information reasonably requested regarding its management of the
Fund required for any meeting of the Board, or for any shareholder report,
Form N-CSR, Form N-Q, Form N-PX, Form N-SAR, amended registration
statement, proxy statement, or prospectus
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supplement to be filed by the Trust with the Commission. The Adviser will
make its officers and employees available to meet with the Board from time
to time on due notice to review its investment management services to the
Fund in light of current and prospective economic and market conditions and
shall furnish to the Board such information as may reasonably be necessary
in order for the Board to evaluate this Agreement or any proposed
amendments thereto.
(c) TRANSACTION INFORMATION. The Adviser shall furnish to the Trust
such information concerning portfolio transactions as may be necessary to
enable the Trust or its designated agent to perform such compliance testing
on the Fund and the Adviser's services as the Trust may, in its sole
discretion, determine to be appropriate. The provision of such information
by the Adviser to the Trust or its designated agent in no way relieves the
Adviser of its own responsibilities under this Agreement.
4. BROKERAGE.
(a) PRINCIPAL TRANSACTIONS. In connection with purchases or sales of
securities for the account of the Fund, neither the Adviser nor any of its
directors, officers or employees will act as a principal or agent or
receive any commission except as permitted by the 1940 Act.
(b) PLACEMENT OF ORDERS. The Adviser shall arrange for the placing of
all orders for the purchase and sale of securities for the Fund's account
with brokers or dealers selected by the Adviser. In the selection of such
brokers or dealers and the placing of such orders, the Adviser is directed
at all times to seek for the Fund the most favorable execution and net
price available under the circumstances. It is also understood that it is
desirable for the Fund that the Adviser have access to brokerage and
research services provided by brokers who may execute brokerage
transactions at a higher cost to the Fund than may result when allocating
brokerage to other brokers, consistent with section 28(e) of the 1934 Act
and any Commission staff interpretations thereof. Therefore, the Adviser is
authorized to place orders for the purchase and sale of securities for the
Fund with such brokers, subject to review by the Board from time to time
with respect to the extent and continuation of this practice. It is
understood that the services provided by such brokers may be useful to the
Adviser in connection with its or its affiliates' services to other
clients.
(c) AGGREGATED TRANSACTIONS. On occasions when the Adviser deems the
purchase or sale of a security to be in the best interest of the Fund as
well as other clients of the Adviser, the Adviser may, to the extent
permitted by applicable law and regulations, aggregate the order for
securities to be sold or purchased. In such event, the Adviser will
allocate securities so purchased or sold, as well as the expenses incurred
in the transaction, in the manner the Adviser reasonably considers to be
equitable and consistent with its fiduciary obligations to the Fund and to
such other clients under the circumstances.
(d) AFFILIATED BROKERS. The Adviser or any of its affiliates may act
as broker in connection with the purchase or sale of securities or other
investments for the Fund,
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subject to: (a) the requirement that the Adviser seek to obtain best
execution and price within the policy guidelines determined by the Board
and set forth in the Fund's current Registration Statement; (b) the
provisions of the 1940 Act; (c) the provisions of the Advisers Act; (d) the
provisions of the 1934 Act; and (e) other provisions of applicable law.
These brokerage services are not within the scope of the duties of the
Adviser under this Agreement. Subject to the requirements of applicable law
and any procedures adopted by the Board, the Adviser or its affiliates may
receive brokerage commissions, fees or other remuneration from the Fund for
these services in addition to the Adviser's fees for services under this
Agreement.
5. CUSTODY. Nothing in this Agreement shall permit the Adviser to take or
receive physical possession of cash, securities or other investments of the
Fund.
6. ALLOCATION OF CHARGES AND EXPENSES. The Adviser will bear its own costs
of providing services hereunder. Other than as herein specifically indicated,
the Adviser shall not be responsible for the Fund's expenses, including
brokerage and other expenses incurred in placing orders for the purchase and
sale of securities and other investment instruments.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) PROPERLY REGISTERED. The Adviser is registered as an investment
adviser under the Advisers Act, and will remain so registered for the
duration of this Agreement. The Adviser is not prohibited by the Advisers
Act or the 1940 Act from performing the services contemplated by this
Agreement, and to the best knowledge of the Adviser, there is no proceeding
or investigation that is reasonably likely to result in the Adviser being
prohibited from performing the services contemplated by this Agreement. The
Adviser agrees to promptly notify the Trust of the occurrence of any event
that would disqualify the Adviser from serving as an investment adviser to
an investment company. The Adviser is in compliance in all material
respects with all applicable federal and state law in connection with its
investment management operations.
