INVESTMENT ADVISORY AGREEMENT
This AGREEMENT is made as of this 16th day of July, 2010, between Xxxxx
Fargo Fund Trust (the "Trust"), a statutory trust organized under the laws of
the State of Delaware with its principal place of business at 000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000 and Xxxxx Fargo Fund Management,
LLC (the "Adviser"), a limited liability company organized under the laws of the
State of Delaware with its principal place of business at 000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000.
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act") as an open-end management investment company and is
authorized to issue interests (as defined in the Trust's Declaration of Trust,
as amended and supplemented from time to time), in separate series; and
WHEREAS, the Trust desires that the Adviser provide investment advisory
services to the series of the Trust identified on Schedule A hereto, as such
Schedule may be amended or supplemented from time to time by mutual agreement
(the "Fund"), and the Adviser is willing to provide those services on the terms
and conditions set forth in this Agreement;
NOW THEREFORE, the Trust and the Adviser agree as follows:
SECTION 1. APPOINTMENT OF THE ADVISER. The Trust is engaged in the business
of investing and reinvesting its assets in securities of the type and in
accordance with the limitations specified in its Declaration of Trust, as
amended and supplemented from time to time, By-Laws (if any) and Registration
Statement filed with the Securities and Exchange Commission (the "Commission")
under the 1940 Act and the Securities Act of 1933 (the "Securities Act"),
including any representations made in the prospectus and statement of additional
information relating to the Fund contained therein and as may be amended or
supplemented from time to time, all in such manner and to such extent as may
from time to time be authorized by the Trust's Board of Trustees (the "Board").
The Board is authorized to issue any unissued shares in any number of additional
classes or series.
The investment authority granted to the Adviser shall include the authority
to exercise whatever powers the Trust may possess with respect to any of its
assets held by the Fund, including, but not limited to, the power to exercise
rights, options, warrants, conversion privileges, redemption privileges, and to
tender securities pursuant to a tender offer, and participate in class actions
and other legal proceedings on behalf of the Fund.
The Trust hereby employs Adviser, subject to the direction and control of
the Board, to manage the investment and reinvestment of the assets in the Fund
and, without limiting the generality of the foregoing, to provide the other
services specified in Section 2 hereof.
SECTION 2. DUTIES OF THE ADVISER.
(a) The Adviser shall make decisions with respect to all purchases and
sales of securities and other investment assets for the Fund. Among other
things, the Adviser shall make all decisions with respect to the allocation of
the Fund's investments in various securities or other assets, in investment
styles and, if applicable, in other investment companies or pooled vehicles in
which the Fund may invest.
To the extent the securities of an underlying registered investment
company constitute the Fund's only investment security, in accordance with
Section 12(d)(1)(E) of the 1940 Act, the Adviser's responsibilities shall
include, but not be limited to, reviewing the investment strategy and
performance of the underlying fund, evaluating any proposed changes affecting
the underlying fund, and conducting risk management reviews and assessments with
respect to the underlying fund and its adviser.
To carry out such duties, the Adviser is hereby authorized, as agent
and attorney-in-fact for the Trust, for the account of, at the risk of and in
the name of the Trust, to place orders and issue instructions with respect to
transactions of the Fund. In all purchases, sales and other transactions in
securities for the Fund, the Adviser is authorized to exercise full discretion
and act for the Trust in the same manner and with the same force and effect as
the Trust might or could do with respect to such purchases, sales or other
transactions, as well as with respect to all other things necessary or
incidental to the furtherance or conduct of such purchases, sales or other
transactions.
(b) The Adviser will report to the Board at each regular meeting thereof
regarding the investment performance of the Fund since the prior report, and
will also keep the Board informed of important developments affecting the Trust,
the Fund and the Adviser, and on its own initiative will furnish the Board from
time to time with such information as the Adviser may believe appropriate,
whether concerning the individual companies whose securities are held by the
Fund, the industries in which they engage, or the economic, social or political
conditions prevailing in each country in which the Fund maintains investments.
The Adviser will also furnish the Board with such statistical and analytical
information with respect to securities in the Fund as the Adviser may believe
appropriate or as the Board reasonably may request.
The Adviser shall promptly notify the Trust of (i) any changes
regarding the Adviser that would impact disclosure in the Trust's Registration
Statement, or (ii) any violation of any requirement, provision, policy or
restriction that the Adviser is required to comply with under Section 6 of this
Agreement. The Adviser shall immediately notify the Trust of any legal process
served upon it in connection with its activities hereunder, including any legal
process served upon it on behalf of the Fund or the Trust.
