EXHIBIT 23(D)(VI)
SUB-ADVISORY AGREEMENT
AGREEMENT made as of December 17, 2008, among WENTWORTH, XXXXXX AND
XXXXXXX, INC. (herein called the "INVESTMENT ADVISER"), HIRAYAMA INVESTMENTS,
LLC (herein called the "SUB-ADVISER"), and FUNDVANTAGE TRUST, a Delaware
Statutory Trust (herein called the "TRUST") on behalf of the WHV INTERNATIONAL
EQUITY FUND, a series of the Trust (herein called the "FUND"), and
WHEREAS, the Trust is a series trust registered as an open-end
management investment company under the Investment Company Act of 1940 (the
"1940 ACT"), and currently proposes to offer shares representing interests in
the Fund, a separate and distinct series of the Trust;
WHEREAS, the Investment Adviser is the investment adviser to the Fund;
WHEREAS, the Investment Adviser wishes to retain the Sub-Adviser to
render certain investment advisory services to the Fund, and the Sub-Adviser is
willing to so render such services; and
WHEREAS, the Board of Trustees of the Trust have approved this
Agreement, and the Sub-Adviser is willing to furnish such services upon the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, it is agreed between
the parties hereto as follows:
SECTION 1. APPOINTMENT. Each of the Trust and Investment Adviser hereby
appoints the Sub-Adviser to act as sub-adviser for the Fund for the period and
on the terms set forth in this Agreement. The Investment Adviser makes such
appointment pursuant to the requirements of the Investment Advisory Agreement
dated December 17, 2008 between the Investment Adviser and the Trust, on behalf
of the Fund (such agreement or the most recent successor agreement between such
parties is herein called the "ADVISORY AGREEMENT"). The Sub-Adviser accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
SECTION 2. DELIVERY OF DOCUMENTS. The Trust has furnished or will furnish
the Sub-Adviser with copies of each of the following:
a. Resolutions of the Board of Trustees of the Trust authorizing the
appointment of the Sub-Adviser and the execution and delivery of this Agreement;
and
b. Each prospectus and statement of additional information relating to
any class of Shares representing interests in the Fund in effect under the
Securities Act of 1933 (such prospectus and statement of additional information,
as presently in effect and as they shall from time to time be amended and
supplemented, are herein collectively called the "PROSPECTUS" and "SAI,"
respectively).
SECTION 3. SUB-ADVISORY SERVICES TO THE FUND. Subject to the supervision of
the Board of Trustees of the Trust and the Investment Adviser, the Sub-Adviser
will provide for the management of the Fund including (i) the provision of a
continuous investment program for the Fund, including investment research and
management with respect to all securities, investments, cash and cash
equivalents in the Fund, (ii) the determination from time to time of what
securities and other investments will be purchased, retained, or sold for the
Fund, and (iii) the placement from time to time of orders for all purchases and
sales made for the Fund. The Sub-Adviser will provide the services rendered by
it hereunder in accordance with the Fund's investment objectives, restrictions
and policies as stated in the applicable Prospectus and SAI, provided that the
Sub-Adviser has notice or knowledge of any changes by the Board of Trustees to
such investment objectives, restrictions or policies. The Sub-Adviser further
agrees that it will render to the Board of Trustees or the Investment Adviser,
such periodic and special reports regarding the performance of its duties under
this Agreement as the Board or the Investment Adviser may reasonably request.
The Sub-Adviser agrees to provide to the Trust (or their agents and service
providers) prompt and accurate data with respect to the Fund's transactions and,
where not otherwise available, the daily valuation of securities in the Fund.
SECTION 4. BROKERAGE. Subject to the Sub-Adviser's obligation to obtain
best price and execution, the Sub-Adviser shall have full discretion to select
brokers or dealers to effect the purchase and sale of securities. When the
Sub-Adviser places orders for the purchase or sale of securities for the Fund,
in selecting brokers or dealers to execute such orders, the Sub-Adviser is
expressly authorized to consider the fact that a broker or dealer has furnished
statistical, research or other information or services for the benefit of the
Fund directly or indirectly. Without limiting the generality of the foregoing,
the Sub-Adviser is authorized to cause the Fund to pay brokerage commissions
which may be in excess of the lowest rates available to brokers who execute
transactions for the Fund or who otherwise provide brokerage and research
services utilized by the Sub-Adviser, provided that the Sub-Adviser determines
in good faith that the amount of each such commission paid to a broker is
reasonable in relation to the value of the brokerage and research services
provided by such broker viewed in terms of either the particular transaction to
which the commission relates or the Sub-Adviser's overall responsibilities with
respect to accounts as to which the Sub-Adviser exercises investment discretion.
The Sub-Adviser may aggregate securities orders so long as the Sub-Adviser
adheres to a policy of allocating investment opportunities to the Fund over a
period of time on a fair and equitable basis relative to other clients. In no
instance will the Fund's securities be purchased from or sold to the Trust's
principal underwriter, the Investment Adviser, the Sub-Adviser or any affiliated
person thereof, except to the extent permitted by SEC exemptive order or by
applicable law.
The Sub-Adviser shall report to the Board of Trustees of the Trust at
least quarterly with respect to brokerage transactions that were entered into by
the Sub-Adviser, pursuant to the foregoing paragraph, and shall certify to the
Board that the commissions paid were reasonable in terms either of that
transaction or the overall responsibilities of the Sub-Adviser to the Fund and
the Sub-Adviser's other clients, that the total commissions paid by the Fund
were reasonable in relation to the benefits to the Fund over the long term.
Further, the Sub-Adviser will disclose to the Board of Trustees: (i) all
material new or amended arrangements it may have with regard to the Fund'
securities transactions, (ii) the utilization of "soft dollar commissions" by
the Fund and the Sub-Adviser with respect to the Fund, and (iii) such other
matters as the Board of Trustees may reasonably request.
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SECTION 5. CONFORMITY WITH LAW; CONFIDENTIALITY. The Sub-Adviser further
agrees that it will comply with all applicable rules and regulations of all
federal regulatory agencies having jurisdiction over the Sub-Adviser in the
performance of its duties hereunder. The Sub-Adviser will treat confidentially
and as proprietary information of the Trust all records and other information
relating to the Trust and will not use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where the
Sub-Adviser may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Trust.
Where the Sub-Adviser maybe exposed to civil or criminal contempt
proceedings for failure to comply with a request for records or other
information relating to the Trust, the Sub-Adviser may comply with such request
prior to obtaining the Trust's written approval, provided that the Sub-Adviser
has taken reasonable steps to promptly notify the Trust, in writing, upon
receipt of the request.
SECTION 6. SERVICES NOT EXCLUSIVE. The Sub-Adviser and its officers may act
and continue to act as investment managers for others, and nothing in this
Agreement shall in any way be deemed to restrict the right of the Sub-Adviser to
perform investment management or other services for any other person or entity,
and the performance of such services for others shall not be deemed to violate
or give rise to any duty or obligation to the Fund or the Trust.
Nothing in this Agreement shall limit or restrict the Sub-Adviser or
any of its members, partners, officers, affiliates or employees from buying,
selling or trading in any securities for its or their own account. Each of the
Trust and the Investment Adviser acknowledges that the Sub-Adviser and its
members, partners, officers, affiliates, employees and other clients may, at any
time, have, acquire, increase, decrease, or dispose of positions in investments
which are at the same time being acquired or disposed of for the Fund. The
Sub-Adviser shall have no obligation to acquire for the Fund a position in any
investment which the Sub-Adviser, its members, partners, officers, affiliates or
employees may acquire for its or their own accounts or for the account of
another client, so long as it continues to be the policy and practice of the
Sub-Adviser not to favor or disfavor consistently or consciously any client or
class of clients in the allocation of investment opportunities so that, to the
extent practical, such opportunities will be allocated among clients over a
period of time on a fair and equitable basis.
The Sub-Adviser agrees that this Section does not constitute a waiver
by the Trust or the Investment Adviser of the obligations imposed upon the Sub-
Adviser to comply with Sections 17(d) and 17(j) of the 1940 Act, and the rules
thereunder, nor constitute a waiver by the Trust or the Investment Adviser of
the obligations imposed upon the Sub-Adviser under Section 206 of the Investment
Advisers Act of 1940 and the rules thereunder. Further, the Sub-Adviser agrees
that this does not constitute a waiver by the Trust or the Investment Adviser of
the fiduciary obligation of the Sub-Adviser arising under federal or state law,
including Section 36 of the 1940 Act. The Sub-Adviser agrees that this Section 7
shall be interpreted consistent with the provisions of Section 17(i) of the 1940
Act.
