Exhibit (d)(xxviii) under Form N-1A
Exhibit 10 under Item 601/ Reg. S-K
SUBADVISORY AGREEMENT
This Subadvisory Agreement ("Agreement") is entered into as of November
1, 2006, by and among the MTB Group of Funds, a Delaware statutory trust (the
"Trust"), MTB Investment Advisors, Inc., a Maryland corporation (the "Adviser"),
and Copper Rock Capital Partners (the "Subadviser").
RECITALS:
The Trust is an open-end investment management company registered under
the Investment Company Act of 1940, as amended (the "1940 Act"), and has thirty-
six portfolios, including the MTB Small Cap Stock Fund (the "Fund");
The Trust and the Adviser have entered into advisory agreements, each
dated as of August 22, 2003 (the "Advisory Agreement") as amended, pursuant to
which the Adviser provides portfolio management services to the Fund and the
other portfolios of the Trust;
The Advisory Agreement contemplates that the Adviser may fulfill its
portfolio management responsibilities under the Advisory Agreement by engaging
one or more subadvisers; and
The Adviser and the Board of Trustees of the Trust ("Trustees" or
"Board") desire to retain the Subadviser to act as sub-investment manager of the
Fund and to provide certain other services, and the Subadviser desires to
perform such services under the terms and conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, the Trust, the Adviser and the Subadviser agree as
follows:
1. DELIVERY OF DOCUMENTS. The Trust and/or the Adviser has furnished the
Subadviser with copies, properly certified or otherwise authenticated, of each
of the following:
a. The Trust's Agreement and Declaration of Trust ("Declaration of
Trust"), as in effect on the date hereof;
b. By-Laws of the Trust as in effect on the date hereof;
c. Resolutions of the Trustees selecting the Subadviser as the sub-
investment manager to the Fund and approving the form of this
Agreement;
d. Resolutions of the Trustees selecting the Adviser as investment
adviser to the Fund and approving the form of the Investment
Advisory Agreement and resolutions adopted by the initial
shareholder of the Fund approving the form of the Investment
Advisory Agreement;
e. The Advisory Agreement;
f. The Trust's current registration statement on Form N-1A as filed
with the Securities and Exchange Commission ("SEC"), including the
Fund's current prospectus and statement of additional information
(collectively called the "Prospectus");
g. All current written guidelines, policies and procedures of the
Trust, which are applicable to the Fund, the Adviser or the
Subadviser and have been approved by the Board of Trustees of the
Trust;
h. The code of ethics of the Trust which has been approved by the
Trustees of the Trust in accordance with Rule 17j-1 under the 1940
Act;
i. The Adviser's most recent Form ADV as filed with the SEC and/or
provided to the Adviser's clients (which Form ADV includes, among
other things, a description of the Adviser's policies regarding
allocation of securities among clients with common investment
objectives, soft dollars and brokerage selection);
j. Those provisions of the Adviser's Compliance Manual that apply to
the Fund;
k. A copy of the Adviser's Proxy Voting Policies and Procedures; and
l. The Trust's Anti-Money Laundering Policies and Procedures.
The Adviser will promptly furnish the Subadviser from time to time with
copies, properly certified or otherwise authenticated, of all amendments of or
supplements to any of the foregoing documents. The Adviser will also furnish the
Subadviser with copies of all the documents listed on Schedule 1 to this
Agreement, and shall promptly notify the Subadviser of any material change in
any of the Fund's investment objectives, investment strategies, investment
policies, investment restrictions, guidelines or procedures set forth in any of
the documents listed in Schedule 1. In addition, the Chief Compliance Officer
for the Trust and the Adviser shall provide the Subadviser with a certification
that they have adopted and approved a compliance program for the Trust adopted
in accordance with Rule 38a-1 under the 1940 Act and the compliance program for
the Adviser adopted in accordance with Rule 206(4)-7 under the Investment
Advisers Act of 1940, as amended ("Advisers Act"), respectively.
The Chief Compliance Officer for the Subadviser shall provide the Trust
and the Adviser with copies of the Subadviser's Compliance Policies and
Procedures, a summary of its compliance program, and a certification that the
Subadviser has adopted and approved a compliance program for the Subadviser in
accordance with Rule 206(4)-7 under the Advisers Act and such other information
as may be reasonably requested in order to permit the Board of Trustees of the
Trust to make such determinations with respect to the Subadviser's compliance
program as may be required under Rule 38a-1 under the 1940 Act. The Subadviser
has furnished the Adviser with a copy of the Subadviser's Form ADV most recently
filed with the SEC, (which Form ADV includes a description of the Subadviser's
policies regarding allocation of securities among clients with common investment
objectives, soft dollars and brokerage selection) at least 48 hours prior to
execution of this Agreement and the code of ethics established by the Subadviser
pursuant to Rule 204A-1 under the Advisers Act and/or Rule 17j-1 under the 1940
Act ("Subadviser's Code of Ethics"). The Subadviser will promptly furnish the
Adviser with copies of any amendments to each of those documents. The Subadviser
will also provide the Adviser with the Subadviser's list of affiliated persons,
as defined in the 1940 Act, at least annually, and will promptly notify Adviser
in writing of any changes to that list.
