INVESTMENT ADVISORY AGREEMENT
Exhibit 28(d)(vi)
AGREEMENT made as of January 31, 2010, between FUNDVANTAGE TRUST, a Delaware Statutory Trust
(herein called the “Trust”) on behalf of the series of the Trust set forth on Schedule A to this
Agreement (the “Fund”), and PEMBERWICK INVESTMENT ADVISORS, LLC (herein called the “Investment
Adviser”).
WHEREAS, the Trust is registered as an open-end management investment company under the
Investment Company Act of 1940 (the “1940 Act”), and currently offers or proposes to offer shares
representing interests in separate investment portfolios, including the Fund;
WHEREAS, the Trust desires to retain the Investment Adviser to render certain investment
advisory services to the Fund, and the Investment Adviser is willing to so render such services;
and
WHEREAS, the Board of Trustees of the Trust have approved this Agreement, and the Investment
Adviser is willing to furnish such services upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, and
intending to be legally bound hereby, it is agreed between the parties hereto as follows:
SECTION 1. APPOINTMENT. The Trust hereby appoints the Investment Adviser to act as investment adviser for the Fund for the
period and on the terms set forth in this Agreement. The Investment Adviser accepts such
appointment and agrees to render the services herein set forth for the compensation herein
provided.
SECTION 2. DELIVERY OF DOCUMENTS. The Trust has furnished or will furnish the Investment Adviser with copies of each of the
following:
a. Resolutions of the Board of Trustees of the Trust authorizing the appointment of the
Investment Adviser and the execution and delivery of this Agreement; and
b. Each prospectus and statement of additional information relating to any class of Shares
representing interests in the Fund in effect under the Securities Act of 1933 (such prospectus and
statement of additional information, as presently in effect and as they shall from time to time be
amended and supplemented, are herein collectively called the “Prospectus” and “SAI,” respectively).
The Trust will furnish the Investment Adviser from time to time with copies of all amendments
of or supplements to the foregoing, if any. In addition all copies of the resolutions
of the Board of Trustees or amendments or supplements thereof will, upon the Investment
Adviser’s request, be properly certified or authenticated.
In addition to the foregoing, the Trust will also provide the Investment Adviser with copies
of the Trust’s Agreement and Declaration of Trust and By-Laws, and any
registration statement or
service contracts related to the Fund, and will promptly furnish the Investment Adviser with any
amendments of or supplements to such documents.
SECTION 3. MANAGEMENT. Subject to the supervision of the Board of Trustees of the Trust, the Investment Adviser will
provide for the management of the Fund including (i) the provision of a continuous investment
program for the Fund, including investment research and management with respect to all securities,
investments, cash and cash equivalents in the Fund, (ii) the determination from time to time of
what securities and other investments will be purchased, retained, or sold for the Fund, and (iii)
the placement from time to time of orders for all purchases and sales made for the Fund. The
Investment Adviser will provide the services rendered by it hereunder in accordance with the Fund’s
investment objectives, restrictions and policies as stated in the applicable Prospectus and
Statement of Additional Information, provided that the Investment Adviser has notice or knowledge
of any changes by the Board of Trustees to such investment objectives, restrictions or policies.
The Investment Adviser further agrees that it will render to the Board of Trustees such periodic
and special reports regarding the performance of its duties under this Agreement as the Board may
reasonably request. The Investment Adviser agrees to provide to the Trust (or its agents and
service providers) prompt and accurate data with respect to the Fund’s transactions and, where not
otherwise available, the daily valuation of securities in the Fund.
SECTION 4. BROKERAGE. Subject to the Investment Adviser’s obligation to obtain best price and execution, the Investment
Adviser shall have full discretion to select brokers or dealers to effect the purchase and sale of
securities. When the Investment Adviser places orders for the purchase or sale of securities for
the Fund, in selecting brokers or dealers to execute such orders, the Investment Adviser is
expressly authorized to consider the fact that a broker or dealer has furnished statistical,
research or other information or services for the benefit of the Fund and, potentially, the
Investment Adviser’s other clients, directly or indirectly. Without limiting the generality of the
foregoing, the Investment Adviser is authorized to cause the Fund to pay brokerage commissions
which may be in excess of the lowest rates available to brokers who execute transactions for the
Fund or who otherwise provide brokerage and research services utilized by the Investment Adviser,
provided that the Investment Adviser determines in good faith that the amount of each such
commission paid to a broker is reasonable in relation to the value of the brokerage and research
services provided by such broker viewed in terms of either the particular transaction to which the
commission relates or the Investment Adviser’s overall responsibilities with respect to accounts as
to which the Investment Adviser exercises investment discretion. The Investment Adviser may
aggregate securities orders so long as the Investment Adviser adheres to a policy of allocating
investment opportunities to the Fund over a period of time on a fair and equitable basis relative
to other clients. In no instance will the Fund’s securities be purchased from or sold to
the Trust’s principal underwriter, the Investment Adviser, or any affiliated person thereof, except
to the extent permitted by SEC exemptive order or by applicable law.
The Investment Adviser shall report to the Board of Trustees of the Trust at least quarterly
with respect to brokerage transactions that were entered into by the Investment Adviser, pursuant
to the foregoing paragraph, and shall certify to the Board that the commissions paid were
reasonable in terms either of that transaction or the overall responsibilities of the Investment
Adviser to the Fund and the Investment Adviser’s other clients, that the total
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commissions paid by
the Fund were reasonable in relation to the benefits to the Fund, and potentially, the Investment
Adviser’s other clients, over the long term. Further, the Investment Adviser will disclose to the
Board of Trustees: (i) all material new or amended arrangements it may have with regard to the
Fund’ securities transactions, (ii) the utilization of “soft dollar commissions” by the Fund and
the Investment Adviser with respect to the Fund, and (iii) such other matters as the Board of
Trustees may reasonably request.
SECTION 5. DELEGATION OF INVESTMENT ADVISER’S OBLIGATIONS AND SERVICES. With respect to the Fund, the Investment Adviser may enter into one or more contracts
(“Sub-Advisory Agreement”) with a sub-adviser in which the Adviser delegates to such sub-adviser
any or all of its obligations or services specified in Sections 3 and 4 of this Agreement, provided
that each Sub-Advisory Agreement imposes on the sub-adviser bound thereby all the duties and
conditions the Adviser is subject to under this Agreement, and further provided that each
Sub-Advisory Agreement meets all requirements of the 1940 Act and rules thereunder.
SECTION 6. CONFORMITY WITH LAW; CONFIDENTIALITY. The Investment Adviser further agrees that it will comply with all applicable rules and regulations
of all federal regulatory agencies having jurisdiction over the Investment Adviser in the
performance of its duties hereunder. The Investment Adviser will treat confidentially and as
proprietary information of the Trust all records and other information relating to the Trust and
will not use such records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to and approval in writing
by the Trust, which approval shall not be unreasonably withheld and may not be withheld where the
Investment Adviser may be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities, or when so requested by
the Trust.
Where the Investment Adviser maybe exposed to civil or criminal contempt proceedings for
failure to comply with a request for records or other information relating to the Trust, the
Investment Adviser may comply with such request prior to obtaining the Trust’s written approval,
provided that the Investment Adviser has taken reasonable steps to promptly notify the Trust, in
writing, upon receipt of the request.
SECTION 7. SERVICES NOT EXCLUSIVE. The Investment Adviser and its officers may act and continue to act as investment managers for
others, and nothing in this Agreement shall in any way be deemed to restrict the right of the
Investment Adviser to perform investment management or other services for any other person or
entity, and the performance of such services for others shall not be deemed to violate or give rise
to any duty or obligation to the Fund or the Trust.
