INVESTMENT ADVISORY AGREEMENT
ARISTATA EQUITY FUND
(A SERIES OF FINANCIAL INVESTORS TRUST)
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this 20th day
of February, 1998, between TEMPEST, ISENHART, CHAFEE, LANSDOWNE & ASSOC., INC.,
a Colorado corporation ("Tempest Xxxxxxxx"), and FINANCIAL INVESTORS TRUST, a
Delaware business trust (the "Trust"), with respect to the ARISTATA EQUITY FUND,
a series of the Trust (the "Fund").
RECITALS
A. The Trust is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), and has
registered its shares for public offering under the Securities Act of 1933, as
amended (the "1933 Act").
B. The Trust is authorized to create separate series of shares, each with
its own separate investment portfolio, one of such series created by the Trust
being the Fund.
C. The Trust and Tempest Xxxxxxxx deem it mutually advantageous that
Tempest Xxxxxxxx should assist the Trustees and officers of the Trust in the
management of the securities portfolio of the Fund.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT. The Trust hereby appoints Tempest Xxxxxxxx as
investment adviser and manager with respect to the Fund for the period and on
the terms set forth in this Agreement. Tempest Xxxxxxxx hereby accepts such
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
2. INVESTMENT ADVISORY FUNCTIONS. In its capacity as investment
adviser to the Fund, Tempest Xxxxxxxx shall have the following duties and
responsibilities:
(a) To manage the investment operations of the Fund and the
composition of its investment portfolio, and to determine without
prior consultation with the Trust, what securities and other
assets of the Fund will be acquired, held, disposed of or loaned,
in conformity with the investment objective, policies and
restrictions and the other statements concerning the Fund in the
Trust's trust instrument, as amended from time to time (the
"Trust Instrument"), bylaws, and registration statements under
the 1940 Act and
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the 1933 Act, the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), the rules thereunder, and all other
applicable federal and state laws and regulations, and the
provisions of the Internal Revenue Code of 1986, as amended,
applicable to the Fund as a regulated investment company;
(b) To cause its officers to attend meetings and furnish oral or
written reports, as the Trustees may reasonably require, in order
to keep the Trustees and appropriate officers of the Trust fully
informed as to the condition of the investment portfolio of the
Fund, the investment decisions of Tempest Xxxxxxxx, and the
investment considerations which have given rise to those
decisions;
(c) To place orders for the purchase and sale of securities for
investments of the Fund and for other related transactions; to
give instructions to the custodian (including any subcustodian)
of the Fund as to deliveries of securities to and from such
custodian and receipt and payments of cash for the account of the
Fund, and advise the Trust on the same day such instructions are
given; to submit such reports relating to the valuation of the
Fund's assets and to otherwise assist in the calculation of the
net asset value of shares of the Fund as may reasonably be
requested; on behalf of the Fund, to exercise such voting rights,
subscription rights, rights to consent to corporate action and
any other rights pertaining to the Fund's assets that may be
exercised, in accordance with any policy pertaining to the same
that may be adopted or agreed to by the Trustees of the Trust,
or, in the event that the Trust retains the right to exercise
such voting and other rights, to furnish the Trust with advice as
to the manner in which such rights should be exercised;
(d) To maintain all books and records required to be maintained by
Tempest Xxxxxxxx pursuant to the 1940 Act and the rules and
regulations promulgated thereunder, as the same may be amended
from time to time, with respect to transactions on behalf of the
Fund, and shall furnish the Trustees with such periodic and
special reports as the Trustees reasonably may request. Tempest
Xxxxxxxx agrees that all records which it maintains for the Fund
are the property of the Trust, agrees to permit the reasonable
inspection thereof by the Trust or its designees and agrees to
preserve for the periods prescribed under the 1940 Act any
records which it maintains for the Fund and which are required to
be maintained under the 1940 Act, and further agrees to surrender
promptly to the Trust or its designees any records which it
maintains for the Trust upon request by the Trust; and
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(e) At such times as shall be reasonably requested by the Trustees,
to provide the Trustees with economic, operational and investment
data and reports, including without limitation all information
and materials reasonably requested by or requested to be
delivered to the Trustees of the Trust pursuant to Section 15(c)
of the 1940 Act, and make available to the Trustees any economic,
statistical and investment services normally available to similar
investment company clients of Tempest Xxxxxxxx.
3. FURTHER OBLIGATIONS. In all matters relating to the performance of
this Agreement, Tempest Xxxxxxxx shall act in conformity with the Trust's Trust
Instrument, bylaws and currently effective registration statements under the
1940 Act and the 1933 Act and any amendments or supplements thereto (the
"Registration Statements") and with the written policies, procedures and
guidelines of the Fund, and written instructions and directions of the Trustees
of the Trust and shall comply with the requirements of the 1940 Act, the
Advisers Act, the rules thereunder, and all other applicable federal and state
laws and regulations. The Trust agrees to provide Tempest Xxxxxxxx with copies
of the Trust's Trust Instrument, bylaws, Registration Statements, written
policies, procedures and guidelines, and written instructions and directions of
the Trustees, and any amendments or supplements to any of them at, or, if
practicable, before the time such materials become effective.