The Subadviser will also provide the Adviser and the Fund accountant with
a list and specimen signatures of the parties who are authorized to act on
behalf of the Subadviser and will promptly notify Adviser in writing of any
changes to that list.
2. INVESTMENT SERVICES. Subject to the oversight of the Adviser and the
Trustees, the Subadviser will manage the portion of the Fund's assets allocated
to the Subadviser from time to time by the Adviser in its sole discretion
("Assets") on a discretionary basis, including the purchase, retention and
disposition of securities, as the Fund's agent and attorney-in-fact with full
power and authority in connection with such assets and in a manner that is (a)
consistent with the investment objectives, investment strategies, investment
policies and restrictions of the Fund as set forth in the Fund's Prospectus, (b)
in conformity with the 1940 Act, (c) compliant with the requirements applicable
to regulated investment companies under the Internal Revenue Code of 1986, as
amended, and (d) compliant with all other applicable federal securities laws and
regulations, instructions and directions received by the Subadviser in writing
from the Adviser or the Board of Trustees, and all applicable provisions in the
documents provided to the Subadviser, pursuant to Section 1 above, as each of
the documents may, from time to time, be amended or supplemented.
The Subadviser will discharge its duties under this Agreement with the
care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent person acting in the capacity of an investment adviser to a
registered investment Trust and familiar with such matters would use.
The Subadviser will, at its own expense, and subject to the oversight of
the Adviser and the Board of Trustees:
(a) Manage on a discretionary basis the Assets and determine from time
to time which securities will be purchased, retained or sold by the
Fund.
(b) Place orders with or through brokers, dealers or issuers in order
to effect or execute portfolio transactions for the Fund, subject
at all times to the Subadviser's duty to (i) use its best efforts
to obtain for the Fund the most favorable terms (consistent with
the equitable treatment of all of the Subadviser's clients) and
best execution of such portfolio transactions, (ii) comply with any
policy with respect to effecting or executing portfolio
transactions for the Fund, as set forth in the Fund's Prospectus,
and (iii) comply with any written policies and procedures of the
Trust, as approved by the Board of Trustees from time to time as
may be provided to the Subadviser by the Adviser.
In using its best efforts to obtain for the Fund the most favorable
terms (consistent with the equitable treatment of all of the
Subadviser's clients) and best execution of portfolio securities,
the Subadviser, bearing in mind the Fund's best interests at all
times, shall consider all factors it deems relevant, including but
not limited to: the price and size of the transaction, the nature
of the market for the security, the amount of the commission, the
timing of the transaction, market prices and trends, the
reputation, experience and financial stability of the broker or
dealer involved in the transaction, and the quality of service
rendered by the broker or dealer in other transactions.
Subject to such policies and procedures as the Board of Trustees
may approve, the Subadviser may, to the extent authorized by
Section 28(e) of the Securities Exchange Act of 1934, as amended,
and any applicable interpretations thereunder, cause the Fund to
pay a broker or dealer that provided brokerage and research
services to the Adviser or the Subadviser an amount of commission
for effecting a portfolio transaction in excess of the amount of
commission another broker or dealer would have charged for
effecting that transaction if the Subadviser determines, in good
faith, that such amount of commission is reasonable in relationship
to the value of such brokerage or research services provided viewed
in terms of that particular transaction or the Subadviser's overall
responsibilities to the Fund or its other advisory clients. To the
extent authorized by Section 28(e) and any applicable
interpretations thereunder and the Trust's Board of Trustees, the
Subadviser shall not be deemed to have acted unlawfully or to have
breached any duty created by this Agreement or otherwise solely by
reason of such action.
Subadviser shall not be liable to the Adviser nor the Trust nor the
Fund for any act, conduct or omission of any broker selected by
Subadviser to provide transaction or other services to the Fund,
and/or any Fund Series, provided the Subadvisor was not negligent
in the selection of such broker and such broker was selected with
reasonable care and in accordance with the provisions of this
clause (b).
(c) Submit information relating to the valuation of the portfolio
holdings as the Adviser or the Board may reasonably request. The
Trust, the Fund and the Adviser agree and acknowledge that
Subadviser is not a pricing agent for the Fund or the Trust and
shall not be liable for any valuation determined or adopted by the
Trust or the Fund, the Fund's custodian and/or portfolio accounting
agent in accordance with any information provided by the
Subadviser, subject to the provisions of Section 10(a).
