INTERIM INVESTMENT MANAGEMENT CONTRACT BETWEEN HILLVIEW INVESTMENT TRUST II AND HILLVIEW CAPITAL ADVISORS, LLC
Exhibit
EX-99.d.10
BETWEEN
AND
HILLVIEW
CAPITAL ADVISORS, LLC
Contract
made as of March 31, 2005, between Hillview Investment Trust II, a Delaware
business trust (“Trust”), on behalf of Hillview Alpha Fund and Hillview
International Alpha (each a “Fund” and collectively the “Funds”), and Hillview
Capital Advisors, LLC, a Delaware limited liability company (the
“Adviser”).
WHEREAS
the Trust is registered under the Investment Company Act of 1940, as amended
(“1940 Act”), as an open-end management investment company; and
WHEREAS
the Trust currently consists of three series - Hillview Alpha Fund, Hillview
International Alpha Fund and REMS Real Estate Value-Opportunity Fund;
and
WHEREAS
the Trust hereafter may establish additional series of its shares of beneficial
interest; and
WHEREAS
the Trust desires to retain Adviser as investment manager to furnish certain
investment advisory and portfolio management services to the Trust and the
Funds
set forth on Appendix A, and Adviser is willing to furnish such
services;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, it is agreed between the parties hereto as follows:
1. Appointment.
The
Trust hereby appoints Adviser as investment manager for the period and on the
terms set forth in this Contract. Adviser accepts such appointment and agrees
to
render the services herein set forth, for the compensation herein provided.
2. Duties
as Investment Manager.
(a) Subject
to the supervision of the Trust’s Board of Trustees (“Board”), Adviser will
provide a continuous investment program for each Fund, including investment
research and management with respect to all securities and investments and
cash
equivalents in the Fund. Adviser will determine from time to time what
securities and other investments will be purchased, retained or sold by the
Fund, and the brokers and dealers through whom trades will be executed. The
Adviser may delegate to one or more sub-advisers, in whole or in part, its
duty
to provide a continuous investment management program with respect to any Fund,
including the provision of investment management services with respect to a
portion of the Fund’s assets, in accordance with Paragraph 4 of this
Contract.
(b) Adviser
agrees that in placing orders with brokers and dealers it will attempt to obtain
the best net results in terms of price and execution. Consistent with this
obligation Adviser may, in its discretion, purchase and sell portfolio
securities to and from brokers and dealers who sell shares of the Fund or
provide the Trust or Adviser’s other clients with research, analysis, advice and
similar services. Adviser may pay to brokers and dealers, in return for research
and analysis, a higher commission or spread than may be charged by other brokers
and dealers, subject to Adviser’s determining in good faith that such commission
or spread is reasonable in terms either of the particular transaction or of
the
overall responsibility of Adviser to such Fund and its other clients and that
the total commissions or spreads paid by such Fund will be reasonable in
relation to the benefits to the Fund over the long term. In no instance will
portfolio securities be
1
purchased
from or sold to Adviser or any affiliated person thereof except in accordance
with the federal securities laws and the rules and regulations thereunder and
any exemptive orders currently in effect. Whenever Adviser simultaneously places
orders to purchase or sell the same security on behalf of a Fund and one or
more
other accounts advised by Adviser, such orders will be allocated as to price
and
amount among all such accounts in a manner believed to be equitable to each
account. The Trust recognizes that in some cases this procedure may adversely
affect the results obtained for the Fund.
(c) Adviser
will oversee the maintenance of all books and records with respect to the
securities transactions of each Fund, and will furnish the Board with such
periodic and special reports as the Board reasonably may request. In compliance
with the requirements of Rule 31a-3 under the 1940 Act, Adviser hereby agrees
that all records which it maintains for the Trust are the property of the Trust,
agrees to preserve for periods prescribed by Rule 31a-2 under the 1940 Act
any
records which it maintains for the Trust and which are required to be maintained
by Rule 31a-1 under the 1940 Act, and further agrees to surrender promptly
to
the Trust any records which it maintains for Trust upon request by the
Trust.
(d) Adviser
will oversee the computation of the net asset value and the net income of each
Fund as described in the currently effective registration statement of the
Trust
under the Securities Act of 1933, as amended, and the 1940 Act and any
supplements thereto (“Registration Statement”) or as more frequently requested
by the Board.
3. Further
Duties.
In all
matters relating to the performance of this Contract, Adviser will act in
conformity with the Agreement and Declaration of Trust, By-Laws and Registration
Statement of the Trust and with the instructions and directions of the Board
and
will comply with the requirements of the 1940 Act, the rules thereunder, and
all
other applicable federal and state laws and regulations.
4. Delegation
of Adviser’s Duties as Investment Manager.