(c) The Adviser will from time to time employ or sub-contract the services
to certain persons as the Adviser believes to be appropriate or necessary to
assist in the execution of the Adviser's duties hereunder; provided, however,
that the employment or sub-contracting with any such person shall not relieve
the Adviser of its responsibilities or liabilities hereunder and provided
further that the Adviser shall not have the authority to sub-contract advisory
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responsibilities without the consent of the Trust. The cost of performance of
such duties will be borne and paid by the Adviser. No obligation may be imposed
on the Trust in any such respect.
The Adviser shall supervise and monitor the activities of its
representatives, personnel, sub-contractors, and agents in connection with the
execution of its duties and obligations hereunder. The appropriate personnel of
the Adviser will be made available to consult with the Board at reasonable times
and upon reasonable notice concerning the business of the Trust.
(d) The Adviser shall maintain records relating to portfolio transactions
and the placing and allocation of brokerage orders as are required to be
maintained by the Trust under the 1940 Act. The Adviser shall prepare and
maintain, or cause to be prepared and maintained, in such form, for such periods
and in such locations as may be required by applicable law, all documents and
records relating to the services provided by the Adviser pursuant to this
Agreement required to be prepared and maintained by the Trust pursuant to the
rules and regulations of any national, state, or local government entity with
jurisdiction over the Trust, including the Commission and the Internal Revenue
Service. The books and records pertaining to the Trust which are in possession
of the Adviser shall be the property of the Trust. The Trust, or the Trust's
authorized representatives, shall have access to such books and records at all
times during the Adviser's normal business hours. Upon the reasonable request of
the Trust, copies of any such books and records shall be provided promptly by
the Adviser to the Trust or the Trust's authorized representatives.
SECTION 3. DELIVERY OF DOCUMENTS TO THE ADVISER. The Trust has furnished
the Adviser with true, correct and complete copies of the following documents:
(a) The Declaration of Trust, as in effect on the date hereof;
(b) The Registration Statement filed with the Commission under the
1940 Act and the Securities Act; and
(c) Written guidelines, policies and procedures adopted by the Trust.
The Trust will furnish the Adviser with all future amendments and
supplements to the foregoing as soon as practicable after such documents become
available. The Trust shall furnish the Adviser with any further documents,
materials or information that the Adviser may reasonably request in connection
with the performance of its duties hereunder.
SECTION 4. DELEGATION OF RESPONSIBILITIES. The Adviser may carry out any of
its obligations under this Agreement by employing, subject to supervision by the
Adviser, one or more Sub-Adviser(s) who are registered as investment advisers
pursuant to the Investment Advisers Act of 1940 ("Sub-Advisers"). Each
Sub-Adviser's employment will be evidenced by a separate written agreement
approved by the Board and, if required under the 1940 Act, by the shareholders
of the Fund (unless the Commission or its staff has given authorization or
issued an interpretation dispensing with the requirement of shareholder
approval). The Adviser shall not be liable hereunder for any act or omission of
any Sub-Adviser, except for failure to exercise good faith in the employment of
the Sub-Adviser and for failure to exercise appropriate supervision of such
Sub-Adviser, and as may otherwise be agreed in writing. The Adviser shall be
solely responsible for compensating any Sub-Adviser for services rendered under
any Sub-
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Advisory Agreement. The Adviser may, from time to time and at any time,
terminate any Sub-Adviser and reassume the responsibilities assigned to such
Sub-Adviser with respect to any Fund without obtaining the approval of the
shareholders of the Fund.
SECTION 5. CONTROL BY BOARD. Any investment activities undertaken by the
Adviser pursuant to this Agreement, as well as any other activities undertaken
by the Adviser on behalf of the Fund, shall at all times be subject to the
direction and control of the Board.
SECTION 6. COMPLIANCE WITH APPLICABLE REQUIREMENTS. In carrying out its
obligations under this Agreement, the Adviser shall at all times comply with:
(a) all applicable provisions of the 1940 Act, and any rules and
regulations adopted thereunder;
(b) the Registration Statement of the Trust, as it may be amended from time
to time, filed with the Commission under the Securities Act and the 1940 Act;
(c) the provisions of the Declaration of Trust of the Trust, as it may be
amended from time to time;
(d) the provisions of the Internal Revenue Code of 1986, as amended,
applicable to the Trust or the Fund, and any rules and regulations adopted
thereunder; and
(e) any other applicable provisions of state or federal law, and any rules
and regulations adopted thereunder.
