INVESTMENT ADVISORY AGREEMENT
Exhibit (d)(4)
AGREEMENT made as of March 30, 2010, by and between Highland Capital Management, L.P., a
Delaware limited partnership (the “Adviser”), and Highland Funds I, a Delaware statutory
trust (the “Trust”), on behalf of its series listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a “Fund”).
WHEREAS, the Trust is engaged in business as an open-end management investment company and is
registered as such under the Investment Company Act of 1940, as amended (the “1940 Act”);
and
WHEREAS, the Adviser is engaged principally in the business of rendering investment management
services and is registered as an investment adviser under the Investment Advisers Act of 1940, as
amended;
NOW, THEREFORE, WITNESSETH: That it is hereby agreed between the parties hereto as follows:
| SECTION 1. Appointment of Adviser. |
The Trust hereby appoints the Adviser to act as manager and investment adviser to each Fund
for the period and on the terms herein set forth. The Adviser accepts such appointment and agrees
to render the services herein set forth, for the compensation herein provided.
| SECTION 2. Duties of Adviser. |
The Adviser, at its own expense, shall furnish the following services and facilities to each
Fund:
(a) Investment Program. The Adviser shall (i) furnish continuously an
investment program for each Fund, (ii) determine (subject to the overall supervision and
review of the Trust’s Board of Trustees) the investments to be purchased, held, sold or
exchanged by each Fund and the portion, if any, of the assets of the Fund to be held
uninvested, (iii) make changes in the investments of a Fund and (iv) vote, exercise consents
and exercise all other rights pertaining to such investments. The Adviser also shall manage,
supervise and conduct the other affairs and business of each Fund and matters incidental
thereto pursuant to a separate administration agreement with the Trust, subject always to
the control of the Trust’s Board of Trustees, and to the provisions of the organizational
documents of the Trust, the Registration Statement of the Trust with respect to each Fund
and its shares of beneficial interest (“Shares”), including each Fund’s prospectus(es) and
statement of additional information, and the 1940 Act, in each case as from time to time
amended and in effect. Subject to the foregoing, the Adviser shall have the authority to
engage one or more sub-advisers in connection with the portfolio management of a Fund, which
sub-advisers may be affiliates of the Adviser; provided, however, that the Adviser shall
remain responsible to the Trust with respect to its duties and obligations on behalf of each
Fund set forth in this Agreement.
(b) Portfolio Transactions. The Adviser shall place all orders for the purchase
and sale of portfolio securities for the account of each Fund with brokers or dealers
selected
by the Adviser, although the Fund will pay the actual brokerage commissions on
portfolio transactions in accordance with Section 3(d).
In placing portfolio transactions for a Fund, it is recognized that the Adviser will give
primary consideration to securing the most favorable price and efficient execution. Consistent with
this policy, the Adviser may consider the financial responsibility, research and investment
information and other services provided by brokers or dealers who may effect or be a party to any
such transaction or other transactions to which other clients of the Adviser may be a party. It is
understood that neither the Fund nor the Adviser has adopted a formula for allocation of a Fund’s
investment transaction business. It is also understood that it is desirable for the Funds that the
Adviser have access to supplemental investment and market research and security and economic
analysis provided by brokers who may execute brokerage transactions at a higher cost to a Fund than
would otherwise result when allocating brokerage transactions to other brokers on the basis of
seeking the most favorable price and efficient execution. Therefore, subject to Section 28(e) of
the Securities Exchange Act of 1934, the Adviser is authorized to place orders for the purchase and
sale of securities for a Fund with such brokers, subject to review by the Trust’s Board of Trustees
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 or beneficial to the Adviser in connection
with its services to other clients.