(b) ADV DISCLOSURE. The Adviser has provided the Trust with a copy of
its Form ADV Part I as most recently filed with the SEC and its current
Part II and will, promptly after filing any amendment to its Form ADV with
the SEC updating its Part II, furnish a copy of such amendments or updates
to the Trust. The information contained in the Adviser's Form ADV is
accurate and complete in all material respects and does not omit to state
any material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading.
(c) FUND DISCLOSURE DOCUMENTS. The Adviser has reviewed, and will in
the future review, the Registration Statement, summary prospectus,
prospectus, statement of additional information, periodic reports to
shareholders, reports and schedules filed with the Commission (including
any amendment, supplement or sticker to any of the foregoing) and
advertising and sales material relating to the Fund (collectively the
"Disclosure Documents") that are provided to the Adviser for review and
represents and warrants that, solely with respect to information about the
Adviser and its investment strategy, such Disclosure Documents contain or
will contain no untrue statement of any
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material fact and do not and will not omit any statement of material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(d) USE OF THE NAME "INVESTEC". The Adviser has the right to use the
name "INVESTEC" in connection with its services to the Trust and that,
subject to the terms set forth in Section 8 of this Agreement, the Trust
shall have the right to use the name "INVESTEC" in connection with the
management and operation of the Fund. The Adviser is not aware of any
threatened or existing actions, claims, litigation or proceedings that
would adversely affect or prejudice the rights of the Adviser or the Trust
(e) INSURANCE. The Adviser maintains errors and omissions insurance
coverage in an appropriate amount and shall provide prompt written notice
to the Trust (i) of any material changes in its insurance policies or
insurance coverage; or (ii) if any material claims will be made on its
insurance policies. Furthermore, the Adviser shall, upon reasonable
request, provide the Trust with any information it may reasonably require
concerning the amount of or scope of such insurance.
(f) NO DETRIMENTAL AGREEMENT. The Adviser represents and warrants that
it has no arrangement or understanding with any party, other than the
Trust, that would influence the decision of the Adviser with respect to its
selection of securities for the Fund, and that all selections shall be done
in accordance with what is in the best interest of the Fund.
(g) CONFLICTS. The Adviser shall act honestly, in good faith and in
the best interests of the Trust including requiring any of its personnel
with knowledge of Fund activities to place the interest of the Fund first,
ahead of their own interests, in all personal trading scenarios that may
involve a conflict of interest with the Fund, consistent with its fiduciary
duties under applicable law.
(h) BINDING AND ENFORCEABLE. Each party hereto represents and warrants
that this Agreement is binding upon it and enforceable in accordance with
its terms except insofar as enforcement may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of creditors'
rights or general principles of equity.
(i) GENERAL COMPLIANCE. Each party hereto represents and warrants that
it has complied with and will continue to comply with all laws, rules and
regulations or court and governmental orders by which it is bound or to
which it is subject in connection with the execution and performance of
this Agreement.
(j) LICENSES. Each party hereto represents and warrants has and will
continue to have all governmental, regulatory, self-regulatory and exchange
licences, registrations, memberships, and approvals required to discharge
its obligations under this Agreement
(k) REPRESENTATIONS. The representations and warranties in this
Section 7 shall be deemed to be made on the date this Agreement is executed
and at the time of delivery
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of the quarterly compliance report required by Section 3(a), whether or not
specifically referenced in such report.
8. THE NAME "INVESTEC". The Adviser grants to the Trust a license to use
the name "INVESTEC" (the "Name") as part of the name of the Fund. The foregoing
authorization by the Adviser to the Trust to use the Name as part of the name of
the Fund is not exclusive of the right of the Adviser itself to use, or to
authorize others to use, the Name; the Trust acknowledges and agrees that, as
between the Trust and the Adviser, the Adviser has the right to use, or
authorize others to use, the Name. The Trust shall (1) only use the Name in a
manner consistent with uses approved by the Adviser; (2) use its best efforts to
maintain the quality of the services offered using the Name; and (3) adhere to
such other specific quality control standards as the Adviser may from time to
time promulgate. At the request of the Adviser, the Trust will (a) submit to
Adviser representative samples of any promotional materials using the Name and
make any changes to such promotional or other materials as may be reasonably
requested by the Adviser; and (b) change the name of the Fund within three
months of its receipt of the Adviser's request, or such other shorter time
period as may be required under the terms of a settlement agreement or court
order, so as to eliminate all reference to the Name and will not thereafter
transact any business using the Name in the name of the Fund; provided, however,
that the Trust may continue to use, solely as reasonably necessary beyond such
date, any supplies of prospectuses, marketing materials and similar documents
that the Trust had on the date of such name change in quantities not exceeding
those historically produced and used in connection with such Fund.
9. FUND MARKETING. The Trust permits the Adviser to (i) market the Funds;
and (ii) include the Fund's performance in a composite performance presentation
of similar accounts.