SECTION 7. PROXIES. The Adviser shall have responsibility to vote proxies
solicited with respect to issuers of securities in which assets of the Fund are
invested in accordance with the Trust's policies on proxy voting.
SECTION 8. BROKER-DEALER RELATIONSHIPS. In connection with the purchase and
sale of securities for the Fund, the Adviser is responsible for broker-dealer
selection and negotiation of brokerage commission rates. The Adviser's primary
consideration in effecting a security transaction will be to obtain the best
price and execution. In selecting a broker-dealer to execute each particular
transaction for the Fund, the Adviser will consider among other things: the best
net price available, the reliability, integrity and financial condition of the
broker-dealer; the size of and difficulty in executing the order; and the value
of the expected contribution of the broker-dealer to the Fund on a continuing
basis. Accordingly, the price to the Fund in any transaction may be less
favorable than that available from another broker-dealer if the difference is
reasonably justified by other aspects of the portfolio execution services
offered. Subject to such policies as the Board may from time to time determine,
the Adviser shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of having caused
the Fund to pay a broker or dealer that provides brokerage and research services
to the Adviser an amount of commission for effecting a portfolio investment
transaction in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction, if the Adviser determines in good
faith that such amount of
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commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the overall responsibilities of the Adviser with
respect to the Fund and to other clients of the Adviser. The Adviser is further
authorized to allocate the orders placed by it on behalf of the Fund to brokers
and dealers who also provide brokerage and research services within the meaning
of Section 28(e) of the Securities Exchange Act of 1934 and in compliance
therewith. Such allocation shall be in such amounts and proportions as the
Adviser shall determine and the Adviser will report on said allocations
regularly to the Board, indicating the brokers to whom such allocations have
been made and the basis therefore.
SECTION 9. EXPENSES. All of the ordinary business expenses incurred in the
operations of the Fund and the offering of their shares shall be borne by the
Fund unless specifically provided otherwise in this Agreement. The expenses
borne by the Trust include, but are not limited to, brokerage commissions,
taxes, legal, auditing or governmental fees, the cost of preparing share
certificates, custodian, transfer agent and shareholder service agent costs,
expense of issue, sale, redemption and repurchase of shares, expenses of
registering and qualifying shares for sale, expenses relating to trustees and
shareholder meetings, the cost of preparing and distributing reports and notices
to shareholders, the fees and other expenses incurred by the Fund in connection
with membership in investment company organizations and the cost of printing
copies of prospectuses and statements of additional information distributed to
the Fund's shareholders.
The Adviser shall pay its own expenses in connection with the services to
be provided by it pursuant to this Agreement. In addition, the Adviser shall be
responsible for reasonable out-of-pocket costs and expenses incurred by the
Trust: (a) to amend the Trust's registration statement or supplement the Fund's
prospectus, and circulate the same, to reflect a change in the personnel of the
Adviser responsible for making investment decisions in relation to the Fund; (b)
to obtain shareholder approval of a new sub-advisory agreement as a result of a
"change in control" (as such term in defined in Section 2(a)(9) of the 0000 Xxx)
of the Adviser, or to otherwise comply with the 1940 Act, the Securities Act, or
any other applicable statute, law, rule or regulation, as a result of such
change; or (c) to meet other legal or regulatory obligations caused by actions
of the Adviser.
SECTION 10. COMPENSATION.
(a) As compensation for the advisory services provided under this
Agreement, the Trust shall pay the Adviser fees, payable monthly, at the annual
rates indicated on Schedule A hereto, as such Schedule may be amended or
supplemented from time to time;
(b) The adviser shall receive a fee of 0.25% for asset allocation services
if the Fund invests some of its investment assets in two or more registered,
open-end management investment companies, or separate series thereof, in each
case, in accordance with Section 12(d)(1)(G) under the Act, the rules thereunder
or an exemptive order issued by the Commission exempting the Fund from the
provisions of Section 12(d)(1)(A) under the Act (a "Fund of Fund structure").