On occasions when the Adviser deems the purchase or sale of a security to be in the best
interest of a Fund as well as other clients, the Adviser, to the extent permitted by applicable
laws and regulations, may, but shall be under no obligation to, aggregate the securities to be so
sold or purchased in order to obtain the most favorable price or lower brokerage commissions and
efficient execution. In such event, allocation of the securities so purchased or sold, as well as
the expenses incurred in the transaction, will be made by the Adviser in the manner it considers to
be the most equitable and consistent with its fiduciary obligations to the Fund and to such other
clients.
SECTION 3. Allocation of Expenses.
Except for the services and facilities to be provided by the Adviser pursuant to a separate
administration agreement with the Trust, each Fund assumes and shall pay all expenses for all other
Fund operations and activities, and shall reimburse the Adviser for any such expenses incurred by
the Adviser. Unless the prospectuses or statements of additional information of the Fund provide
otherwise, the expenses to be borne by a Fund shall include, without limitation:
(a) all expenses of organizing the Fund;
(b) the charges and expenses of any registrar, stock transfer or dividend disbursing agent,
shareholder servicing agent, custodian or depository appointed by the Fund for the safekeeping of
its cash, portfolio securities and other property, including the costs of servicing shareholder
investment accounts, and bookkeeping, accounting and pricing services provided to the Fund (other
than those utilized by the Adviser in providing the services described in Section 2);
(c) the charges and expenses of bookkeeping, accounting and auditors;
(d) brokerage commissions and other costs incurred in connection with transactions in the
portfolio securities of the Fund, including any portion of such commissions attributable
to brokerage and research services as defined in Section 28(e) of the Securities Exchange
Act of 1934;
(e) taxes, including issuance and transfer taxes, and trust registration, filing or other
fees payable by the Fund to federal, state or other governmental agencies;
(f) expenses, including the cost of printing certificates, relating to the issuance of
Shares of the Fund;
(g) expenses involved in registering and maintaining registrations of the Fund and of its
Shares with the Securities and Exchange Commission (“SEC”) and various states and other
jurisdictions, including reimbursement of actual expenses incurred by the Adviser or others in
performing such functions for the Fund, and including compensation of persons who are employees
of the Adviser, in proportion to the relative time spent on such matters;
(h) expenses of shareholders’ and trustees’ meetings, including meetings of committees, and
of preparing, printing and mailing proxy statements, quarterly reports, if any, semi-annual
reports, annual reports and other communications to existing shareholders;
(i) expenses of preparing and printing prospectuses and marketing materials;
(j) compensation and expenses of trustees who are not affiliated with the Adviser;
(k) charges and expenses of legal counsel in connection with matters relating to the Fund,
including, without limitation, legal services rendered in connection with the Fund’s trust and
financial structure and relations with its shareholders, issuance of Shares of the Fund and
registration and qualification of Shares under federal, state and other laws;
(l) the cost and expense of maintaining the books and records of the Fund, including general
ledger accounting;
(m) insurance premiums on fidelity, errors and omissions and other coverages, including the
expense of obtaining and maintaining a fidelity bond as required by Section 17(g) of the
1940 Act which may also cover the Adviser;
(n) expenses incurred in obtaining and maintaining any surety bond or similar coverage with
respect to securities of the Fund;
(o) interest payable on Fund borrowings;
(p) such other non-recurring expenses of the Fund as may arise, including expenses of actions,
suits or proceedings to which the Trust on behalf of the Fund is a party and expenses resulting
from the legal obligation that the Trust on behalf of the Fund may have to provide indemnity with
respect thereto;
(q) expenses and fees reasonably incidental to any of the foregoing specifically identified
expenses; and
(r) all other expenses permitted by the prospectus(es) and statement of additional information
of the Fund as being paid by the Fund.
SECTION 4. Advisory Fee.
