FORM OF INVESTMENT ADVISORY AGREEMENT
Exhibit 28(d)(xx)
FORM OF
AGREEMENT made as of [_________], 2011, between FUNDVANTAGE TRUST, a Delaware
Statutory Trust (herein called the “Trust”) on behalf of each series of the Trust set forth on
Schedule A to this Agreement (each a “Fund” and, collectively, the “Funds”), and SNW ASSET
MANAGEMENT, 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 Funds;
WHEREAS, the Trust desires to retain the Investment Adviser to render certain investment
advisory services to the Funds, 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 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 Funds 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 Funds 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 Funds, 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 Funds including (i) the provision of a
continuous investment program for the Funds, including investment research and management with
respect to all securities, investments, cash and cash equivalents in the Funds, (ii) the
determination from time to time of what securities and other investments will be purchased,
retained, or sold for the Funds, and (iii) the placement from time to time of orders for all
purchases and sales made for the Funds. The Investment Adviser will provide the services rendered
by it hereunder in accordance with the Funds’ 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 Funds’ transactions and, where not otherwise available, the daily valuation of securities in
the Funds.
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 Funds, 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 Funds
directly or indirectly. Without limiting the generality of the foregoing, the Investment Adviser
is authorized to cause the Funds to pay brokerage commissions which may be in excess of the lowest
rates available to brokers who execute transactions for the Funds 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
Funds over a period of time on a fair and equitable basis relative to other clients. In no
instance will the Funds’ 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 Funds and the Investment Adviser’s other clients, that the total commissions paid by
the Funds were reasonable in relation to the benefits to the Funds 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 Funds’ securities transactions,
(ii) the utilization of “soft dollar commissions” by the Funds and the Investment Adviser with
respect to the Funds, and (iii) such other matters as the Board of Trustees may reasonably request.
SECTION 5. 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 6. 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 Funds 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 Funds. The Investment Adviser shall have no obligation to acquire for the
Funds 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 6 shall be interpreted consistent with the provisions of Section 17(i) of
the 1940 Act.
SECTION 7. 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 required to be maintained by Rule 3la-1
under the 1940 Act.
SECTION 8. 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 Funds shall
bear all of their own expenses not specifically assumed by the Investment Adviser. Expenses borne
by the Funds shall include, but are not limited to, the following (or each Fund’s share of the
following): (a) the cost (including brokerage commissions) of securities purchased or sold by the
Funds and any losses incurred in connection therewith; (b) fees payable to and expenses incurred on
behalf of the Funds by the Investment Adviser; (c) filing fees and expenses relating to the
registration and qualification of the Trust and the Funds’ 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 Funds 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 9. 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 Funds’ 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 10. RESERVATION OF NAME. The Investment Adviser shall at all times have all rights in
and to each Fund’s name and all investment models used by or on behalf of the Fund. The Investment
Adviser may use each 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 Funds, the name of each Fund will be changed to one that does not contain
the names “SNW Asset Management, LLC” or otherwise suggest an affiliation with the Investment
Adviser.
SECTION 11. COMPENSATION. For the services provided and the expenses assumed pursuant to this
Agreement with respect to the Funds, the Trust will pay the Investment Adviser from the assets of a
Fund and the Investment Adviser will accept as full compensation therefore from such 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. The fee attributable to each 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 Funds for all or a portion of its expenses not otherwise required to be borne or
reimbursed by the Investment Adviser.
SECTION 12. 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 Funds 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 Funds 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 Funds a written affirmation of its good faith belief that the standard of conduct
necessary for indemnification by the Funds 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 Funds for its undertaking; (b) the Funds are 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 Funds 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 Funds under this Section shall be satisfied only
against the assets of the Funds 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 each Fund’s name. The Investment Adviser shall indemnify and hold harmless the
Trust and the Funds for any claims arising from the use of the terms “SNW Asset Management, LLC” in
the name of the Funds.
SECTION 13. 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 Funds. 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 each Fund; PROVIDED, HOWEVER, that
this Agreement may be terminated with respect to any 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 14. 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 a 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 15. 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 16. 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 17. 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:
SNW Asset Management, LLC
Attn: [____]
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: [____]
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, 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
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 18. 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 19. 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: |
|
|||||
| Title: | President | |||||
| SNW ASSET MANAGEMENT, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: |
SCHEDULE A
DATED [__________], 2011
TO THE
INVESTMENT ADVISORY AGREEMENT DATED [__________] 2011
BETWEEN
FUNDVANTAGE TRUST AND SNW ASSET MANAGEMENT, LLC
Series of FundVantage Trust
SNW Oregon Short-Term Tax-Exempt Bond Fund
SCHEDULE B
DATED [__________], 2011
TO THE
INVESTMENT ADVISORY AGREEMENT DATED [__________], 2011
BETWEEN
FUNDVANTAGE TRUST AND SNW ASSET MANAGEMENT, LLC
Investment Advisory Fee Schedule
| Annual Fee as a Percentage of | ||||
| Fund | Fund’s Average Daily Net Assets | |||
SNW Oregon Short-Term
Tax-Exempt Bond Fund |
.45% (40 basis points) | |||