5
SECTION 11. STANDARD OF CARE. The Trust will expect of the Adviser, and the
Adviser will give the Trust the benefit of, the Adviser's best judgment and
efforts in rendering its services to the Trust, and the Adviser shall not be
liable hereunder for any mistake in judgment. In the absence of willful
misfeasance, bad faith, negligence or reckless disregard of obligations or
duties hereunder on the part of the Adviser or any of its officers, directors,
employees or agents, the Adviser shall not be subject to liability to the Trust
or to any shareholders of the Trust for any act or omission in the course of, or
connected with, rendering services hereunder or for any losses that may be
sustained in the purchase, holding or sale of any security.
SECTION 12. NON-EXCLUSIVITY. The services of the Adviser to the Fund are
not to be deemed to be exclusive, and the Adviser shall be free to render
investment advisory or other services to others (including other investment
companies) and to engage in other activities. It is understood and agreed that
officers or directors of the Adviser may serve as officers and directors of the
Trust, and that officers or directors of the Trust may serve as officers or
directors of the Adviser, to the extent that such services may be permitted by
law, and that the officers and directors of the Adviser are not prohibited from
engaging in any other business activity or from rendering services to any other
person, or from serving as partners, officers, directors or trustees of any
other firm or trust, including other investment advisory companies.
SECTION 13. RECORDS. The Adviser shall, with respect to orders the Adviser
places for the purchase and sale of portfolio securities of the Fund, maintain
or arrange for the maintenance of the documents and records required pursuant to
Rule 31a-1 under the 1940 Act as well as such records as the Fund's
administrator reasonably requests to be maintained, including, but not limited
to, trade tickets and confirmations for portfolio trades. All such records shall
be maintained in a form acceptable to the Trust and in compliance with the
provisions of Rule 31a-1 or any successor rule. All such records will be the
property of the Trust and will be made available for inspection and use by the
Trust and its authorized representatives.
SECTION 14. TERM AND APPROVAL. This Agreement shall become effective with
respect to the Fund for an initial two-year term after being approved in
accordance with the requirements of the 1940 Act and executed by the Adviser and
the Trust, and shall thereafter continue from year to year, provided that the
continuation of the Agreement is specifically approved in accordance with the
requirements of the 1940 Act, which currently requires that the continuation be
approved at least annually:
(a) by the Board, or by the vote of "a majority of the outstanding voting
securities" of the Fund (as defined in Section 2(a)(42) of the 1940 Act), and
(b) by the affirmative vote of a majority of the Trust's Trustees who are
not parties to this Agreement or "interested persons" (as defined in the 0000
Xxx) of a party to this Agreement (other than as Trustees of the Trust), by
votes cast in person at a meeting specifically called for such purpose.
SECTION 15. TERMINATION. As required under the 1940 Act, this Agreement may
be terminated with respect to the Fund at any time, without the payment of any
penalty, by vote of the Board or by vote of a majority of the Fund's outstanding
voting securities, or by the Adviser,
6
on sixty (60) days' written notice to the other party. The notice provided for
herein may be waived by the party entitled to receipt thereof. This Agreement
shall automatically terminate in the event of its assignment, the term
"assignment" for purposes of this paragraph having the meaning defined in
Section 2(a)(4) of the 1940 Act, as it may be interpreted by the Commission or
its staff in interpretive releases, or by the Commission staff in no-action
letters issued under the 1940 Act.
This Agreement may also be terminated immediately by the Trust or the
Adviser in the event that either party (i) breaches a material term of this
Agreement; or (ii) commits a material violation of any governing law or
regulation; or (iii) engages in conduct that would have a material adverse
effect upon the reputation or business prospects of such other party.
SECTION 16. INDEMNIFICATION BY THE ADVISER. The Trust shall not be
responsible for, and the Adviser shall indemnify and hold the Trust or any Fund
harmless from and against, any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of or attributable to the
willful misfeasance, bad faith, negligent acts or reckless disregard of
obligations or duties on the part of the Adviser or any of its officers,
directors, employees or agents.
SECTION 17. INDEMNIFICATION BY THE TRUST. In the absence of willful
misfeasance, bad faith, negligence or reckless disregard of duties hereunder on
the part of the Adviser or any of its officers, directors, employees or agents,
the Trust hereby agrees to indemnify and hold harmless the Adviser against all
claims, actions, suits or proceedings at law or in equity whether brought by a
private party or a governmental department, commission, board, bureau, agency or
instrumentality of any kind, arising from the advertising, solicitation, sale,
purchase or pledge of securities, whether of the Fund or other securities,
undertaken by the Fund, their officers, directors, employees or affiliates,
resulting from any violations of the securities laws, rules, regulations,
statutes and codes, whether federal or of any state, by the Fund, their
officers, directors, employees or affiliates.