(d) Maintain all accounts, books and records pertaining to the Assets
("Fund Assets' Books and Records") as are required of an investment
adviser of a registered investment company pursuant to Section 31
of the 1940 Act and the rules and regulations adopted thereunder
and by applicable provisions of the Advisers Act, including,
without limitation, a daily ledger of such assets and liabilities
relating to the Fund, and brokerage and other records of all
portfolio transactions for the Fund. The Fund Assets' Books and
Records shall be available for inspection or duplication by the
Adviser and the Trust on any day that the Fund is open for
business, upon reasonable request, and shall be available for
telecopying to the Adviser or the Trust on any such business day.
The Trust, the Fund and the Adviser agree and acknowledge that the
Subadviser is not an accounting agent for the Fund or the Trust and
shall not be liable for any accounting for or by the Trust or the
Fund that relies on any information provided by the Subadviser,
subject to the provisions of Section 10(a).
(e) Adviser shall be solely responsible, unless otherwise directed by
Adviser in writing, to take action, in accordance with the
Adviser's Proxy Voting Policy, with respect to matters submitted to
a vote of holders of voting securities comprising the Assets,.
Adviser shall be solely responsible for making all required filings
of Form N-PX with the appropriate regulatory bodies.
(f) From time to time, as the Adviser or the Trustees may reasonably
request, furnish the Adviser and to each of the Board members
reports of Fund's securities transactions with respect to the
Assets and reports on securities comprising the Assets, all in such
detail as the Adviser or the Trustees may reasonably request.
(g) Inform the Adviser and the Trustees of material or significant
changes in (i) investment strategy or policies that will be
employed in managing the Assets or (ii) key investment officers of
the Subadviser substantially involved in managing the Assets or
(iii) Subadviser's president, chief executive officer, chief
financial officer, chief operating officer or chief compliance
officer, or the persons performing the functions of any such office
for Subadviser
(h) Make its officers and employees available to meet with the Trustees
and the Adviser at such times and with such frequency as the
Trustees or the Adviser reasonably request, on due notice to the
Subadviser, but at least annually, to review the Fund's investment
of the Assets in light of current and prospective market
conditions.
(i) Furnish to the Board members such information as may be requested
by them in writing and as reasonably necessary in order for the
Trustees to evaluate this Agreement or any proposed amendments to
this Agreement for the purpose of casting a vote pursuant to
Section 12 or 13 hereof.
(j) Furnish to the Adviser such information as may be requested by the
Adviser and reasonably necessary in order for the Adviser to
evaluate this Agreement and the Subadviser's performance hereunder.
(k) The Subadviser will advise the Adviser, and, if instructed by the
Adviser, will advise the Fund's custodian on a prompt basis and
Fund accountant each day by electronic communication of each
confirmed purchase and sale of a security for the Fund. Such
communication with respect to each security purchased for or sold
by the Fund shall provide the following information: the name of
the issuer; the full description of the security including its
class; the amount or number of shares of the security purchased or
sold; the market price; commission paid; government charges; the
gross or net price of the security; the trade date; the settlement
date; the identity of the effecting broker or dealer and, if
different, the identity of the clearing broker. The Subadviser
shall not accept custody or possession of the Trust's funds or
securities. If the Subadviser inadvertently receives funds or
securities belonging to the Fund from any source, it shall
immediately deliver the funds/securities directly to the Fund's
custodian using an appropriate means of prompt delivery.
(l) Cooperate generally with the Fund and the Adviser to provide
information requested by them in the possession of the Subadviser,
or reasonably available to it, necessary for the preparation of the
registration statement for the Fund and all periodic reports to be
filed by the Fund or the Adviser with the SEC, including but not
limited to, Form N-1A, semi-annual reports for the Fund on Form N-
SAR and Form N-CSR, proxy voting results on Form N-PX, portfolio
holdings on Form N-Q, shareholder communications regarding the
Fund, proxy materials furnished to holders of shares of the Fund,
and filings with state "blue sky" authorities and with United
States agencies responsible for tax matters regarding the Fund.
(m) Allow the Chief Compliance Officer of the Trust and the Adviser
and/or his/her delegate, representatives of the Adviser, internal
or external auditors of the Trust and Adviser, and regulators to
visit and audit Subadviser's operations relating to Subadviser's
services under this Agreement as may be reasonably requested, at
reasonable times and upon reasonable notice, but at least once
annually.
(n) Deliver instructions or directions to the Adviser via such written
or oral reports as the Fund's custodian and fund accountant may
require. Subadviser shall instruct all brokers, dealers or other
persons executing orders with respect to the Assets to forward to
the Adviser and to the Fund's custodian copies of all brokerage or
dealer confirmations promptly after execution of all transactions.
(o) Comply with all requirements of Rule 204A-1 under the Advisers Act
and Rule 17j-1 under the 1940 Act, including the requirement to
submit its Code of Ethics and any material changes thereto to the
Adviser so that the Adviser may facilitate approval by the
Trustees. The Subadviser will submit any material change in its
Code of Ethics to the Adviser for submission to the Trustees
promptly after the adoption of such change. The Subadviser will
report at least quarterly any material violations of its Code of
Ethics or related procedures and any related sanctions to the
Advisor for reporting to the Trustees, and will provide a written
report to the Adviser for reporting to the Trustees at least
annually in accordance with the requirements of Rule 17j-1 and Rule
204A-1 under the Advisers Act. The Subadviser will also require
that its "Access Persons" (as such term is defined in Rule 17j-1
and Rule 204A-1) provide the Subadviser with quarterly personal
investment transaction reports and initial and annual holdings
reports, and otherwise require such of those persons as is
appropriate to be subject to the Subadviser's Code of Ethics.
(p) Provide to the Adviser, and the Adviser will provide to the Trust,
a copy and summary of its compliance program in accordance with
Rule 206(4)-7 under the Advisers Act, and any material changes
thereto, at least annually.
The Subadviser will not be expected or required to take any action other
than the rendering of investment-related advice with respect to lawsuits
involving securities presently or formerly held by the Fund, or the issuers
thereof, including actions involving bankruptcy. If the Subadviser receives
information pertaining to a class action law suit, the Subadviser will promptly
forward such information to the Adviser or, if so directed by the Adviser, to a
specified third party. In addition, the Subadviser will use its best efforts to
preserve any rights the Fund might have related to any class action law suit of
which the Subadviser is aware.
3. EXPENSES PAID BY THE SUBADVISER. The Subadviser will pay the cost of
maintaining the staff and personnel necessary for it to perform its obligations
under this Agreement, the expenses of office rent, telephone, telecommunications
and other facilities it is obligated to provide in order to perform the services
specified in Section 2, and any other costs and expenses incurred by it in
connection with the performance of its duties hereunder.
4. EXPENSES OF THE FUND NOT PAID BY THE SUBADVISER. The Subadviser will not
be required to pay any expenses of the Fund, including those expenses typically
and customarily borne by a fund or adviser and not otherwise specified herein,
or any other expenses that this Agreement does not expressly state shall be
payable by the Subadviser. In particular, and without limiting the generality of
the foregoing, the Subadviser will not be required to pay under this Agreement:
a. the compensation and expenses of Trustees and of independent
advisers, independent contractors, consultants, managers and other
agents employed by the Trust or the Fund other than through the
Subadviser;
b. organization and offering expenses of the Fund (including out of
pocket expenses);
c. legal, accounting and auditing fees and expenses of the Trust or
the Fund;
d. the fees and disbursements of custodians and depositories of the
Trust or the Fund's assets, or any fees and expenses of the Fund's
administrator, transfer agents, disbursing agents, plan agents and
registrars;
e. the Fund's interest expenses;
f. taxes and governmental fees assessed against the Trust or the
Fund's assets and payable by the Trust or the Fund;
g. dues and expenses of each of the Fund or the Adviser for its
respective membership in investment trade organizations;
h. cost of insurance relating to fidelity bond coverage or directors
and officers/ errors and omissions coverage for the Fund or the
Adviser;
i. the cost of preparing, printing and mailing Prospectuses,
dividends, distributions, reports, notices and proxy materials to
shareholders of the Trust or the Fund, except that the Subadviser
shall bear the costs of providing the information referred to in
Section 2(l) to the Adviser;
j. brokers' commissions and underwriting fees;
k. the payments for maintaining the Fund's books and records (other
than those books and records the Subadviser maintains in connection
with the performance or its duties under this Agreement) and any
expense associated with calculating the daily net asset value of
the shares of the Fund; and
l. expenses of any shareholder meetings.
5. REGISTRATION AS AN ADVISER. The Subadviser hereby represents and warrants
that it is registered with the SEC as an investment adviser, and covenants that
it intends to remain so registered for the duration of this Agreement.
Subadviser shall notify the Adviser immediately in the event that Subadviser
ceases to be registered with the SEC as an investment adviser under the Advisers
Act.
6. COMPENSATION OF THE SUBADVISER. For all services to be rendered,
facilities furnished and expenses paid or assumed by the Subadviser as herein
provided for the Funds, the Adviser will pay the Subadviser an annual fee equal
to 0. 72% of the first $50 million of average daily net asset value of the
Assets and 0.66% on average daily net asset value of the Assets exceeding $50
million. Such fee shall accrue daily and be paid monthly. The "average daily net
assets" of the Assets shall be determined on the basis set forth in the Fund's
Prospectus or, if not described therein, on such basis as is consistent with
Rule 2a-4 and Rule 22c-1 under the 1940 Act and the regulations promulgated
thereunder. The Subadviser will receive a pro rata portion of such monthly fee
for any periods in which the Subadviser advises the Fund less than a full month.
The Subadviser understands and agrees that neither the Trust nor the Fund has
any liability for the payment of Subadviser's fee hereunder and that the payment
of fees owed to the Subadviser shall be the sole responsibility of the Adviser.
