EXHIBIT 23(D)(VII)
FORM OF
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of _____, 2009, 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
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 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) 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. 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"). 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 90 days' prior written notice to
the Trust. This Agreement will immediately terminate in the event of its
assignment.
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:
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
IF TO THE TRUST:
FundVantage Trust
Attn: Xxxx Xxxxx, President
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
WITH COPY TO:
Xxxxxx X. Del Xxxx, Esq.
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
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: Xxxx Xxxxx
Title: President
PEMBERWICK INVESTMENT ADVISORS LLC
By:
------------------------------------
Name:
Title:
SCHEDULE A
DATED _____, 2009
TO THE
INVESTMENT ADVISORY AGREEMENT DATED _____, 2009
BETWEEN
FUNDVANTAGE TRUST AND DELPHI MANAGEMENT, INC.
SERIES OF FUNDVANTAGE TRUST
Pemberwick Fund
SCHEDULE B
DATED _____, 2009
TO THE
INVESTMENT ADVISORY AGREEMENT DATED _____, 2009
BETWEEN
FUNDVANTAGE TRUST AND DELPHI MANAGEMENT, INC.
INVESTMENT ADVISORY FEE SCHEDULE
ANNUAL FEE AS A PERCENTAGE OF
FUND FUND'S AVERAGE DAILY NET ASSETS
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Pemberwick Fund 0.50% (50 basis points)
