Exhibit 99(d)(3)(ii)
INTERIM ADVISORY AGREEMENT
ARISTATA EQUITY FUND
(A SERIES OF FINANCIAL INVESTORS TRUST)
THIS INTERIM ADVISORY AGREEMENT (the "Agreement") is made this as of the
1st day of July, 2004, between DENVER INVESTMENT ADVISORS LLC, a Colorado
limited liability company ("DIA"), 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 DIA deem it mutually advantageous that DIA 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 DIA as investment adviser
and manager with respect to the Fund for the period and on the terms set forth
in this Agreement. DIA 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, DIA 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 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 DIA, 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
DIA 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. DIA 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
(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 DIA.
3. FURTHER OBLIGATIONS. In all matters relating to the performance
of this Agreement, DIA 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 DIA 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 DIA 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 DIA 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 DIA with any further materials or information which
DIA may reasonably request to enable it to perform its function
under this Agreement; and
(d) To compensate DIA for its services in accordance with the
provisions of Section 5 hereof.
5. COMPENSATION. The Trust shall pay to DIA 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 DIA 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 DIA; 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 DIA. DIA shall pay all its own costs and
expenses incurred in rendering the services required under this Agreement.
In addition to such costs and expenses, DIA shall incur and pay reasonable
compensation, fees and related expenses of any of the Trust's officers or
Trustees who are interested persons of DIA.
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, DIA 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
most favorable prices and at reasonable commission rates, provided, however,
that DIA 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 DIA 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 DIA. DIA 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, DIA 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 DIA in placing portfolio
transactions for the Trust pursuant to the foregoing provisions. DIA 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 DIA. Whenever DIA
simultaneously places orders to purchase or sell the same security on behalf of
the Fund and one or more other clients of DIA, such orders will be allocated as
to price and amount among all such clients in a manner reasonably believed by
DIA 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 by the Trust's
Board of Trustees or a majority of the Fund's outstanding voting securities, at
any time, without the payment of any penalty, on not more than 10 calendar days'
written notice to DIA.
9. ASSIGNMENT. This Agreement shall terminate automatically in the
event of any assignment of this Agreement.
10. TERM. This Agreement shall continue in effect for 150 days from
the above written date.
11. ESCROW OF FEES
(a) Compensation earned under the contract will be held in an
interest-bearing escrow account with the Fund's custodian or a
bank;
(b) If a majority of the Fund's outstanding security voting
securities approve a contract with DIA by the end of the 150-day
period, the amount in the escrow account (including the interest
earned) will be paid to DIA; and
(c) If a majority of the Fund's outstanding voting securities do not
approve a contract with DIA, DIA will be paid, out of the escrow
account, the lesser of:
(1) Any costs incurred in performing the interim contract (plus
interest earned on that amount while in escrow); or
(2) The total amount in the escrowed account (plus interest
earned).
12. AMENDMENTS. This Agreement may be amended by the parties only if
such amendment is specifically approved (1) by a majority of the Trustees,
including a majority of the Trustees who are not interested persons of the Fund
or DIA and, (ii) if required by applicable law, by the affirmative vote of a
majority of the outstanding voting securities of the Fund.
13. 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.
14. 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.
15. LIMITATION OF LIABILITY OF DIA. DIA 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.
16. ACTIVITIES OF DIA. The services of DIA to the Trust hereunder are
not intended to be exclusive, and DIA 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 DIA 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
DIA as directors, officers and shareholders of DIA, that directors, officers,
employees and shareholders of DIA are or may become similarly interested in the
Trust, and that DIA may become interested in the Trust as a shareholder or
otherwise.
17. 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.
18. 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.
19. 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.
DENVER INVESTMENT ADVISORS LLC,
a Colorado limited liability company
By:
--------------------------------
Name:
Title:
FINANCIAL INVESTORS TRUST, with respect to
the Aristata Equity Fund
By:
--------------------------------
Name:
Title:
