INVESTMENT ADVISORY AGREEMENT
Exhibit (d)(3)
THIS INVESTMENT ADVISORY AGREEMENT (“Agreement”) is made and entered into as of the 19th day of December
2022, by and between SPINNAKER ETF SERIES, a Delaware statutory trust (the “Trust”), on behalf of its series, Langar Global HealthTech
ETF (the “Fund”), and LANGAR INVESTMENT MANAGEMENT, LLC (the “Advisor”), located at 00000 Xxxxxxxx Xxx, Xxx Xxxxx, XX 00000.
WHEREAS, the Trust is registered as an open-end management investment company under the Investment Company act of 1940, as amended (the “Act”); and
WHEREAS, the Advisor is registered as an investment advisor under the Investment Advisers Act of 1940 and engages in the business of asset management; and
WHEREAS, the Trust desires to retain the Advisor to render investment advisory services to the Trust with respect to the Fund in the manner and on the terms
and conditions hereinafter set forth, and the Advisor is willing to furnish such services;
NOW, THEREFORE, the parties hereto agree as follows:
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1.
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APPOINTMENT OF THE ADVISOR
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The Trust appoints the Advisor as investment advisor to the Fund, for the period and on the terms set forth in this Agreement. The Advisor accepts such appointment and agrees
to furnish the services set forth herein, for the compensation indicated in Appendix A.
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2.
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OBLIGATIONS OF THE ADVISOR
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Subject to the supervision of the Trust’s Board of Trustees, the Advisor will provide a continuous investment program for the Fund.
(a) Services. The Advisor agrees to perform the following services for the
Fund:
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(i)
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Manage the investment and reinvestment of the assets of the Fund;
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(ii)
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Continuously review, supervise, and administer the investment program of the Fund;
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(iii)
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Determine, in its discretion, the securities to be purchased, retained, or sold (and implement those decisions) with respect to the Fund;
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(iv)
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Provide the Trust with records concerning the Advisor’s activities under this Agreement which the Trust is required to maintain;
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(v)
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Render regular reports to the Trust’s trustees and officers concerning the Advisor’s discharge of the foregoing responsibilities; and
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(vi)
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Perform such other services as agreed by the Advisor and the Trust from time to time.
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The Advisor shall discharge the foregoing responsibilities subject to the control of the trustees and officers of the Trust and in compliance with (i) such policies as the
trustees may from time to time establish; (ii) the Fund’s objectives, policies, and limitations as set forth in the prospectus and statement of additional information, as the same may be amended from time to time; and (iii) with all applicable laws
and regulations. All services to be furnished by the Advisor under this Agreement may be furnished through the medium of any directors, officers, or employees of the Advisor or through such other parties as the Advisor may determine from time to
time.
(b) Expenses and Personnel. The Advisor agrees, at its own expense or at the
expense of one or more of its affiliates, to render its services and to provide the office space, furnishings, equipment, and personnel as may be reasonably required in the judgment of the trustees and officers of the Trust to perform the services on
the terms and for the compensation provided herein. The Advisor shall authorize and permit any of its officers, directors, and employees, who may be elected as trustees or officers of the Trust, to serve in the capacities in which they are elected.
(c) Fund Transactions. The Advisor is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio securities for the Fund. With respect to brokerage selection, the Advisor shall seek to obtain the best overall execution for Fund transactions, which is a combination of price, quality
of execution, and other factors. The Advisor may, in its discretion, purchase and sell portfolio securities from and to brokers and dealers who provide the Advisor with brokerage, research, analysis, advice, and similar services, and the Advisor may
pay to these brokers and dealers, in return for such services, a higher commission or spread than may be charged by other brokers and dealers, provided that the Advisor determines in good faith that such commission is reasonable in terms either of
that particular transaction or of the overall responsibility of the Advisor to the Fund and its other clients and that the total commission paid by the Fund will be reasonable in relation to the benefits to the Fund and its other clients over the
long-term. The Advisor will promptly communicate to the officers and the trustees of the Trust such information relating to portfolio transactions as they may reasonably request.
(d) Books and Records. All books and records prepared and maintained by the
Advisor for the Fund under this Agreement shall be the property of the Trust and, upon request, the Advisor shall surrender to the Trust such of the books and records so requested.
(e) Compliance Procedures. The Advisor will, in accordance with Rule
206(4)-7 of the Investment Advisers Act of 1940, adopt and implement written policies and procedures reasonably designed to prevent violations of the Investment Advisers Act of 1940 and will provide the Trust with copies of such written policies and
procedures upon request.