10. ADVISER'S COMPENSATION. The Fund shall pay to the Adviser, as
compensation for the Adviser's services hereunder, a fee, determined as
described in Schedule A that is attached hereto and made a part hereof. Such fee
shall be computed daily and paid not less than monthly in arrears by the Fund.
The method for determining net assets of the Fund for purposes hereof shall
be the same as the method for determining net assets for purposes of
establishing the offering and redemption prices of Fund shares as described in
the Fund's prospectus. In the event of termination of this Agreement, the fee
provided in this Section shall be computed on the basis of the period ending on
the last business day on which this Agreement is in effect subject to a pro rata
adjustment based on the number of days elapsed in the current month as a
percentage of the total number of days in such month.
11. INDEPENDENT CONTRACTOR. In the performance of its duties hereunder, the
Adviser is and shall be an independent contractor and, unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent the Trust or the Fund in any way or otherwise
be deemed to be an agent of the Trust or the Fund. If any occasion should arise
in which the Adviser gives any advice to its clients concerning the shares of
the Fund, the Adviser will act solely as investment counsel for such clients and
not in any way on behalf of the Fund.
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12. ASSIGNMENT AND AMENDMENTS. This Agreement shall automatically
terminate, without the payment of any penalty, in the event of its assignment
(as defined in section 2(a)(4) of the 1940 Act); provided that such termination
shall not relieve the Adviser of any liability incurred hereunder.
This Agreement may not be added to or changed orally and may not be
modified or rescinded except by a writing signed by the parties hereto and in
accordance with the 1940 Act, when applicable.
13. DURATION AND TERMINATION.
This Agreement shall become effective as of the date executed and shall
remain in full force and effect continually thereafter, subject to renewal as
provided in Section 13(c) and unless terminated automatically as set forth in
Section 13 hereof or until terminated as follows:
(a) The Trust may cause this Agreement to terminate upon at least
thirty (30) days' written notice delivered or mailed by registered mail,
postage prepaid, to the Adviser either (i) by vote of its Board or (ii)
with respect to the Fund, upon the affirmative vote of a majority of the
outstanding voting securities of the Fund; or
(b) The Adviser may at any time terminate this Agreement by not more
than sixty (60) days' nor less than thirty (30) days' written notice
delivered or mailed by registered mail, postage prepaid, to the Trust; or
(c) This Agreement shall remain in effect for two years from the date
of its execution and shall continue in effect from year to year if its
renewal is specifically approved at least annually thereafter by (i) a
majority vote of the Trustees, including a majority vote of such Trustees
who are not interested persons of the Trust or the Adviser, at a meeting
called for the purpose of voting on such approval; or (ii) the vote of a
majority of the outstanding voting securities of the Fund; provided,
however, that if the continuance of this Agreement is submitted to the
shareholders of the Fund for their approval and such shareholders fail to
approve such continuance of this Agreement as provided herein, the Adviser
may continue to serve hereunder as to the Fund in a manner consistent with
the 1940 Act and the rules and regulations thereunder; and
(d) Termination of this Agreement pursuant to this Section shall be
without payment of any penalty.
In the event of termination of this Agreement for any reason, the Adviser
shall, immediately upon notice of termination or on such later date as may be
specified in such notice, cease all activity on behalf of the Fund and with
respect to any of its assets, except as otherwise required by any fiduciary
duties of the Adviser under applicable law. In addition, the Adviser shall
deliver the Fund Books and Records to the Trust by such means and in accordance
with such schedule as the Trust shall direct and shall otherwise cooperate, as
reasonably directed by the Trust, in the transition of portfolio asset
management to any successor of the Adviser.
14. CERTAIN DEFINITIONS. For the purposes of this Agreement:
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(a) "Affirmative vote of a majority of the outstanding voting
securities of the Fund" shall have the meaning as set forth in the 1940
Act, subject, however, to such exemptions as may be granted by the
Commission under the 1940 Act or any interpretations of the Commission
staff.
(b) "Interested persons" and "Assignment" shall have their respective
meanings as set forth in the 1940 Act, subject, however, to such exemptions
as may be granted by the Commission under the 1940 Act or any
interpretations of the Commission staff.
15. LIABILITY OF THE ADVISER.
(a) The Adviser shall have responsibility for the accuracy and
completeness (and liability for the lack thereof) directly related to its
statements in the Fund's Disclosure Documents.
(b) The Adviser, its affiliates and its and their respective officers,
directors, members, principals, shareholders, controlling persons,
partners, managers, employees, agents, affiliates or assigns shall be
liable to the Fund for any loss, claims, damages, expenses or liabilities
("Losses"), as a result of (i) any investment made by the Adviser in
contravention of: (a) any investment policy, guideline or restriction set
forth in the Registration Statement or as approved by the Board from time
to time and provided to the Adviser; or (b) applicable law, including but
not limited to the 1940 Act and the Code (including but not limited to the
Fund's failure to satisfy the diversification or source of income
requirements of Subchapter M of the Code) (the investments described in
this subsection (b) collectively are referred to as "Improper
Investments"); and (ii) the Losses described in subsection (c) below.