In return for its advisory services, each Fund will pay the Adviser a monthly fee, computed
and accrued daily, based on the annual rate set forth in Exhibit A hereto of each Fund’s “Average
Daily Managed Assets.” “Average Daily Managed Assets” of a Fund shall mean the average daily value
of the total assets of the Fund, less all accrued liabilities of the Fund (other than the aggregate
amount of any outstanding borrowings constituting financial leverage). The Adviser may waive a
portion of its fees. If this Agreement becomes effective subsequent to the first day of a month or
shall terminate before the last day of a month, compensation for such month shall be computed in a
manner consistent with the calculation of the fees payable on a monthly basis. Subject to the
provisions of Section 5 below, the accrued fees will be payable monthly as promptly as
possible after the end of each month during which this Agreement is in effect.
SECTION 5. Reimbursements.
The parties agree that they may negotiate from time to time for the Adviser to reimburse
certain costs and expenses of a Fund. If such an agreement is in effect, the determination of
whether reimbursement for such costs and expenses is due a Fund from the Adviser will be made on an
accrual basis once monthly, and if it is so determined that such reimbursement is due, the accrued
amount of such reimbursement that is due shall serve as an offset to the investment advisory fee
payable monthly by the Fund to the Adviser pursuant to Section 4 hereof, and the amount to
be paid by the Adviser to the Fund as soon as is practicable at the end of a fiscal year of the
Fund shall be equal to the difference between the aggregate reimbursement due the Fund from the
Adviser for that fiscal year and the aggregate offsets made by the Fund against the aggregate
investment advisory fees payable to the Adviser pursuant to Section 4 hereof for that
fiscal year by virtue of such aggregate reimbursement. The foregoing reimbursement of costs and
expenses shall exclude distribution and service fees, brokerage commissions, short sale dividend
and interest expense, taxes, organizational expenses, and extraordinary expenses (as determined by
the Board of the Trustees of the Funds in the exercise of its business judgment).
SECTION 6. Indemnification.
(a) The Trust hereby agrees to indemnify the Adviser and each of the Adviser’s partners,
officers, employees, and agents (including any individual who serves at the Adviser’s request as
director, officer, partner, trustee or the like of another corporation) and controlling persons
(each such person being an “Indemnitee”) against any liabilities and expenses, including
amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel
fees (all as provided in accordance with applicable state law) reasonably incurred by such
Indemnitee in connection with the defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or investigative body in which he may
be or may have been involved as a party or otherwise or with which he may be or may have been
threatened, while acting in any capacity set forth above in this paragraph or thereafter by reason
of his having acted in any such capacity, except with respect to any matter as to which he shall
have been adjudicated not to have acted in good faith in the reasonable belief that his action was
in the best interest of the Trust and furthermore, in the case of any criminal proceeding, so long
as he had no reasonable cause to believe that the conduct was unlawful, provided, however, that (1)
no Indemnitee shall be indemnified hereunder against any liability to the Trust or its shareholders
or any expense of such Indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith,
(iii) gross negligence (iv) reckless disregard of the duties involved in the conduct of his
position (the
conduct referred to in such clauses (i) through (iv) being sometimes referred to herein as
“Disabling Conduct”), (2) as to any matter disposed of by settlement or a compromise
payment by such Indemnitee, pursuant to a consent decree or otherwise, no indemnification either
for said payment or for any other expenses shall be provided unless there has been a determination
that such settlement or compromise is in the best interests of the Trust and that such Indemnitee
appears to have acted in good faith in the reasonable belief that his action was in the best
interests of the Trust and did not involve Disabling Conduct by such Indemnitee and (3) with
respect to any action, suit or other proceeding voluntarily prosecuted by any Indemnitee as
plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other
proceeding by such Indemnitee was authorized by a majority of the full Board of Trustees of the
Trust. Notwithstanding the foregoing, the Trust shall not be obligated to provide any such
indemnification to the extent such provision would waive any right that the Trust cannot lawfully
waive.