4. OBLIGATIONS OF TRUST. The Trust shall fulfill or cause its agents to
fulfill the following obligations under this Agreement:
(a) To keep Tempest Xxxxxxxx continuously and fully informed as to
the composition of the investment portfolio of the Fund and the
nature of all of the Fund's assets and liabilities from time to
time;
(b) To furnish Tempest Xxxxxxxx with a certified copy of any
financial statement or report prepared for the Fund by certified
or independent public accountants and with copies of any
financial statements or reports made to the Fund's shareholders
or to any governmental body or securities exchange;
(c) To furnish Tempest Xxxxxxxx with any further materials or
information which Tempest Xxxxxxxx may reasonably request to
enable it to perform its function under this Agreement; and
(d) To compensate Tempest Xxxxxxxx for its services in accordance
with the provisions of Section 5 hereof.
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5. COMPENSATION. The Trust shall pay to Tempest Xxxxxxxx for its
services under this Agreement a fee, payable in United States dollars, at an
annual rate of 0.85% of the average daily net asset value of the Fund. This fee
shall be computed and accrued daily and payable monthly on the last day of each
month during which or part of which this Agreement is in effect. For the month
during which this Agreement becomes effective and the month during which it
terminates, however, there shall be an appropriate proration of the fee payable
for such month based on the number of calendar days of such month during which
this Agreement is effective.
6. EXPENSES.
(a) EXPENSES PAID BY THE TRUST. The Trust assumes and shall pay all
expenses incidental to its operations and business not specifically assumed or
agreed to be paid by Tempest Xxxxxxxx hereunder or otherwise, including, but not
limited to, any compensation, fees or reimbursements which the Trust pays to its
Trustees who are not interested persons of Tempest Xxxxxxxx; compensation of the
Fund's custodian, transfer agent, registrar and dividend disbursing agent and
other service providers; legal, accounting, audit and printing expenses;
administrative, clerical, record keeping and bookkeeping expenses; brokerage
commissions and all other expenses in connection with execution of portfolio
transactions; interest; all federal, state and local taxes (including stamp,
excise, income and franchise taxes); costs of stock certificates and expenses of
delivering such certificates to the purchasers thereof; expenses of local
representation in Delaware; expenses of shareholders' meetings and of preparing,
printing and distributing proxy statements, notices, and reports to
shareholders; expenses of preparing and filing reports and tax returns with
federal and state regulatory authorities; all expenses incurred in complying
with all federal and state laws and the laws of any foreign country applicable
to the issue, offer or sale of shares of the Fund, including, but not limited
to, all costs involved in preparing, printing and mailing prospectuses and
statements of additional information to shareholders of the Fund; and all fees,
dues and other expenses incurred by the Trust in connection with the membership
of the Trust in any trade association or other investment company organization.
(b) EXPENSES PAID BY TEMPEST XXXXXXXX. Tempest Xxxxxxxx shall pay all its
own costs and expenses incurred in rendering the services required under this
Agreement. In addition to such costs and expenses, Tempest Xxxxxxxx shall incur
and pay reasonable compensation, fees and related expenses of any of the Trust's
officers or Trustees who are interested persons of Tempest Xxxxxxxx.
7. BROKERAGE COMMISSIONS. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from the Trust to the contrary, Tempest
Xxxxxxxx is authorized and directed to place Fund portfolio transactions only
with brokers and dealers who render satisfactory service in the execution of
orders at the
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most favorable prices and at reasonable commission rates, provided, however,
that Tempest Xxxxxxxx may pay a broker an amount of commission for effecting a
securities transaction in excess of the amount of commission another broker
would have charged for effecting that transaction if Tempest Xxxxxxxx determines
in good faith that such amount of commission was reasonable in relation to the
value of the brokerage and research services provided by such broker viewed in
terms of either that particular transaction or the overall responsibilities of
Tempest Xxxxxxxx. Tempest Xxxxxxxx is also authorized to consider sales of Fund
shares as a factor in selecting broker-dealers to execute Fund portfolio
transactions. In placing portfolio business with such broker-dealers, Tempest
Xxxxxxxx shall seek the best execution of each transaction. Notwithstanding the
foregoing, the Trustees of the Trust may establish policies or guidelines to be
followed by Tempest Xxxxxxxx in placing portfolio transactions for the Trust
pursuant to the foregoing provisions. Tempest Xxxxxxxx shall report on the
placement of portfolio transactions in the prior fiscal quarter at each
quarterly meeting of such Trustees. To the extent consistent with applicable
law, purchase or sell orders for the Fund may be aggregated with simultaneous
purchase or sell orders for other clients of Tempest Xxxxxxxx. Whenever Tempest
Xxxxxxxx simultaneously places orders to purchase or sell the same security on
behalf of the Fund and one or more other clients of Tempest Xxxxxxxx, such
orders will be allocated as to price and amount among all such clients in a
manner reasonably believed by Tempest Xxxxxxxx to be fair and equitable to each
client. The Trust recognizes that in some cases, this procedure may adversely
affect the results obtained for the Fund.