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SECTION 7. BOOKS AND RECORDS. In compliance with the requirements of Rule
3la-3 under the 1940 Act, the Sub-Adviser hereby agrees that all records which
it maintains for the Fund are the property of the Trust and further agrees to
surrender promptly to the Trust or the Investment Adviser any of such records
upon the Trust's or the Investment Adviser's request. The Sub-Adviser further
agrees to preserve for the periods prescribed by Rule 3la-2 under the 1940 Act
the records required to be maintained by Rule 3la-1 under the 1940 Act.
SECTION 8. EXPENSES. During the term of this Agreement, the Sub-Adviser
will pay all expenses incurred by it in connection with its activities under
this Agreement.
SECTION 9. VOTING. The Investment Adviser has authority to vote as agent
for the Trust pursuant to the Advisory Agreement. The Investment Adviser
reserves the right to delegate to the Sub-Adviser such authority to vote as
agent for the Trust, either in person or by proxy, tender and take all actions
incident to the ownership of all securities in which the Fund's assets may be
invested from time to time, subject to such policies and procedures as the Board
of Trustees of the Trust, the Investment Adviser or Sub-Adviser may adopt from
time to time. Any delegation by the Investment Adviser to the Sub-Adviser of
this authority to vote shall be in writing.
SECTION 10. COMPENSATION.
a. For the services provided and the expenses assumed pursuant to this
Agreement with respect to the Fund, the Investment Adviser will pay to the
Sub-Adviser and the Sub-Adviser will accept as full compensation therefore from
the Investment Adviser a fee, as set forth on Schedule A to this Agreement. For
any period less than a full quarter during which this Agreement is in effect,
the fee shall be prorated according to the proportion which such period bears to
a full quarter. The Investment Adviser shall inform the Sub-Adviser prior to
waiving any fees under the Advisory Agreement.
b. The Sub-Adviser may from time to time agree not to impose all or a
portion of its fee otherwise payable hereunder (in advance of the time such fee
or portion thereof would otherwise accrue) and/or undertake to pay or reimburse
the Fund or Investment Adviser for all or a portion of its expenses not
otherwise required to be borne or reimbursed by the Sub-Adviser.
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SECTION 11. LIMITATION OF LIABILITY. The Sub-Adviser shall not be liable
for any loss suffered by the Trust in connection with the matters to which this
Agreement relates, except a loss resulting from a breach of fiduciary duty with
respect to the receipt of compensation for services or a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of the
Sub-Adviser in the performance of its duties or from reckless disregard by it of
its obligations and duties under this Agreement ("DISABLING CONDUCT"). The Fund
will indemnify the Sub-Adviser against and hold it harmless from any and all
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any claim, demand, action or suit not
resulting from disabling conduct by the Sub-Adviser. Indemnification shall be
made only following: (i) a final decision on the merits by a court or other body
before whom the proceeding was brought that the Sub-Adviser was not liable by
reason of disabling conduct or (ii) in the absence of such a decision, a
reasonable determination, based upon a review of the facts, that the Sub-Adviser
was not liable by reason of disabling conduct by (a) the vote of a majority of a
quorum of directors of the Trust who are neither "INTERESTED PERSONS" of the
Trust nor parties to the proceeding ("DISINTERESTED NON-PARTY DIRECTORS") or (b)
an independent legal counsel in a written opinion. The Sub- Adviser shall be
entitled to advances from the Fund for payment of the reasonable expenses
incurred by it in connection with the matter as to which it is seeking
indemnification in the manner and to the fullest extent permissible under the
Delaware Statutory Trust Act. The Sub-Adviser shall provide to the Fund a
written affirmation of its good faith belief that the standard of conduct
necessary for indemnification by the Fund has been met and a written undertaking
to repay any such advance if it should ultimately be determined that the
standard of conduct has not been met. In addition, at least one of the following
additional conditions shall be met: (a) the Sub-Adviser shall provide a security
in form and amount acceptable to the Fund for its undertaking; (b) the Fund is
insured against losses arising by reason of the advance; or (c) a majority of a
quorum of disinterested non-party directors, or independent legal counsel, in a
written opinion, shall have determined, based upon a review of facts readily
available to the Fund at the time the advance is proposed to be made, that there
is reason to believe that the Sub-Adviser will ultimately be found to be
entitled to indemnification. Any amounts payable by the Fund under this Section
shall be satisfied only against the assets of the Fund and not against the
assets of any other investment portfolio of the Trust.
SECTION 12. DURATION AND TERMINATION. This Agreement shall become effective
and continue for an initial two year period as of the date first above written
unless sooner terminated as provided herein with respect to the Fund.