(b) The Trust shall make advance payments in connection with the expenses of defending any
action with respect to which indemnification might be sought hereunder if the Trust receives a
written affirmation of the Indemnitee’s good faith belief that the standard of conduct necessary
for indemnification has been met and a written undertaking to reimburse the Trust unless it is
subsequently determined that he is entitled to such indemnification and if the Trustees of the
Trust determine that the facts then known to them would not preclude indemnification. In addition,
at least one of the following conditions must be met: (1) the Indemnitee shall provide adequate
security for his undertaking, (2) the Trust shall be insured against losses arising by reason of
any lawful advances, (3) a majority of a quorum of Trustees of the Trust who are neither
“interested persons” of the Trust (as defined in Section 2(a)(19) of the 0000 Xxx) nor parties to
the proceeding (“Disinterested Non-Party Trustees”) or an independent legal counsel in a
written opinion, shall determine, based on a review of readily available facts (as opposed to a
full trial-type inquiry), that there is reason to believe that the Indemnitee ultimately will be
found entitled to indemnification or (4) if there is not a Disinterested Non-Party Trustee,
Indemnitee provides the written affirmation referred to above.
(c) All determinations with respect to indemnification hereunder shall be made (1) by a final
decision on the merits by a court or other body of competent jurisdiction before whom the
proceeding was brought that such Indemnitee is not liable by reason of Disabling Conduct or, (2) in
the absence of such a decision, by (i) a majority vote of a quorum of the Disinterested Non-Party
Trustees of the Trust, or (ii) if such a quorum is not obtainable or even if obtainable, if a
majority vote of such quorum so directs, independent legal counsel in a written opinion.
(d) Each Indemnitee shall, in the performance of its duties, be fully and completely
justified and protected with regard to any act or any failure to act resulting from reliance in
good faith upon the books of account or other records of the Trust, upon an opinion of counsel,
or upon reports made to the Trust by any of the Trust’s officers or employees or by any advisor,
administrator, manager, distributor, selected dealer, accountant, appraiser or other expert or
consultant selected with reasonable care by the Trustees, officers or employees of the Trust,
regardless of whether such counsel or other person may also be a Trustee.
(e) The rights accruing to any Indemnitee under these provisions shall not exclude any other
right to which he may be lawfully entitled.
SECTION 7. Relations with a Fund.
Subject to and in accordance with the organizational documents of the Adviser and the Trust,
as well as their policies and procedures and codes of ethics, it is understood that Trustees,
officers, agents and shareholders of a Fund are or may be interested in the Adviser (or any
successor thereof) as directors, officers or otherwise, that partners, officers and agents of the
Adviser (or any successor thereof) are or may be interested in a Fund as Trustees, officers,
agents, shareholders or otherwise, and that the Adviser (or any such successor thereof) is or may
be interested in a Fund as a shareholder or otherwise.
SECTION 8. Liability of Adviser.
The Adviser shall not be liable to a Fund for any error of judgment or mistake of law or for
any loss suffered by the Fund in connection with the matters to which this Agreement relates;
provided, however, that no provision of this Agreement shall be deemed to protect the Adviser
against any liability to a Fund or its shareholders to which it might otherwise be subject by
reason of any Disabling Conduct nor shall any provision hereof be deemed to protect any trustee or
officer of the Fund against any such liability to which he might otherwise be subject by reason of
any Disabling Conduct.
SECTION 9. Duration and Termination of this Agreement.
(a) Duration. This Agreement shall become effective with respect to the initial Funds
on Exhibit A on the date first set forth above, such date being the date on which this Agreement
has been executed following: (1) the approval of the Trust’s Board of Trustees, including approval
by a vote of a majority of the Trustees who are not “interested persons” (as defined in the 0000
Xxx) of the Adviser or the Funds, cast in person at a meeting called for the purpose of voting on
such approval; and (2) the approval by a “vote of a majority of the outstanding voting securities”
(as defined in the 0000 Xxx) of each Fund. Unless terminated as herein provided, this Agreement
shall remain in full force and effect until the date that is two years after the effective date of
this Agreement. Subsequent to such initial period of effectiveness, this Agreement shall continue
in full force and effect, subject to paragraph 9(c), so long as such continuance is
approved at least annually (a) by either the Trust’s Board of Trustees or by a “vote of a majority
of the outstanding voting securities” (as defined in the 0000 Xxx) of the Funds and (b) in either
event, by the vote of a majority of the Trustees of the Funds who are not parties to this Agreement
or “interested persons” (as defined in the 0000 Xxx) of any such party, cast in person at a meeting
called for the purpose of voting on such approval. With respect to each new Fund added to the
Agreement on or after the initial effective date, each such Fund shall have an initial term of up
to two years beginning on the date indicated on Exhibit A and thereafter, if not terminated, shall
continue in effect if approved at least annually as set forth above.