Nothing in this Agreement shall limit or restrict the Investment Adviser or any of its
partners, officers, affiliates or employees from buying, selling or trading in any securities for
its or their own account. The Trust acknowledges that the Investment Adviser and its partners,
officers, affiliates, employees and other clients may, at any time, have, acquire, increase,
decrease, or dispose of positions in investments which are at the same time being acquired or
disposed of for the Fund. The Investment Adviser shall have no obligation to acquire for the
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Fund
a position in any investment which the Investment Adviser, its partners, officers, affiliates or
employees may acquire for its or their own accounts or for the account of another client, so long
as it continues to be the policy and practice of the Investment Adviser not to favor or disfavor
consistently or consciously any client or class of clients in the allocation of investment
opportunities so that, to the extent practical, such opportunities will be allocated among clients
over a period of time on a fair and equitable basis.
The Investment Adviser agrees that this Section does not constitute a waiver by the Trust of
the obligations imposed upon the Investment Adviser to comply with Sections 17(d) and 17(j) of the
1940 Act, and the rules thereunder, nor constitute a waiver by the Trust of the obligations imposed
upon the Investment Adviser under Section 206 of the Investment Advisers Act of 1940 and the rules
thereunder. Further, the Investment Adviser agrees that this does not constitute a waiver by the
Trust of the fiduciary obligation of the Investment Adviser arising under federal or state law,
including Section 36 of the 1940 Act. The Investment Adviser agrees that this Section 7 shall be
interpreted consistent with the provisions of Section 17(i) of the 1940 Act.
SECTION 8. BOOKS AND RECORDS. In compliance with the requirements of Rule 3la-3 under the 1940 Act, the Investment Adviser hereby
agrees that all records which it maintains for the Fund are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the Trust’s request. The
Investment Adviser further agrees to preserve for the periods prescribed by Rule 3la-2 under the
1940 Act the records in the Investment Adviser’s possession required to be maintained by Rule 3la-1
under the 1940 Act.
SECTION 9. EXPENSES. During the term of this Agreement, the Investment Adviser will pay all expenses incurred by it in
connection with its activities under this Agreement. The Fund shall bear all of its own expenses
not specifically assumed by the Investment Adviser. Expenses borne by the Fund shall include, but
are not limited to, the following (or the Fund’s share of the following): (a) the cost (including
brokerage commissions) of securities purchased or sold by the Fund and any losses incurred in
connection therewith; (b) fees payable to and expenses incurred on behalf of the Fund by the
Investment Adviser; (c) filing fees and expenses relating to the registration and qualification of
the Trust and the Fund’s shares under federal and/or state securities laws and maintaining such
registrations and qualifications; (d) fees and salaries payable to the Trust’s directors and
officers; (e) taxes (including any income or franchise taxes) and governmental fees; (f) costs of
any liability and other insurance or fidelity bonds; (g) any costs, expenses or losses arising out
of a liability of or claim for damages or other relief asserted against the Trust or the Fund for
violation of any law; (h) legal, accounting and auditing expenses, including legal fees of special
counsel for the independent directors; (i) charges of custodians and other agents; (j) expenses of
setting in type and printing prospectuses, statements of additional information and supplements
thereto for existing shareholders, reports, statements, and confirmations to shareholders and proxy
material that are not attributable to a class; (k) costs of mailing prospectuses, statements of
additional information and supplements thereto to existing shareholders, as well as reports to
shareholders and proxy material that are not attributable to a class; (1) any extraordinary
expenses; (m) fees, voluntary assessments and other expenses incurred in connection with membership
in investment company organizations; (n) costs of mailing and tabulating proxies and costs of
shareholders’ and directors’ meetings; (o)
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costs of independent pricing services to value a
portfolio’s securities; and (p) the costs of investment company literature and other publications
provided by the Trust to its directors and officers. Distribution expenses, transfer agency
expenses, expenses of preparation, printing and mailing, prospectuses, statements of additional
information, proxy statements and reports to shareholders, and organizational expenses and
registration fees, identified as belonging to a particular class of the Trust are allocated to such
class.
SECTION 10. VOTING. The Investment Adviser shall have the authority to vote as agent for the Trust, either in person or
by proxy, tender and take all actions incident to the ownership of all securities in which the
Fund’s assets may be invested from time to time, subject to such policies and procedures as the
Board of Trustees of the Trust may adopt from time to time.
