INVESTMENT ADVISORY AGREEMENT
Exhibit (d)(iv)
AGREEMENT made as of June 18, 2008, 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 PIEDMONT 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 (the “Board of Trustees”) has 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 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, 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 SAI,
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 of Trustees 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
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 Securities and Exchange
Commission (“SEC”) exemptive order or by applicable law.
The Investment Adviser shall report to the Board of Trustees 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 of Trustees 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 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. 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 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 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 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 trustees 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 trustees; (i) charges of
custodians and other agents; (j) expenses of setting in type and printing prospectus, 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 trustees’ meetings; (o) costs of independent pricing services to value the Fund’s
portfolio securities; and (p) the costs of investment company literature and other publications
provided by the Trust to its trustees 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 Fund are allocated to such
class.
SECTION 9. VOTING. The Investment Adviser shall have the authority to vote as agent for the Fund,
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 may adopt from time to time.
SECTION 10. 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 fund 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 “Piedmont Investment Advisors, LLC” or otherwise suggest an affiliation with the
Investment Adviser.
SECTION 11. COMPENSATION.
a. 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 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 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 trustees
of the Trust who are neither interested persons of the Trust nor parties to the proceeding
(“disinterested
non-party trustees”) 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 trustees, 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 “Piedmont Investment Advisors,
LLC” or “Piedmont Investment Advisors” in the name of the Fund.
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 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 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 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 or by vote of a majority of the outstanding voting securities of the 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 the Fund shall be effective, to the extent required by the 1940 Act, until the applicable
shareholders of the Fund approve such amendment in the manner required by the 1940 Act and the
rules thereunder, subject to any applicable orders of exemption issued by the SEC.
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 SEC.
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:
Piedmont Investment Advisors, LLC
Attn: Xxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx Xxxxxxxx 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) three business days 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: |
/s/ Xxxx Xxxxx
|
|||||
Title: | President | |||||
PIEDMONT INVESTMENT ADVISORS, LLC | ||||||
By: | /s/ Sumali Sanyal | |||||
Name: | Sumali Sanyal | |||||
Title: | Executive Vice President |
SCHEDULE A
DATED JUNE 18, 2008
TO THE
TO THE
INVESTMENT ADVISORY AGREEMENT DATED JUNE 18, 2008
BETWEEN
FUNDVANTAGE TRUST AND PIEDMONT INVESTMENT ADVISORS, LLC
BETWEEN
FUNDVANTAGE TRUST AND PIEDMONT INVESTMENT ADVISORS, LLC
SCHEDULE B
DATED JUNE 18, 2008
TO THE
INVESTMENT ADVISORY AGREEMENT DATED JUNE 18, 2008
BETWEEN
FUNDVANTAGE TRUST AND PIEDMONT INVESTMENT ADVISORS, LLC
Investment Advisory Fee Schedule
Annual Fee as a Percentage of | ||
Fund | Fund’s Average Daily Net Assets | |
Corverus Strategic Equity Fund
|
0.65% (65 basis points) |