7. OTHER ACTIVITIES OF THE SUBADVISER AND ITS AFFILIATES. It is understood
that the services under this Agreement are not exclusive and that nothing in
this Agreement shall prevent the Subadviser or any of its affiliates or
associates from engaging in any other business or from acting as investment
adviser or manager for any other person or entity or providing similar services
to any other person or entity, whether or not having investment policies or a
portfolio similar to the Fund. It is specifically understood that officers,
trustees/directors and employees of the Subadviser and those of its affiliates
may engage in providing portfolio management services and advice to other
investment advisory clients of the Subadviser or of its affiliates.
8. AVOIDANCE OF INCONSISTENT POSITION. In connection with purchases or sales
of portfolio securities for the account of the Fund with respect to the Assets,
neither the Subadviser nor any of its trustees/directors, officers or employees
will act as principal or agent or receive any commission, except in compliance
with applicable law and the relevant policies and procedures of the Fund. The
Subadviser shall not knowingly recommend that the Fund, with respect to the
Assets, purchase, sell or retain securities of any issuer in which the
Subadviser has a material financial interest without obtaining prior approval of
the Adviser prior to the execution of any such transaction.
Nothing herein contained shall limit or restrict the Subadviser or any of
its officers, affiliates or employees from buying, selling or trading in any
securities for its or their own account or accounts. The Trust and Fund
acknowledge that the Subadviser and its officers, affiliates and employees, and
its 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 by the Fund with respect to the Assets. The Subadviser shall have no
obligation to acquire with respect to the Assets, a position in any investment
that the Subadviser may acquire for its own account or the Subadviser, its
officers, affiliates under the control of the Subadviser or employees may
acquire for the account of another client if, in the sole discretion of the
Subadviser, it is not feasible or desirable to acquire a position in such
investment for the Fund. The Subadviser shall have no obligation to acquire with
respect to the Assets a position in any investment that the Subadviser's
affiliates that are not under the control of the Subadviser acquire or that the
Subadviser's officers or employees acquire for their own accounts. Nothing
herein contained shall prevent the Subadviser from purchasing or recommending
the purchase of a particular security for one or more funds or clients while
other funds or clients may be selling the same security. The Subadviser
expressly acknowledges and agrees, however, that in any of the above described
transactions, and in all cases, the Subadviser is obligated to fulfill its
fiduciary duty as Subadviser to the Fund, with respect to the Assets, and it
shall require such of its Access Persons as is appropriate to comply with the
requirements of the Subadviser's Code of Ethics.
When a security proposed to be purchased or sold for the Assets is also
to be purchased or sold for other accounts managed by the Subadviser at the same
time, the Subadviser shall make such purchase or sale on a pro-rata, rotating or
other fair and equitable basis so as to avoid any one account being preferred
over any other account. The Subadviser shall disclose to the Adviser and to the
Trustees the method used to allocate purchases and sales among the Subadviser's
investment advisory clients. It is further understood that the Subadviser may,
but shall not be obligated to, aggregate the orders for securities to be
purchased or sold.
9. NO PARTNERSHIP OR JOINT VENTURE. The Trust, the Fund, the Adviser and the
Subadviser are not partners of or joint venturers with each other and nothing
herein shall be construed so as to make them such partners or joint venturers or
impose any liability as such on any of them.
10. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) In the absence of (i) willful misfeasance, bad faith, or gross
negligence on the part of the Subadviser or reckless disregard of
its duties, (ii) the failure to disclose to the Adviser a material
fact regarding the Subadviser or its investment advisory services
as they relate to the Fund; (iii) the failure to correct any untrue
statement of a material fact regarding the Subadviser made by the
Subadviser to the Adviser, or (iv) the reckless disregard by the
Subadviser of its obligations and duties under this Agreement, the
Subadviser shall not be subject to any liability to the Adviser,
the Trust or the Fund, any shareholder of the Fund, or to any
person, firm or organization, for any act or omission in the course
of or in connection with rendering its services under this
Agreement. Specifically, the Subadviser shall not be liable to the
Adviser, the Trust or the Fund for any error of judgment or mistake
of law, subject to the limitations of Section 17(j) of the 1940
Act. Nothing herein, however, shall derogate from the Subadviser's
obligations under federal and state securities laws. Subadviser
will maintain a reasonable amount of fidelity bond insurance
coverage and shall provide evidence of such coverage upon request
of Adviser.
(b) In the absence of (i) willful misfeasance, bad faith or gross
negligence on the part of the Adviser or reckless disregard of its
duties, (ii) the failure of the Adviser to disclose in the
Prospectus or any filing made with the SEC with respect to the
Trust, the Fund or the Adviser any material fact; (iii) the failure
by the Adviser to correct any untrue statement of a material fact
contained in the Prospectus or any other filing made with the SEC
regarding the Trust, the Fund or the Adviser; or (iv) the reckless
disregard by the Adviser of its obligations and duties under this
Agreement, Adviser shall not be subject to any liability to
Subadviser for any act or omission in the course of or in
connection with the Adviser's carrying out its duties and
obligations under this Agreement. Specifically, the Adviser shall
not be liable to the Subadviser for any error of judgment or
mistake of law. Nothing herein, however, shall derogate from the
Adviser's obligations under federal and state securities laws.