(f) Code of Ethics. The Advisor has adopted a written code of ethics
complying with the requirements of Rule 17j-l under the Act and will provide the Trust with a copy of the code and evidence of its adoption. Within forty-five (45) days of the last calendar quarter of each year while this Agreement is in effect, the
Advisor will provide to the Board of Trustees of the Trust a written report that describes any issues arising under the code of ethics since the last report to the Board of Trustees, including, but not limited to, information about material
violations of the code and sanctions imposed in response to the material violations; and which certifies that the Advisor has adopted procedures reasonably necessary to prevent “access persons” (as that term is defined in Rule 17j-l) from violating
the code.
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3.
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COMPENSATION AND EXPENSES
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In exchange for its services and the payment of all expenses incurred by the Fund except for the (i) fee payment under this Agreement, (ii) brokerage fees and commissions,
(iii) acquired fund fees and expenses; (iv) fees and expenses associated with investments in other collective investment vehicles or derivative instruments (including for example option and swap fees and expenses); (v) borrowing costs (such as
interest and dividend expense on securities sold short); (vi) taxes; and (vii) extraordinary expenses, such as litigation expenses (which may include indemnification of Fund officers and Trustees and contractual indemnification of Fund service
providers (other than the Adviser or Sub-Adviser)), the Adviser will receive the fee set forth on Appendix A attached hereto, based on the average daily net assets of the Fund (the “Management Fee”). The Management Fee will be payable monthly in
arrears on the last business day of each calendar month. The Adviser may waive all or a portion of its fees with respect to the Fund.
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4.
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STATUS OF ADVISOR
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The services of the Advisor to the Fund are not to be deemed exclusive, and the Advisor shall be free to render similar services to others so long as its services to the Fund
are not impaired thereby; provided, however, that without providing written notice to the Trust’s Board of Trustees, the Advisor will not serve as investment advisor to any other registered investment company having a similar investment strategy to
that of the Fund. The 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 Trust in any way or otherwise be deemed an agent of the Trust.
Nothing in this Agreement shall limit or restrict the right of any director, officer, or employee of the Advisor, who may also be a trustee, officer, or employee of the Trust, to engage in any other business or to devote his or her time and attention
in part to the management or other aspects of any other business, whether of a similar nature or a dissimilar nature.
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5.
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RETENTION OF SUB-ADVISOR
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Subject to the Trust’s obtaining the initial and periodic approvals required under Section 15 of the Act, the Advisor may retain one or more sub-advisors, at the Advisor’s own
cost and expense, for the purpose of managing the investments of the assets of the Fund. Retention of one or more sub-advisors shall in no way reduce the responsibilities or obligations of the Advisor under this Agreement and the Advisor shall,
subject to Section 6 of this Agreement, be responsible to the Trust for all acts or omissions of any sub-advisor in connection with the performance of the Advisor’s duties hereunder.
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6.
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LIMITATION OF LIABILITY AND INDEMNIFICATION
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The Advisor assumes no responsibility under this Agreement other than to render the services called for hereunder. The Advisor shall not be liable for any error of judgment
or for any loss suffered by the Fund or Trust 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 or a loss resulting from
willful misfeasance, bad faith, or gross negligence on the part of the Advisor in the performance of its duties or from reckless disregard by the Advisor of its obligations and duties under this Agreement. It is agreed that the Advisor shall have no
responsibility or liability for the accuracy or completeness of the Trust’s registration statement under the Investment Company Act of 1940 or the Securities Act of 1933, except for information supplied by the Advisor for inclusion therein. The
Trust agrees to indemnify the Advisor to the full extent permitted by the Trust’s Declaration of Trust.
Any liability of the Advisor to the Fund shall not automatically impart liability on the part of the Advisor to any other series of the Trust. The Fund shall not be liable
for the obligations of any other series of the Trust, nor shall any other series of the Trust be liable for the obligations of the Fund. The limitations of liability provided under this section are not to be construed so as to provide for limitation
of liability for any liability (including liability under U.S. federal securities laws that, under certain circumstances, impose liability even on persons that act in good faith) to the extent (but only to the extent) that such limitation of
liability would be in violation of applicable law, but will be construed so as to effectuate the applicable provisions of this section to the maximum extent permitted by applicable law.
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7.
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LIABILITY OF SHAREHOLDERS
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Notice is hereby given that, as provided by applicable law, the obligations of or arising out of this Agreement are not binding upon any of the shareholders of the Fund
individually but are binding only upon the assets and property of the Fund and that the shareholders shall be entitled, to the fullest extent permitted by applicable law, to the same limitation on personal liability as shareholders of private
corporations for profit.