With
respect to the Trust and each Fund, Adviser may enter into one or more contracts
(“Sub-Advisory Contract”) with sub-advisers in which Adviser delegates to such
sub-advisers the performance of any or all of the services specified in
Paragraph 2 of this Contract, provided that: (i) each Sub-Advisory Contract
imposes on the sub-adviser bound thereby all the corresponding duties and
conditions to which Adviser is subject with respect to the delegated services
under Paragraphs 2 and 3 of this Contract; (ii) each Sub-Advisory Contract
meets
all requirements of the 1940 Act and rules thereunder, and (iii) Adviser shall
not enter into a Sub-Advisory Contract unless it is approved by the Board prior
to implementation.
5. Services
Not Exclusive. The
services furnished by Adviser hereunder are not to be deemed exclusive and
Adviser shall be free to furnish similar services to others so long as its
services under this Contract are not impaired thereby. Nothing in this Contract
shall limit or restrict the right of any director, officer or employee of
Adviser, who may also be a Trustee, officer or employee, of the Trust, 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.
6. Expenses.
(a) During
the term of this Contract, each Fund will bear all expenses, not specifically
assumed by Adviser.
(b) Expenses
borne by each Fund will include but not be limited to the following: (i) all
direct charges relating to the purchase and sale of portfolio securities,
including the cost (including brokerage commissions, if any) of securities
purchased or sold by the Fund and any
2
losses
incurred in connection therewith; (ii) fees payable to and expenses incurred
on
behalf of the Fund by Adviser under this Contract; (iii) fees, and other
compensation and expenses of the Sub-Advisors pursuant to Sub-Advisory Contracts
approved by the Trust; (iv) investment consulting fees and related costs; (v)
expenses of organizing the Trust and the Fund; (vi)
expenses of preparing and filing reports and other documents with governmental
and regulatory agencies; (vii) filing fees and expenses relating to the
registration and qualification of the Fund’s shares and the Trust under federal
and/or state securities laws and maintaining such registrations and
qualifications; (viii) costs incurred in connection with the issuance, sale
or
repurchase of the Fund’s shares of beneficial interest; (ix) fees and salaries
payable to the Trust’s Trustees who are not parties to this Contract or
interested persons of any such party (“Independent Trustees”); (x) all expenses
incurred in connection with the Independent Trustees’ services, including travel
expenses; (xi) taxes (including any income or franchise taxes) and governmental
fees; (xii) costs of any liability, uncollectible items of deposit and other
insurance and fidelity bonds; (xiii) any costs, expenses or losses arising
out
of a liability of or claim for damages or other relief asserted against the
Trust or Fund for violation of any law; (xiv) interest charges; (xv) legal,
accounting and auditing expenses, including legal fees of special counsel for
the Independent Trustees; (xvi) charges of custodians, transfer agents, pricing
agents and other agents; (xvii) expenses of disbursing dividends and
distributions; (xviii) expenses of setting in type, printing and mailing
reports, notices and proxy materials for existing shareholders; (xix) any
extraordinary expenses (including fees and disbursements of counsel, costs
of
actions, suits or proceedings to which the Trust is a party and the expenses
the
Trust may incur as a result of its legal obligation to provide indemnification
to its officers, Trustees, employees and agents) incurred by the Trust or Fund;
(xx) fees, voluntary assessments and other expenses incurred in connection
with
membership in investment company organizations; (xxi) costs of mailing and
tabulating proxies and costs of meetings of shareholders, the Board and any
committees thereof; (xxii) the cost of investment company literature and other
publications provided by the Trust to its Trustees and officers; and (xxiii)
costs of mailing, stationery and communications equipment.
(c) Adviser
will assume the cost of any compensation for services provided to the Trust
received by the officers of the Trust and by the Interested
Trustees.
(d) The
payment or assumption by Adviser of any expense of the Trust or a Fund that
Adviser is not required by this Contract to pay or assume shall not obligate
Adviser to pay or assume the same or any similar expense of the Trust or a
Fund
on any subsequent occasion.
7. Compensation.
(a) All
compensation earned by the Adviser under this Contract shall be held in an
interest-bearing escrow account with the custodian of the Funds’ assets or a
bank. If the majority of the a Fund’s outstanding voting securities approve a
new investment management contract with the Adviser by the end of the 150 day
period that this Contract is effective, the Adviser will be paid the amount
in
the escrow account (including interest earned). If a majority of a Fund’s
outstanding voting securities do not approve a new investment management
contract with the Adviser, the Adviser will be paid, out of the escrow account
the lesser of (i) Adviser’s costs incurred in performing this Contract (plus
interest earned on that amount while in escrow) or (ii) the total amount in
the escrow account (plus interest earned).
(b)
Subject
to the provisions above, the
compensation of the Adviser for its services provided
to each Fund listed in Appendix A under this Contract shall be an annual fee,
payable monthly, based upon the Fund’s average daily assets as set forth in
Appendix B. Such compensation shall be paid solely from the assets of the Fund.
3
(c) The
fee
shall be computed daily and paid monthly to Adviser on or before the last
business day of the next succeeding calendar month.
(d) If
this
Contract becomes effective or terminates before the end of any month, the fee
for the period from the effective date to the end of the month or from the
beginning of such month to the date of termination, as the case may be, shall
be
prorated according to the proportion which such period bears to the full month
in which such effectiveness or termination occurs.