(c) Subadviser and Adviser shall each defend, indemnify and hold
harmless the other party and the other party's affiliates,
officers, trustees/directors, members, employees and agents, from
and against any claim, loss, liability, judgment, awards,
settlements for which prior approval of the indemnifying party is
obtained, damages, deficiency, penalty, cost or expense (including
without limitation reasonable attorneys' fees and disbursements for
external counsel) resulting from (i) the reckless disregard of the
indemnifying party's obligations and duties hereunder; (ii) willful
misfeasance, bad faith or gross negligence on the part of the
indemnifying party, its officers, trustees/directors, members,
employees and agents with respect to this Agreement or the Fund or
(iii) the failure of the indemnifying party to disclose any
material fact or the failure of the indemnifying party to correct
any untrue statement of a material fact whether such claim, loss,
liability, damages, deficiency, penalty, cost or expense was
incurred or suffered directly or indirectly.
(d) Adviser is liable to, and shall indemnify, the Fund and the Trust
for any acts and omissions of the Subadviser to the same extent the
Adviser, under the terms of the Advisory Agreement, is liable to,
and must indemnify the Fund and the Trust for the Adviser's acts
and omissions.
(e) The indemnification provisions in Section 10 of the Agreement shall
survive the termination of this Agreement.
11. ASSIGNMENT AND AMENDMENT. This Agreement may not be assigned by the
Subadviser, and shall automatically terminate, without the payment of any
penalty, in the event: (a) of its assignment, including any change in control of
the Adviser or the Subadviser which is deemed to be an assignment under the 1940
Act, or (b) that the Advisory Agreement is assigned or terminates for any
reason. Trades that were placed prior to such termination will not be canceled;
however, no new trades will be placed after such termination is effective and
notice of such termination has been communicated to the Subadviser as set forth
in Section 14(f). Termination of this Agreement shall not relieve the Adviser or
the Subadviser of any liability incurred hereunder.
The terms of this Agreement shall not be changed unless such change is
agreed to in writing by the parties hereto and is approved by the affirmative
vote of a majority of the Trustees of the Trust voting in person, including a
majority of the Trustees who are not interested persons of the Trust, the
Adviser or the Subadviser, at a meeting called for the purpose of voting on such
change, and (to the extent required by the 0000 Xxx) unless also approved at a
meeting by the affirmative vote of the majority of outstanding voting securities
of the Fund.
12. DURATION AND TERMINATION. This Agreement shall become effective as of the
date first above written and shall remain in full force and effect for a period
of two years from such date, and thereafter for successive periods of one year
(provided such continuance is approved at least annually in conformity with the
requirements of Section 15 of the 0000 Xxx) unless the Agreement is terminated
automatically as set forth in Section 11 hereof or until terminated as follows:
(a) The Trust or the Adviser may at any time terminate this Agreement,
without payment of any penalty, by not more than 60 days' prior
written notice delivered or mailed by registered mail, postage
prepaid, or by nationally recognized overnight delivery service,
receipt requested, to the Subadviser. Action of the Trust under
this subsection may be taken either by (i) vote of its Trustees, or
(ii) the affirmative vote of the outstanding voting securities of
the Fund; or
(b) The Subadviser may at any time terminate this Agreement by not less
than one hundred twenty (120) days' prior written notice by
facsimile or delivered via registered mail, postage prepaid or a
nationally recognized overnight delivery service, receipt
requested, to the Adviser.
Termination of this Agreement pursuant to this Section shall be without
payment of any penalty.
Fees payable to Subadviser for services rendered under this Agreement
will be prorated to the date of termination of the Agreement.
In the event of termination of this Agreement for any reason, the
Subadviser shall, immediately upon receiving notice of termination or a receipt
acknowledging delivery of a notice of termination to Adviser, or such later date
as may be specified in such notice, cease all activity on behalf of the Fund and
with respect to the Assets, except as expressly directed by the Adviser, and
except for the settlement of securities transactions already entered into for
the account of the Fund with respect to the Assets. In addition, the Subadviser
shall deliver copies of the Fund Assets' Books and Records to the Adviser upon
request by such means and in accordance with such schedule as the Adviser shall
reasonably direct and shall otherwise cooperate, as reasonably directed by the
Adviser, in the transition of Fund investment management to any successor to the
Subadviser, including the Adviser; provided however that the Subadviser shall be
permitted to retain at its own expense a separate copy of such records for its
own protection and may not disclose such information to other parties unless
required by any law, rule, regulation or order of a court or government
authority.