Notwithstanding the foregoing and for the avoidance of doubt, the Adviser
shall not be liable for any Losses in connection with any matters for which
the Adviser is not responsible or does not perform a role as set forth in
this Agreement.
(c) The Adviser shall indemnify and hold harmless the Trust, each
affiliated person of the Trust within the meaning of Section 2(a)(3) of the
1940 Act, and each person who controls the Trust within the meaning of
Section 15 of the 1933 Act (any such person, an "Indemnified Party")
against any and all Losses (including the reasonable cost of investigating
and defending any alleged loss, claim, damage, expense or liability and
reasonable counsel fees incurred in connection therewith) to which any such
person may become subject under the 1933 Act, the 1934 Act, the 1940 Act or
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such Losses (or actions in respect thereof) arise out
of or are based upon: (i) a breach by the Adviser of this Agreement or of
the representations and warranties made by the Adviser herein; (ii) any
Improper Investment; (iii) any untrue statement or alleged untrue statement
of a material fact made by the Adviser in any Disclosure Document or the
Adviser's omission or alleged omission from a Disclosure Document of a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or (iv) the Adviser's non-performance of
its duties hereunder; provided, however, that nothing herein shall be
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deemed to protect any Indemnified Party who is a Trustee or officer of the
Trust against any liability to the Trust or to its shareholders to which
such Indemnified Party would otherwise be subject by reason or willful
misfeasance, bad faith, negligence or reckless disregard of the duties
involved in the conduct of such person's office with the Trust. The Adviser
shall neither be liable to any Indemnified Party for any Loss suffered as a
consequence of any action or inaction of any administrator, custodian,
distributor or transfer agent appointed by the Fund or the Trust. To the
extent permitted by applicable law, the Adviser shall not be liable for
indirect, special, incidental, punitive or consequential Losses.
(d) There is no capital guarantee with respect to the Adviser's
management of the Fund and investors of the Fund may experience a capital
loss. The Trust understands that investment decisions made for the Fund by
Adviser are subject to various market, currency, economic, political,
business and structural risks, and that those investment decisions will not
always be profitable.
(e) The Adviser shall not be liable for delays or errors occurring by
reason of circumstances beyond its control, including but not limited to
acts of civil or military authority, national emergencies, work stoppages,
fire, flood, catastrophe, acts of God, insurrection, war, riot, or failure
of communication or power supply. In the event of equipment breakdowns
beyond its control, the Adviser shall take reasonable steps to minimize
service interruptions but shall have no liability with respect thereto.
16. ENFORCEABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms or provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
17. LIMITATION OF LIABILITY. The parties to this Agreement acknowledge and
agree that all litigation arising hereunder, whether direct or indirect, and of
any and every nature whatsoever shall be satisfied solely out of the assets of
the affected Fund and that no Trustee, officer or holder of shares of beneficial
interest of the Fund shall be personally liable for any of the foregoing
liabilities.
18. CHANGE IN THE ADVISER'S OWNERSHIP. The Adviser agrees that it shall
notify the Trust of any anticipated or otherwise reasonably foreseeable change
in the owner ship of the Adviser within a reasonable time prior to such change
being effected.
19. JURISDICTION. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Delaware and the Adviser
consents to the jurisdiction of courts, both state and federal, in Delaware,
with respect to any dispute under this Agreement.
20. PARAGRAPH HEADINGS. The headings of paragraphs contained in this
Agreement are provided for convenience only, form no part of this Agreement and
shall not affect its construction.
11
21. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
signed on their behalf by their duly authorized officers as of the date first
above written.
THE ADVISORS' INNER CIRCLE FUND III, on behalf of the
Fund(s) listed on Schedule A
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxx
Title: President
INVESTEC ASSET MANAGEMENT NORTH AMERICA, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Head of Legal, Americas
By: /s/ Andre Van Heerden
---------------------
Name: Andre van Heerden
Title: Business Manager, North America
13
SCHEDULE A
TO THE
INVESTMENT ADVISORY AGREEMENT
DATED JULY 17, 2017 BETWEEN
THE ADVISORS' INNER CIRCLE FUND III
AND
INVESTEC ASSET MANAGEMENT NORTH AMERICA, INC.
The Trust will pay to the Adviser as compensation for the Adviser's services
rendered, a fee, computed daily at an annual rate based on the average daily
net assets of the Fund in accordance the following fee schedule:
FUND RATE
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Investec Global Franchise Fund 0.8%
