EXHIBIT (d)(i)
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INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of this 30th day of September,
2003, by and between Tactical Allocation Services, LLC, a Colorado limited
liability company (the "Adviser"), and Agile Funds, Inc., a Maryland corporation
(the "Company"), regarding Agile Multi-Strategy Fund, a series of the Company
(the "Fund").
WHEREAS, the Fund proposes to register as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Board of Directors of the Company has approved this Agreement,
and the Adviser is willing to furnish certain investment advisory services upon
the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT OF INVESTMENT ADVISER. The Company desires to employ the
Fund's capital by investing and reinvesting in investments of the kind and in
accordance with the limitations specified in its Articles of Incorporation dated
February 12, 2003 (the "Articles"), and in its Prospectus as from time to time
in effect (the "Prospectus"), and in the manner and to the extent as may from
time to time be approved by the Board of Directors of the Company. The Company
desires to employ and hereby appoints the Adviser to act as investment adviser
to the Fund. The Adviser accepts the appointment and agrees to furnish the
services described herein for the compensation set forth below.
2. DELIVERY OF FUND DOCUMENTS. The Company has furnished the Adviser with
copies, properly certified or authenticated, of each of the following:
a. Articles of Incorporation;
b. Bylaws;
c. Resolutions of the Board of Directors of the Company selecting
Tactical Allocation Services, LLC as Adviser to the Fund and approving the form
of this Agreement; and
d. Fund Prospectus.
The Company will furnish the Adviser from time to time with copies,
properly certified or authenticated, of all amendments of or supplements to the
foregoing, if any.
3. SERVICES PROVIDED BY ADVISER. Subject to the supervision and direction
of the Board of Directors of the Company, the Adviser will, either directly or
by employing suitable Sub-Advisors, (a) act in strict conformity with the
Company's Articles of Incorporation, the Investment Company Act of 1940, as
amended (the "1940 Act") and the Investment Advisers Act of 1940, as amended,
(b) manage the Fund's portfolio and furnish a continual investment program for
the Fund in accordance with the Fund's investment objective and policies as
described in the Fund's Prospectus, (c) make investment decisions for the Fund,
(d) provide the Fund with investment research and statistical data, advice and
supervision, data processing and clerical services, (e) provide the Fund with
access to certain office facilities, which may be the Adviser's own offices, (f)
determine what securities shall be purchased for the Fund, what securities shall
be held or sold by the Fund, and allocate assets of the Fund to separate
sub-accounts of the approved Sub-Advisers, and determine what portion of the
Fund's assets shall be held uninvested, (g) review asset allocations and
investment policies with the Board of Directors of the Company every quarter,
and (h) advise and assist the officers of the Company in taking such steps as
are necessary or appropriate to carry out the decisions of the Board of
Directors of the Company and its committees with respect to the foregoing
matters and the conduct of the business of the Fund. In addition, the Adviser
will furnish the Company with whatever statistical information the Company may
reasonably request with respect to the securities that the Fund may hold or
contemplate purchasing. The appointment of Sub-Advisors shall be subject to
approval by the Board of Directors of the Company and, to the extent required by
the 1940 Act or any other law or regulation, approval of the shareholders of the
Company.
The Adviser will keep the Company informed of developments materially
affecting the Fund's portfolio, and will, on its own initiative, furnish the
Company from time to time with whatever information the Adviser believes is
appropriate for this purpose.
4. ALLOCATION OF CHARGES AND EXPENSES. The Adviser will make available,
without expense to the Fund, the services of such of its officers, directors and
employees as may be duly elected as officers or directors of the Company,
subject to the individual consent of such persons to serve and to any
limitations imposed by law. The Adviser will pay all expenses incurred in
performing its investment advisory services under this Agreement, including
compensation of and office space for officers and employees of the Adviser
connected with management of the Fund. The Adviser will not be required to pay
any investment advisory related expenses of the Fund other than those
specifically allocated to it in this paragraph 5. In particular, but without
limiting the generality of the foregoing, the Fund will be required to pay
brokerage and other expenses of executing portfolio transactions; taxes or
governmental fees; interest charges and other costs of borrowing funds;
litigation and indemnification expenses and other extraordinary expenses not
incurred in the ordinary course of the Fund's business.
5. COMPENSATION OF THE ADVISER. In consideration for the services to be
performed under this Agreement, the Adviser shall receive a management fee
payable monthly as soon as practicable after the last day of each month.
The annual rate for calculating the management fee shall be 2.5% of the
average net assets of the Fund (computed in the manner set forth in the
Company's Articles of Incorporation) determined as of the close of business on
each business day throughout the month.
In the event this Agreement terminates during any month, the management for
such month shall be reduced proportionately based on the number of business days
during which it is in effect during such month compared to the total number of
business days during such month. The management fee will be computed based on
and applied to net assets averaged over that portion of the month in which this
Agreement is in effect.
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6. SERVICES TO OTHER ACCOUNTS. The Company understands that the Adviser
acts as investment adviser to other managed accounts, and the Company has no
objection to the Adviser so acting, provided that whenever the Fund and one or
more other accounts advised by the Adviser are prepared to purchase or sell the
same security, available investments or opportunities for sales will be
allocated in a manner believed by the Adviser to be equitable to each entity.