13. APPROVAL OF AGREEMENT. The parties hereto acknowledge and agree that the
obligations of the Trust, the Adviser, and the Subadviser under this Agreement
shall be subject to the following condition precedent: this Agreement shall have
been approved by the vote of a majority of the Trustees, who are not interested
persons of the Trust, the Adviser or the Subadviser, at a meeting called for the
purpose of voting on such approval.
14. MISCELLANEOUS.
(a) 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. This
Agreement may be executed simultaneously 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. The
obligations of the Trust and the Fund are not personally binding
upon, nor shall resort be had to be private property of, any of the
Trustees, shareholders, officers, employees or agents of the Trust
or the Fund, but only the Fund's property shall be bound. The Trust
or the Fund shall not be liable for the obligations of any other
series of the Trust.
(b) Any information supplied by the Trust or the Adviser to the
Subadviser in connection with the performance of the Subadviser's
duties hereunder, or learned by the Subadviser as a result of its
position as Subadviser to the Fund, which information is not
otherwise in the public domain, is to be regarded as confidential
information for use by the Subadviser only in connection with the
performance of its duties hereunder. Any such information in the
hands of the Subadviser may be disclosed as necessary to comply
with any law, rule, regulation or order of a court or government
authority.
(c) Any information supplied by the Subadviser to the Trust or the
Adviser in connection with the performance of the Subadviser's
duties under this Agreement or learned by the Trust or the Adviser
as a result of the services provided by the Subadviser under this
Agreement, which information is not otherwise in the public domain,
is to be regarded as confidential information for use by the
Adviser, the Fund and/or its agents only in connection with the
Fund and its investments. Any such information in the hands of
either party may be disclosed as necessary to comply with any law,
rule, regulation or order of a court or government authority.
(d) The Subadviser agrees to submit any proposed sales literature it
prepares, or that is prepared at its direction or on its behalf,
(including advertisements, whether in paper, electronic or Internet
medium) which mentions the Trust or the Fund (other than the use of
the Fund's name in a list of clients of the Subadviser, for which
Subadviser is specifically authorized so to use), to the Adviser
and to the Fund's distributor for review and filing with the
appropriate regulatory authority prior to public release of any
such sales literature; provided, however, that nothing herein shall
be construed so as to create any obligation or duty on the part of
the Subadviser to produce sales literature for the Trust or the
Fund.
(e) The Trust and the Adviser agree to submit any proposed sales
literature that mentions the Subadviser (other than identifying the
Subadviser as subadviser to the Fund) to the Subadviser for review
prior to use and the Subadviser agrees to promptly review such
materials by a reasonable and appropriate deadline. The Trust
agrees to cause the Adviser and the Trust's distributor to promptly
review all such sales literature for compliance with relevant
requirements, to promptly advise the Subadviser of any deficiencies
contained in such sales literature, and to promptly file complying
sales literature with the relevant regulatory authorities. Neither
the Adviser, nor the Trust nor the Fund nor any affiliate of the
foregoing will use the registered trademarks, service marks, logos,
names or any other proprietary designations of Subadviser, its
subsidiaries and/or affiliates (collectively, "Subadviser Marks")
in any advertising or promotional materials without Subadviser's
prior written approval, which will not be unreasonably withheld.
Adviser and Subadviser will work together to develop mutually
agreeable standards and procedures for the review of materials
bearing Subadviser Marks to facilitate the efficient creation and
use of such advertising or promotional materials.
(f) All notices, consents, waivers and other communications under this
Agreement must be in writing and, other than notices governed by
Section 12 above, will be deemed to have been duly given when (i)
delivered by hand (with written confirmation of receipt), (ii) sent
by telecopier, provided that receipt is confirmed by return
telecopy and a copy is sent by overnight mail via a nationally
recognized overnight delivery service (receipt requested); (iii)
when received by the addressee, if sent via a nationally recognized
overnight delivery service (receipt requested) or U.S. mail
(postage prepaid), in each case to the appropriate address and
telecopier number set forth below (or to such other address and
telecopier number as a party may designate by notice to the other
parties):
Subadviser: Copper Rock Capital Partners
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx XX 00000
Attention: Xxxxxxx Xxxxxx,
Chief Financial Officer and
Chief Compliance Officer
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Email: xxxxxxx@XxxxxxXxxxXxxxxxx.xxx
Adviser: MTB Investment Advisors, Inc.
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: President
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Trust: MTB Group of Funds
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Secretary
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(g) For purposes of this Agreement: (i) "affirmative vote of a majority
of the outstanding voting securities of the Fund" means the
affirmative vote, at an annual meeting or a special meeting of the
shareholders of the Fund, duly called and held, (A) of 67% or more
of the shares of the Fund present (in person or by proxy) and
entitled to vote at such meeting, if the holders of more than 50%
of the outstanding shares of the Fund entitled to vote at such
meeting are present (in person or by proxy), or (B) of more than
50% of the outstanding shares of the Fund entitled to vote at such
meeting, whichever is less; and (ii) "interested person" and
"assignment" shall have the respective meanings as set forth in the
1940 Act, subject, however, to such exemptions as may be granted by
the SEC under the 1940 Act.