(b) Amendment. No provision of this Agreement may be amended, waived,
discharged or terminated orally, but only by an instrument in writing signed by the party against
which enforcement of the amendment, waiver, discharge or termination is sought. Any amendment of
this Agreement shall be subject to the 1940 Act including the interpretation thereof that
amendments that do not increase the compensation of the Adviser or otherwise fundamentally alter
the relationship of the Trust with the Adviser do not require shareholder approval if approved by
the requisite majority of the Trust’s Trustees who are not “interested persons” (as defined in the
0000 Xxx) of the Trust.
(c) Termination. This Agreement may be terminated at any time, without
payment of any
penalty, by vote of the Trust’s Board of Trustees, or by a “vote of a majority of the
outstanding voting securities” (as defined in the 0000 Xxx) of the Funds, or by the Adviser, in
each case on not more than 60 days’ nor less than 30 days’ prior written notice to the other party.
(d) Automatic Termination. This Agreement shall automatically and immediately
terminate in the event of its “assignment” (as defined in the 1940 Act).
SECTION 10. Services Not Exclusive.
The services of the Adviser to each Fund hereunder are not to be deemed exclusive, and the
Adviser (and its affiliates) shall be free to render similar services to others so long as its
services hereunder are not impaired thereby; provided, however, that the Adviser will undertake no
activities that, in its reasonable good faith judgment, will adversely affect the performance of
its obligations under this Agreement. In addition, the parties may enter into other agreements
pursuant to which the Adviser provides administrative or other, non-investment advisory services to
a Fund, and the Adviser may be compensated for such other services.
SECTION 11. Notices.
Notices under this Agreement shall be in writing and shall be addressed, and delivered or
mailed postage prepaid, to the other party at such address as such other party may designate from
time to time for the receipt of such notices. Until further notice to the other party, the address
of each party to this Agreement for this purpose shall be NexBank Tower, 00000 Xxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000.
SECTION 12. Governing Law; Severability; Counterparts.
This Agreement shall be construed in accordance with the laws of the State of Delaware and the
applicable provisions of the 1940 Act. To the extent that applicable law of the State of Delaware,
or any of the provisions herein, conflict with applicable provisions of the 1940 Act, the latter
shall control. 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 may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only one instrument.
SECTION 13. Miscellaneous.
The Adviser agrees to advise each Fund of any change of its membership (which shall mean its
general partner) within a reasonable time after such change. If the Adviser enters into a
definitive agreement that would result in a change of control (within the meaning of the 0000 Xxx)
of the Adviser, it agrees to give each Fund the lesser of 60 days’ written notice and such notice
as is reasonably practicable before consummating the transaction.
Where the effect of a requirement of the 1940 Act reflected in or contemplated by any
provisions of this Agreement is altered by a rule, regulation or order of the SEC, whether of
special or general application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first set forth above.
| HIGHLAND FUNDS I. | ||||||
| By: |
|
|||||
| Title: | ||||||
| HIGHLAND CAPITAL MANAGEMENT, L.P. | ||||||
| By: | STRAND ADVISORS, INC., | |||||
| its general partner | ||||||
| By: |
|
|||||
| Title: | ||||||
EXHIBIT A
Initial funds:
Portfolio |
Advisory Fee | |||
Highland All Cap Equity Value Fund |
0.75 | % | ||