8. TERMINATION. This Agreement may be terminated at any time, without
penalty, by the Trustees of the Trust, or by the shareholders of the Fund acting
by vote of at least a majority of its outstanding voting securities, provided in
either case that sixty (60) days' advance written notice of termination be given
to Tempest Xxxxxxxx at its principal place of business. This Agreement may be
terminated by Tempest Xxxxxxxx at any time, without penalty, by giving sixty
(60) days' advance written notice of termination to the Trust, addressed to its
principal place of business. The Trust agrees that, the name "Aristata" is the
property of Tempest Xxxxxxxx, and that the Trust is using such name in the name
of the Fund with the permission of Tempest Xxxxxxxx, and that the Trust shall
cease to use the name Aristata in connection with the Fund as soon as reasonably
practicable following any termination of this Agreement if Tempest Xxxxxxxx does
not continue to provide investment advice to the Fund after such termination.
9. ASSIGNMENT. This Agreement shall terminate automatically in the event
of any assignment of this Agreement.
10. TERM. This Agreement shall continue in effect until February 19,
2000, unless sooner terminated in accordance with its terms, and shall
continue in effect from year to year thereafter only so long as such
continuance is specifically approved at least annually by the vote of a
majority of the Trustees of the Trust who are not parties hereto or
interested persons of any such party, cast in person at a meeting called for
the purpose of voting on the approval of the terms
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of such renewal, and by either the Trustees of the Trust or the affirmative vote
of a majority of the outstanding voting securities of the Fund.
11. AMENDMENTS. This Agreement may be amended by the parties only if such
amendment is specifically approved (i) by a majority of the Trustees, including
a majority of the Trustees who are not interested persons of the Fund or Tempest
Xxxxxxxx and, (ii) if required by applicable law, by the affirmative vote of a
majority of the outstanding voting securities of the Fund.
12. ALLOCATION OF EXPENSES. The Trustees shall determine the basis for
making an appropriate allocation of the Trust's expenses (other than those
directly attributable to the Fund) between the Fund and any other series of the
Trust.
13. LIMITATION ON PERSONAL LIABILITY. NOTICE IS HEREBY GIVEN that the
Trust is a business trust organized under the Delaware Business Trust Act
pursuant to a Certificate of Trust filed in the office of the Secretary of State
of the State of Delaware. All parties to this Agreement acknowledge and agree
that the Trust is a series trust and all debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular series shall be enforceable against the assets held with respect to
such series only, and not against the assets of the Trust generally or against
the assets held with respect to any other series and further that no trustee,
officer or holder of shares of beneficial interest of the Trust shall be
personally liable for any of the foregoing.
14. LIMITATION OF LIABILITY OF TEMPEST XXXXXXXX. Tempest Xxxxxxxx shall
not be liable for any error of judgment or mistake of law or for any loss
arising out of any investment or for any act or omission taken with respect to
the Fund, except for willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties hereunder and except to the extent otherwise provided by law.
15. ACTIVITIES OF TEMPEST XXXXXXXX. The services of Tempest Xxxxxxxx to
the Trust hereunder are not intended to be exclusive, and Tempest Xxxxxxxx and
its affiliates are free to render services to other parties, so long as its
services under this Agreement are not materially adversely affected or otherwise
impaired thereby. Nothing in this Agreement shall limit or restrict the right
of any director, officer or employee of Tempest Xxxxxxxx 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. It is understood that trustees, officers and shareholders of the Trust
are or may become interested in Tempest Xxxxxxxx as directors, officers and
shareholders of Tempest Xxxxxxxx, that directors, officers, employees and
shareholders of Tempest Xxxxxxxx are or may become similarly interested in the
Trust, and that Tempest Xxxxxxxx may become interested in the Trust as a
shareholder or otherwise.
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16. CERTAIN DEFINITIONS. The terms "vote of a majority of the outstanding
voting securities", "assignment", "approved at least annually" and "interested
persons" when used herein, shall have the respective meanings specified in the
1940 Act, as now in effect or hereafter amended, and the rules and regulations
thereunder, subject to such orders, exemptions and interpretations as may be
issued by the Securities and Exchange Commission under said Act and as may be
then in effect. Where the effect of a requirement of the federal securities
laws reflected in any provision of this Agreement is made less restrictive by a
rule, regulation, order, interpretation or other authority of the Securities and
Exchange Commission, whether of special or general application, such provision
shall be deemed to incorporate the effect of such rule, regulation, order,
interpretation or other authority.
17. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Colorado (without giving effect to the conflicts of
laws principles thereof) and the 1940 Act. To the extent that the applicable
laws of the State of Colorado conflict with the applicable provisions of the
1940 Act, the latter shall control.
18. MISCELLANEOUS. The headings in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions thereof 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.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Investment Advisory Agreement as of the date and year first
above written.
TEMPEST, ISENHART, CHAFEE, LANSDOWNE
& ASSOC., INC.
By: /s/ H. Xxxxx Xxxxxxxxx
------------------------
H. Xxxxx Xxxxxxxxx
President
FINANCIAL INVESTORS TRUST, with respect to
the Aristata Equity Fund
By: /s/ Xxxxxxx Xxxxxx
------------------------
Vice President
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