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8.
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REPRESENTATIONS AND WARRANTIES
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(a) Advisor’s Representations. The Advisor represents and warrants to the
Trust as follows: (i) the Advisor is a limited liability company duly organized and in good standing under the laws of the State of North Carolina 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 Securities and Exchange Commission under the Investment Advisers Act of 1940, and shall maintain such registration in effect at all times during the term of this
Agreement.
(b) Trust’s Representations. The Trust represents and warrants to the
Advisor as follows: (i) the Trust has been duly organized as a statutory trust under the laws of the State of Delaware and is authorized to enter into this Agreement and carry out its terms; (ii) the Trust is registered as an investment company with
the Securities and Exchange Commission under the Investment Company Act of 1940; and (iii) such registrations will be kept in effect during the term of this Agreement.
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9.
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NOTICE OF CHANGE IN CONTROL
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The Advisor is obligated to notify the Trust if there is a change in control of the Advisor at least thirty days prior to the effective date of the change, or as soon as practicable in the event
that thirty days’ notice is not possible.
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10.
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DURATION AND TERMINATION
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This Agreement shall remain in effect for an initial term of two years from the date the Fund commences operations, and from year to year thereafter provided such continuance
is approved at least annually by the vote of a majority of the trustees of the Trust who are not “interested persons” (as defined in the Investment Company Act of 1940) of the Trust, which vote must be cast in person at a meeting called for the
purpose of voting on such approval; provided that:
(a) The Trust may, at any time and without the payment of any penalty, terminate
this Agreement upon 60 calendar days’ written notice of a decision to terminate this Agreement by (i) the Trust’s trustees; or (ii) the vote of a majority of the outstanding voting securities of the Trust;
(b) This Agreement shall immediately terminate in the event of its assignment
(within the meaning of the Investment Company Act of 1940 and the rules thereunder); and
(c) The Advisor may, at any time and without the payment of any penalty, terminate
this Agreement upon 60 calendar days’ written notice to the Trust.
(d) The terms of paragraph 5 of this Agreement shall survive the termination of this
Agreement.
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11.
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AMENDMENT OR ASSIGNMENT OF AGREEMENT
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(a) Amendment. No provision of this Agreement may be changed, waived,
discharged, or terminated orally, but only by a written instrument signed by the party against which enforcement of the change, waiver, discharge or termination is sought. No material amendment of this Agreement shall be effective until approved by
vote of the holders of a majority of the Fund’s outstanding voting securities (as defined in the Investment Company Act of 1940).
(b) Assignment. The parties agree that assignment of this Agreement
constitutes a material breach, and further that this Agreement shall terminate automatically and immediately in the event of its assignment.
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12.
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MISCELLANEOUS
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(a) Headings. The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect.
(b) Use of Names. The Trust acknowledges that all rights to the name “Langar
Investment Management, LLC” belong to the Advisor, and the Trust is being granted a limited license to use such words in its name, the name of its series and the name of its classes of shares.
(c) 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.
(d) Applicable Law. This Agreement
shall be construed in accordance with, and governed by, the laws of the State of North Carolina.
(signatures on next page)
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REPRESENTATION OF SIGNATORIES. The undersigned expressly warrant and represent that they have full power and
authority to sign this Agreement on behalf of the party indicated and that their signature will bind the party indicated to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their officers designated below as of the day and year first above written.
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By:
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/s/ Xxxxxxxxx X. Honey
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| Xxxxxxxxx X. Honey, President | ||
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LANGAR INVESTMENT MANAGEMENT, LLC
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/s/ Xxxxx X. Xxx |
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| Xxxxx X. Xxx, Managing Member | ||
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Appendix A
COMPENSATION SCHEDULE
For the services delineated in this Agreement, the Advisor shall receive an investment advisory fee equal to an annualized rate of the average
daily net assets of the Fund as listed below. The fee shall be calculated as of the last business day of each month based upon the average daily net assets of the Trust determined in the manner described in the Trust’s Prospectus and Statement of
Additional Information.
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INVESTMENT ADVISORY FEE
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Langar Global HealthTech ETF
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0.85%
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By:
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/s/ Xxxxxxxxx X. Honey
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| Xxxxxxxxx X. Honey, President | ||
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LANGAR INVESTMENT MANAGEMENT, LLC
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/s/ Xxxxx X. Xxx |
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| Xxxxx X. Xxx, Managing Member | ||
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