SECTION 11. RESERVATION OF NAME. The Investment Adviser shall at all times have all rights in and to the Fund’s name and all
investment models used by or on behalf of the Fund. The Investment Adviser may use the Fund’s name
or any portion thereof in connection with any other mutual Trust or business activity without the
consent of any shareholder and the Trust shall execute and deliver any and all documents required
to indicate the consent of the Trust to such use. The Trust hereby agrees that in the event that
neither the Investment Adviser nor any of its affiliates acts as investment adviser to the Fund,
the name of the Fund will be changed to one that does not contain the name “Pemberwick Investment
Advisors, LLC” or “Pemberwick” or otherwise suggest an affiliation with the Investment Adviser.
SECTION 12. COMPENSATION.
a. For the services provided and the expenses assumed pursuant to this Agreement with respect
to the Fund, the Trust will pay the Investment Adviser from the assets of the Fund and the
Investment Adviser will accept as full compensation therefore from the Fund a fee, computed daily
and payable monthly, at the annual rate as a percentage of average daily net assets set forth on
Schedule B to this Agreement. For any period less than a full month during which this Agreement is
in effect, the fee shall be prorated according to the proportion which such period bears to a full
month.
b. The fee attributable to the Fund shall be satisfied only against assets of such Fund and
not against the assets of any other investment portfolio of the Trust. The Investment Adviser may
from time to time agree not to impose all or a portion of its fee otherwise payable hereunder (in
advance of the time such fee or portion thereof would otherwise accrue) and/or undertake to pay or
reimburse the Fund for all or a portion of its expenses not otherwise required to be borne or
reimbursed by the Investment Adviser.
SECTION 13. LIMITATION OF LIABILITY. The Investment Adviser shall not be liable for any loss suffered by the Trust in connection with
the matters to which this Agreement relates, except a loss resulting from a breach of fiduciary
duty with respect to the receipt of compensation for services or a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the Investment Adviser in the performance
of its duties or from reckless disregard by it of its obligations and duties under this Agreement
(“disabling conduct”).
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The Fund will indemnify the Investment Adviser against and hold it harmless
from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling
conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final
decision on the merits by a court or other body before whom the proceeding was brought that the
Investment Adviser was not liable by reason of disabling conduct or (ii) in the absence of such a
decision, a reasonable determination, based upon a review of the facts, that the Investment Adviser
was not liable by reason of disabling conduct by (a) the vote of a majority of a quorum of
directors of the Trust who are neither “interested persons” of the Trust nor parties to the
proceeding (“disinterested non-party directors”) or (b) an independent legal counsel in a written
opinion. The Investment Adviser shall be entitled to advances from the Fund for payment of the
reasonable expenses incurred by it in connection with the matter as to which it is seeking
indemnification in the manner and to the fullest extent permissible under the Delaware Statutory
Trust Act. The Investment Adviser shall provide to the Fund a written affirmation of its good
faith belief that the standard of conduct necessary for indemnification by the Fund has been met
and a written undertaking to repay any such advance if it should ultimately be determined that the
standard of conduct has not been met. In addition, at least one of the following additional
conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount
acceptable to the Fund for its undertaking; (b) the Fund is insured against losses arising by
reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or
independent legal counsel, in a written opinion, shall have determined, based upon a review of
facts readily available to the Fund at the time the advance is proposed to be made, that there is
reason to believe that the Investment Adviser will ultimately be found to be
entitled to indemnification. Any amounts payable by the Fund under this Section shall be satisfied
only against the assets of the Fund and not against the assets of any other investment portfolio of
the Trust.
The limitations on liability and indemnification provisions of this Section shall not be
applicable to any losses, claims, damages, liabilities or expenses arising from the Investment
Adviser’s rights to the Fund’s name. The Investment Adviser shall indemnify and hold harmless the
Trust and the Fund for any claims arising from the use of the terms “Pemberwick Investment
Advisors, LLC” or “Pemberwick” in the name of the Fund.
SECTION 14. DURATION AND TERMINATION. This Agreement shall become effective and continue for an initial two year period as of the date
first above written unless sooner terminated as provided herein with respect to the Fund.