The Company recognizes that in some cases this procedure may affect adversely
the price paid or received by the Fund or the size of the position purchased or
sold by the Fund. In addition, the Company understands that the persons employed
by the Adviser to provide service to the Fund in connection with the performance
of the Adviser's duties under this Agreement will not devote their full time to
that service. Moreover, nothing contained in this Agreement will be deemed to
limit or restrict the right of the Adviser or any "affiliated person" of the
Adviser to engage in and devote time and attention to other businesses or to
render services of whatever kind or nature to other persons or entities,
including serving as investment adviser to, or employee, officer, director or
trustee of, other investment companies.
7. BROKERAGE AND AVOIDANCE OF CONFLICTS OF INTEREST. In connection with
purchases or sales of portfolio securities for the account of the Fund, neither
the Adviser nor any of its trustees, officers or employees will act as a
principal or agent or receive any commission with respect to such purchases or
sales. The Adviser or its agents shall arrange for the placing of all orders for
the purchase and sale of portfolio securities for the Fund's account with
brokers or dealers selected by the Adviser. In the selection of such brokers or
dealers and the placing of such orders, the Adviser will use its best efforts to
seek for the Fund the most favorable execution and net price available and will
consider all factors it deems relevant in making such decisions including, but
not limited to, price (including any applicable brokerage commission or dealer
spread), size of order, difficulty of execution, and operational facilities of
the firm involved and the firm's risk in positioning a block of securities.
The parties agree that it is in the interests of the Fund that the Adviser
have access to supplemental investment and market research and security and
economic analyses provided by brokers who may execute brokerage transactions at
a higher cost to the Fund than may result when brokerage is allocated to other
brokers on the basis of the best price and execution. The Adviser is authorized
to place orders for the purchase and sale of securities for the Fund with such
brokers, subject to review by the Company's Board of Directors from time to
time. In selecting brokers or dealers to execute a particular transaction and in
evaluating the best price and execution available, the Adviser may consider the
brokerage and research services (as such terms are defined in Section 28(e) of
the Securities Exchange Act of 1934, as amended) provided to the Fund and/or
other accounts over which the Adviser exercises investment discretion.
8. STANDARD OF CARE; LIMITATION OF LIABILITY. The Adviser will exercise its
best judgment in rendering the services described herein. The Adviser shall not
be liable 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,
except a loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or from reckless disregard by the
Adviser of its obligations and duties under this Agreement, or a loss resulting
from a breach of fiduciary duty with respect to receipt of compensation for
services (in which case any award of damages shall be limited to the period and
amount set forth in Section 36(b)(3) of the 1940 Act). Any person, even though
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an officer, director, employee, or agent of the Adviser, who may be or become an
officer, director, employee or agent of the Company, will be deemed, when
rendering services to the Company or the Fund, to be rendering such services to,
or acting solely for, the Fund and not as an officer, director, employee or
agent, or one under the control or direction of the Adviser, even though paid by
it.
9. Voting. The Adviser will not be required to take any action or provide
any advice with respect to the voting of securities held by the Fund.
10. Duration and Termination of this Agreement. This Agreement shall remain
in force for an initial term of two years and from year to year thereafter, but
only so long as such continuance is specifically approved at least annually by
the vote of a majority of the members of the Board of Directors who are not
interested persons of the Adviser, cast in person at a meeting called for the
purpose of voting on such approval and by a vote of the Board of Directors or of
a majority of the outstanding voting securities of the Company. The requirement
that continuance of this Agreement be specifically approved at least annually
shall be construed in a manner consistent with the 1940 Act and the rules and
regulations thereunder. This Agreement may, on sixty (60) days, written notice,
be terminated at any time without the payment of any penalty, by the Board of
Directors of the Company, or by vote of a majority of the outstanding voting
securities of the Fund, or by the Adviser. This Agreement shall automatically
terminate in the event of its assignment. In interpreting the provisions of this
Agreement, the definitions contained in Section 2(a) of the 1940 Act
(particularly the definitions of "interested person", "assignment" and "majority
of the outstanding voting securities"), as from time to time amended, shall be
applied, subject, however, to such exemptions, as may be granted by the
Securities and Exchange Commission by any rule, regulation or order.
11. Amendment of this Agreement. A provision of this Agreement may be
amended, changed, waived, discharged or terminated only by an instrument in
writing signed by the party against whom enforcement of the amendment, change,
waiver, discharge or termination is sought, and no amendment of this Agreement
shall be effective until approved by vote of the holders of a majority of the
outstanding voting securities of the Fund and by the Board of Directors of the
Company, including a majority of the directors who are not interested persons of
the Adviser or of the Fund, cast in person at a meeting called for the purpose
of voting on such approval. Notwithstanding the foregoing, holders of the
Company's outstanding securities shall not be required to approve any amendment
to this Agreement if the Company has obtained an appropriate exemptive order
from the Securities and Exchange Commission under the 1940 Act.
12. Notice. Any notice, advice or report to be given pursuant to this
Agreement shall be delivered or mailed:
To the Adviser at:
Tactical Allocation Services, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX 00000
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To the Company and the Fund at:
Agile Funds, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX 00000
with a copy to:
Moye, Giles, X'Xxxxx, Xxxxxxxx & Xxxxxxx LLP
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
13. GOVERNING LAW. This Agreement constitutes the entire agreement of the
parties, shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and shall be governed by Colorado law in
a manner not in conflict with the provisions of the 1940 Act.
14. MISCELLANEOUS. Neither the holders of shares of the Fund nor the
officers or directors of the Company in their capacities as such shall be
personally liable hereunder. The captions in this Agreement are included for
convenience of reference only and in no way define or limit 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.
15. 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.
AGILE FUNDS, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President/CEO
TACTICAL ALLOCATION SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
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