(h) This Agreement shall be construed in accordance with the laws of
the State of New York and the applicable provisions of the 1940
Act.
(i) The provisions of this Agreement are independent of and separable
from each other and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be deemed invalid or unenforceable
in whole or in part.
(j) Subadviser agrees to maintain the security and confidentiality of
nonpublic personal information ("NPI") of Fund customers and
consumers, as those terms are defined in Xxxxxxxxxx X-X, 00 XXX
Part 248. Subadviser agrees to use and redisclose such NPI for the
limited purposes of processing and servicing transactions; for
specific law enforcement and miscellaneous purposes; and to service
providers or in connection with joint marketing arrangements
directed by the Fund, in each instance in furtherance of fulfilling
Subadviser's obligations under this Agreement and consistent with
the exceptions provided in 17 CFR Sections 248.14, 248.15 and
248.13, respectively.
(k) Any question of interpretation of any term or section of this
Agreement having a counterpart in or otherwise derived from a term
or provision of the 1940 Act or Advisers Act shall be resolved by
reference to such term or provision of the 1940 Act or Advisers Act
and interpretation thereof, if any, by the United States courts or,
in the absence of any controlling decision of any such court, by
rules, regulations or orders of the SEC validly issued pursuant to
the 1940 Act or Advisers Act. In addition, where the effect of a
requirement of the 1940 Act or Advisers Act reflected in any
provision of this Agreement is relaxed by rule, regulation or order
of the SEC, whether of special or general application, such
provision shall be deemed to incorporate the effect of such rule,
regulation or order.
(l) In the event the Subadviser may deem it advantageous to the Fund to
place portfolio securities trades for the Fund through (a) a
broker-dealer affiliate of the subadviser to another portfolio of
the Trust; or (b) a broker-dealer affiliate of the subadviser to a
discrete portion of the Fund, the Subadviser may engage in such
trades under Rule 17a-10 under the 1940 Act without complying with
certain provisions of Rule 17e-1 under the 1940 Act, provided that
Subadviser does not consult with any entity which subadvises any
other portfolio of the Trust, or any portion of any such portfolio
("Another Subadvised Fund"), concerning transactions for the Fund
or Another Subadvised Fund.
(m) Each of the Adviser and Subadviser represents and warrants to the
other that it has a business continuity plan designed to restore
services as promptly as practical as a result of work stoppage,
power or other mechanical failure, natural disaster, governmental
action, communication disruption or other impossibility of
performance.
15. LIMITATIONS OF LIABILITY OF TRUSTEES AND SHAREHOLDERS OF THE TRUST. The
execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and signed by an authorized officer of the Trust,
acting as such, and neither such authorization by such Trustees 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, and the obligations of this Agreement are not binding upon
any of the Trustees or shareholders of the Trust, but bind only the
appropriate property of the Fund, or Class, as provided in the
Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
signed on their behalf by their duly authorized officers as of the date first
above written.
MTB GROUP OF FUNDS
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MTB INVESTMENT ADVISORS, INC.
By: /s/ Xxxxxxx X.Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
COPPER ROCK CAPITAL PARTNERS
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer and Chief
Compliance Officer
1
SCHEDULE 1
Custody Agreement between the Trust and the Fund's custodian ("Custodian"),
including information as to:
The Fund's nominee
The federal tax identification numbers of the Fund and its nominee
All routing, bank participant and account numbers and other
information necessary to provide proper instructions for transfer
and delivery of securities to the Fund's account at the Custodian
Name, address, telephone and Fax number of the Custodian's
employees responsible for the Fund's accounts
The Fund's pricing service and contact persons
All applicable procedures and guidelines adopted by the Board of Trustees or the
Adviser regarding management of the Fund, including but not limited to:
Rule 17a-7 Procedures (relating to transactions with affiliated persons)
Guidelines for Determining Fair Value of Securities
Net Asset Value Correction Policies and Procedures
Evaluating the liquidity of securities
Segregation of liquid assets in connections with firm commitments
and standby commitments
Derivative contracts and securities
Repurchase Agreement Guidelines
Rule 10f-3 (relating to affiliated underwriting syndicates)
Rule 17a-7 (relating to interfund transactions)
Rule 17e-1 and 17a-10 (relating to transactions with affiliated brokers) and
Procedures for cash sweep investments in money market funds
Monitoring portfolio compliance
Subadviser supervision
Daily review of pricing
Any master agreements that the Trust has entered into on behalf of the Fund,
including:
Master Repurchase Agreement
Master Foreign Exchange Netting Agreements
Master Swap Agreements
Form of Securities Lending Agency Agreement
Other agreements that the Trust has entered into on behalf of the Fund,
including:
Investment Advisory Agreement
Other relevant documents, including:
CFTC Rule 4.5 letter
2