SECTION 18. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of the Trust
shall be 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: C. Xxxxx Xxxxxxx, and that of the Adviser shall be 000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxx.
SECTION 19. QUESTIONS OF INTERPRETATION. Any question of interpretation of
any term or provision of this Agreement having a counterpart in or otherwise
derived from a term or provision of the 1940 Act shall be resolved by reference
to such terms or provision of the 1940 Act and to interpretations 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 Commission,
interpretations of the Commission or its staff, or Commission staff no-action
letters, issued pursuant to the 1940 Act. In addition, where the effect of a
requirement of the 1940 Act reflected in any provision of this Agreement is
revised by rule, regulation or order of the Commission, such provision shall be
deemed to incorporate the effect of such rule, regulation or
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order. The duties and obligations of the parties under this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
to the extent that state law is not preempted by the provisions of any law of
the United States heretofore or hereafter enacted.
SECTION 20. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement 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. If shareholder approval of an amendment is
required under the 1940 Act, no such amendment shall become effective until
approved by a vote of the majority of the outstanding shares of the affected
Fund. Otherwise, a written amendment of this Agreement is effective upon the
approval of the Board and the Adviser.
SECTION 21. XXXXX FARGO NAME. The Adviser and the Trust each agree that the
name "Xxxxx Fargo," which comprises a component of the Trust's name, is a
property right of the parent of the Adviser. The Trust agrees and consents that:
(i) it will use the words "Xxxxx Fargo" as a component of its corporate name,
the name of any series or class, or all of the above, and for no other purpose;
(ii) it will not grant to any third party the right to use the name "Xxxxx
Fargo" for any purpose; (iii) the Adviser or any corporate affiliate of the
Adviser may use or grant to others the right to use the words "Xxxxx Fargo," or
any combination or abbreviation thereof, as all or a portion of a corporate or
business name or for any commercial purpose, other than a grant of such right to
another registered investment company not advised by the Adviser or one of its
affiliates; and (iv) in the event that the Adviser or an affiliate thereof is no
longer acting as investment adviser to any Fund, the Trust shall, upon request
by the Adviser, promptly take such action as may be necessary to change its
corporate name to one not containing the words "Xxxxx Fargo" and following such
change, shall not use the words "Xxxxx Fargo," or any combination thereof, as a
part of its corporate name or for any other commercial purpose, and shall use
its best efforts to cause its trustees, officers and shareholders to take any
and all actions that the Adviser may request to effect the foregoing and to
reconvey to the Adviser any and all rights to such words.
SECTION 22. RISK ACKNOWLEDGEMENT. The Adviser does not guarantee the future
performance of the Fund or any specific level of performance, the success of any
investment decision or strategy that the Adviser may use, or the success of the
Adviser's overall management of the Fund. The Trust understands that investment
decisions made for the Fund by the Adviser are subject to various market,
currency, economic and business risks, and that those investment decisions will
not always be profitable. The Adviser will manage only the securities, cash and
other investments for which management responsibility is delegated to it and
which are held in the Fund's account(s) and, in making investment decisions for
the Fund, the Adviser will not consider any other securities, cash or other
investments owned by the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
written above.
XXXXX FARGO FUNDS TRUST
on behalf of the Fund
By:
-------------------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
-------------------------------------
Xxxxxx Xxxx
Executive Vice President
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SCHEDULE A
INVESTMENT ADVISORY AGREEMENT
FEE SCHEDULE
XXXXX FARGO FUND TRUST
FEE AS % OF AVERAGE
FUND DAILY NET ASSET VALUE
---- -----------------------
Asset Allocation Fund* First 1B 0.25
Next 4B 0.225
Over 5B 0.20
Schedule A approved by the Board of Trustees: January 11, 2010
The foregoing fee schedule is agreed to as of July 16, 2010 and shall
remain in effect until changed in writing by the parties.
XXXXX FARGO FUNDS TRUST
By:
------------------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
------------------------------------
Xxxxxx Xxxx
Executive Vice President
----------
* At the time the Fund invests some of its assets in two or more registered,
open-end management investment companies in accordance with Section
12(d)(1)(G) under the 1940 Act, the Fund shall pay Funds Management an
additional investment advisory fee of 0.25% for asset allocation services.
A-1