Thereafter, if not terminated, this Agreement shall continue for successive annual periods,
PROVIDED such continuance is specifically approved at least annually (a) by the vote of a majority
of those members of the Board of Trustees of the Trust who are not parties to this Agreement or
interested persons of any such party, cast in person at a meeting called for the purpose of voting
on such approval, and (b) by the Board of Trustees of the Trust or by vote of a majority of the
outstanding voting securities of the Fund; PROVIDED, HOWEVER, that this Agreement may be terminated
with respect to the Fund by the Trust at any time, without the payment of any penalty, by the Board
of Trustees of the Trust or by vote of a majority of the outstanding voting securities of a Fund,
on 60 days’ prior written notice to the Investment Adviser, or by the Investment Adviser at any
time, without payment of any penalty, on 60 days’ prior written notice to the Trust. This
Agreement will immediately terminate in the event of its assignment.
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SECTION 15. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be changed, discharged or terminated orally, except by an
instrument in writing signed by the party against which enforcement of the change, discharge or
termination is sought, and no amendment of this Agreement affecting the Fund shall be effective, to
the extent required by the 1940 Act, until the applicable shareholders of the Fund in the manner
required by the 1940 Act and the rules thereunder, subject to any applicable orders of exemption
issued by the Securities and Exchange Commission.
SECTION 16. MISCELLANEOUS. The captions in this Agreement are included for convenience of reference only and in no way define
or delimit any of the provisions hereof or otherwise affect their construction or effect. 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. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their respective successors
and shall be governed by Delaware law.
SECTION 17. DEFINITIONS. As used in this Agreement, the terms “affiliated person,” “assignment,” “interested person,”
“majority of the outstanding voting securities” and “principal underwriter” shall have the same
meaning as such terms have in the 1940 Act and the rules and regulations thereunder, subject to any
applicable orders of exemption issued by the Securities and Exchange Commission.
SECTION 18. NOTICE. All notices hereunder shall be given in writing and delivered by hand, national overnight courier,
facsimile (provided written confirmation of receipt is obtained and said notice is sent via first
class mail on the next business day) or mailed by certified mail, return receipt requested, as
follows:
If to the Investment Adviser:
Pemberwick Investment Advisors, LLC
Attn: Xxxxx X. Xxxxxx, President
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, President
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
If to the Trust:
With copy to:
Xxxxxx X. Del Xxxx, Esq.
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
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The effective date of any notice shall be (i) the date such notice is sent if such delivery is
effected by hand or facsimile, (ii) one business day after the date such notice is sent if such
delivery is effected by national overnight courier; or (iii) the third (3rd) business day after the
date of mailing thereof.
SECTION 19. GOVERNING LAW. This Agreement shall be governed by and construed and enforced in accordance with the laws of the
State of Delaware without giving effect to the conflicts of laws principles thereof.
SECTION 20. COUNTERPARTS. This Agreement may be executed 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
officers designated below as of the day and year first above written.
| FUNDVANTAGE TRUST | ||||||
| By: Name: |
/s/ Xxxx Xxxxx
|
|||||
| Title: | President | |||||
| PEMBERWICK INVESTMENT ADVISORS, LLC | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxx
|
|||||
| Title: | President | |||||
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SCHEDULE A
DATED JANUARY 31, 2010
TO THE
INVESTMENT ADVISORY AGREEMENT DATED JANUARY 31, 2010
BETWEEN
FUNDVANTAGE TRUST AND PEMBERWICK INVESTMENT ADVISORS, LLC.
Series of FundVantage Trust
Pemberwick Fund
SCHEDULE B
DATED JANUARY 31, 2010
TO THE
INVESTMENT ADVISORY AGREEMENT DATED JANUARY 31, 2010
BETWEEN
FUNDVANTAGE TRUST AND PEMBERWICK INVESTMENT ADVISORS, LLC.
Investment Advisory Fee Schedule
| Annual Fee as a Percentage of | ||
| Fund | Fund’s Average Daily Net Assets | |
Pemberwick Fund
|
0.50% (50 basis points) |