8. Limitation
of Liability of Adviser and Indemnification.
Adviser
and its delegates, including any sub-adviser to any Fund or the Trust, shall
not
be liable and the Trust shall indemnify Adviser and its directors, officers
and
employees, for any costs or liabilities arising from any error of judgment
or
mistake of law or any loss suffered by any Fund, the Trust or any of its
shareholders, in connection with the matters to which this Contract relates
except a loss resulting from willful misfeasance, bad faith or gross negligence
on the part of Adviser in the performance by Adviser of its duties or from
reckless disregard by Adviser of its obligations and duties under this Contract.
Any person, even though also an officer, partner, employee, or agent of Adviser,
who may be or become an officer, Trustee, employee or agent of the Trust shall
be deemed, when rendering services to any Fund or the Trust or acting with
respect to any business of such Fund or the Trust, to be rendering such service
to or acting solely for the Fund or the Trust and not as an officer, partner,
employee, or agent or one under the control or direction of Adviser even though
paid by it.
9. Duration
and Termination.
(a) This
Contract shall become effective upon the date first above written, provided
that
this Contract has been approved by a vote of a majority of those Trustees of
the
Trust who are not parties of this Agreement or interested persons of any such
party cast in person at a meeting called for the purpose of voting such
approval.
(b) Unless
sooner terminated as provided herein, this Contract shall continue in effect
for
a period of 150 days after the day and year first above written.
(c) Notwithstanding
the foregoing, with respect to the Trust this Contract may be terminated at
any
time, without the payment of any penalty, by vote of the Board or by a vote
of a
majority of the outstanding voting securities of such Fund on ten days’ written
notice to Adviser or by Adviser at any time, without the payment of any penalty,
on ten days’ written notice to the Trust. Termination of this Contract with
respect to any given Fund shall not affect the continued effectiveness of the
Contract with respect to any other Fund. This Contract will automatically
terminate in the event of its assignment.
10. Amendment
of this Contract.
No
provision of this Contract may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought, and
no
amendment of this Contract shall be effective until approved by vote of a
majority of such Fund’s outstanding voting securities, when required by the 1940
Act.
11. Governing
Law. This
Contract shall be construed in accordance with the laws of the State of Delaware
(without regard to Delaware conflict or choice of law provisions) and the 1940
Act. To the extent that the applicable laws of the State of Delaware conflict
with the applicable provisions of the 1940 Act, the latter shall
control.
12. License
Agreement.
The
Trust shall have the non-exclusive right to use the name “Hillview” to designate
any current or future Fund only so long as Hillview Capital Advisors, LLC serves
as investment manager or adviser to the Trust with respect to such Fund.
4
13. Limitation
of Shareholder Liability.
It is
expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents
or
employees of the Trust personally, but shall only bind the assets and property
of the Trust, as provided in the Trust’s Agreement and Declaration of Trust. The
execution and delivery of this Contract have been authorized by the Trustees
of
the Trust and shareholders of the Trust, and this Contract has been executed
and
delivered by an authorized officer of the Trust acting as such; neither such
authorization by such Trustees and shareholders nor such execution and delivery
by such officer shall be deemed to have been made by any of them individually
or
to impose any liability on any of them personally, but shall bind only the
assets and property of the Trust, as provided in the Trust’s Agreement and
Declaration of Trust.
14. Miscellaneous.
The
captions in this Contract 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 Contract shall be held or
made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Contract shall not be affected thereby. This Contract shall be binding upon
and
shall inure to the benefit of the parties hereto and their respective
successors. As used in this Contract, the terms “majority of the outstanding
voting securities,” “interested person,” “assignment,” “broker,” “dealer,”
“investment adviser,” “national securities exchange,” “net assets,”
“prospectus,” “sale,” “sell” and “security” shall have the same meaning as such
terms have in the 1940 Act, subject to such exemption as may be granted by
the
Securities and Exchange Commission by any rule, regulation or order. Where
the
effect of a requirement of the 1940 Act reflected in any provision of this
Contract is made less restrictive by a rule, regulation or order 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 or order.
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by their officers designated as of the day and year first above written.
By: /s/
Xxxxx Spungen_____
Name:
Xxxxx Xxxxxxx
Title: President
and Trustee
HILLVIEW
CAPITAL ADVISORS, LLC
By: /s/
Xxxxx Xxxxxxx
_____
Name:
Xxxxx X. Xxxxxxx
Title: CEO
5
APPENDIX
A
TO
INVESTMENT
MANAGEMENT CONTRACT
BETWEEN
AND
HILLVIEW
CAPITAL ADVISORS, LLC
Hillview
Alpha Fund
Hillview
International Alpha Fund
0
XXXXXXXX
X
TO
INVESTMENT
MANAGEMENT CONTRACT
BETWEEN
AND
HILLVIEW
CAPITAL ADVISORS, LLC
Each
Fund
shall pay the Adviser a fee, computed daily and paid monthly, at the annual
rate
of 0.25% of the Fund’s average daily assets.
Dated:
March 31, 2005