Thereafter, if not terminated, this Agreement shall continue for successive
annual periods, PROVIDED such continuance is specifically approved at least
annually (a) by the vote of a majority of those members of the Board of Trustees
of the Trust who are not parties to this Agreement or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on such
approval, and (b) by the Board of Trustees of the Trust or by vote of a majority
of the outstanding voting securities of the Fund; PROVIDED, HOWEVER, that this
Agreement may be terminated with respect to the Fund by the Trust at any time,
without the payment of any penalty, by the Board of Trustees of the Trust or by
vote of a majority of the outstanding voting securities of a Fund, on 60 days'
prior written notice to the Sub-Adviser, or by the Sub-Adviser at any time,
without payment of any penalty, on 90 days' prior written notice to the Trust
and the Investment Adviser. This Agreement will immediately terminate in the
event of its assignment or in the event of the termination of the Advisory
Agreement.
SECTION 13. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may
be changed, discharged or terminated orally, except by an instrument in writing
signed by all parties, and no amendment of this Agreement affecting the Fund
shall be effective, to the extent required by the 1940 Act, until the applicable
shareholders of the Fund in the manner required by the 1940 Act and the rules
thereunder, subject to any applicable orders of exemption issued by the
Securities and Exchange Commission.
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SECTION 14. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by Delaware law.
SECTION 15. DEFINITIONS. As used in this Agreement, the terms "AFFILIATED
PERSON," "ASSIGNMENT," "INTERESTED PERSON," "MAJORITY OF THE OUTSTANDING VOTING
SECURITIES" AND "PRINCIPAL UNDERWRITER" shall have the same meaning as such
terms have in the 1940 Act and the rules and regulations thereunder, subject to
any applicable orders of exemption issued by the Securities and Exchange
Commission.
SECTION 16. NOTICE. All notices hereunder shall be given in writing and
delivered by hand, national overnight courier, facsimile (provided written
confirmation of receipt is obtained and said notice is sent via first class mail
on the next business day) or mailed by certified mail, return receipt requested,
as follows:
IF TO THE SUB-ADVISER:
Hirayama Investments, LLC
Attn: Xxxxxxx X. Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
IF TO THE INVESTMENT ADVISER:
Wentworth, Xxxxxx and Xxxxxxx, Inc.
Attn: Xxxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
IF TO THE TRUST:
FundVantage Trust
Attn: Xxxx Xxxxx, President
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
WITH COPY TO:
Xxxxxx X. Del Xxxx, Esq.
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
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The effective date of any notice shall be (i) the date such notice is
sent if such delivery is effected by hand or facsimile, (ii) one business day
after the date such notice is sent if such delivery is effected by national
overnight courier; or (iii) the third (3rd) business day after the date of
mailing thereof.
SECTION 17. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without giving effect to the conflicts of laws principles thereof.
SECTION 18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
WENTWORTH, XXXXXX AND XXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
HIRAYAMA INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Member
FUNDVANTAGE TRUST
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: President
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SCHEDULE A
DATED DECEMBER 17, 2008
TO THE
SUB-ADVISORY AGREEMENT DATED DECEMBER 17, 2008
AMONG
WENTWORTH, XXXXXX AND XXXXXXX, INC.,
HIRAYAMA INVESTMENTS, LLC
AND
FUNDVANTAGE TRUST
SUB-ADVISORY FEE SCHEDULE
Under the Advisory Agreement, the Investment Adviser is entitled to receive from
the Fund an investment advisory fee at the annual rate of 1.00% of the Fund's
average daily net assets (the "Advisory Fee"). The Sub-Adviser is entitled to
receive from the Investment Adviser a percentage of the Advisory Fee actually
received by the Investment Adviser, as such Advisory Fee may be reduced from
time to time due to waiver or reimbursement arrangements as disclosed in the
Trust's registration statement then in effect (the "Sub-Advisory Fee"). For the
purposes of determining the Sub-Advisory Fee, the assets in the Fund will be
aggregated with all other assets under management of the Investment Adviser and
sub-advised by the Sub-Adviser ("Assets").
The Sub-Advisory Fee shall be determined as follows:
1. If Assets are less than or equal to $10 billion then the Investment Adviser
shall retain 45% of the Advisory Fee and the Sub-Adviser shall be paid 55%
of the Advisory Fee.
2. For each additional $100 million in Assets in excess of $10 billion, the
percentage of the Advisory Fee retained by the Investment Adviser shall be
reduced by 0.15 percentage points and the percentage of the Advisory Fee
paid to the Sub-Adviser shall be increased by 0.15 percentage points, but
in no event shall the percentage of the Advisory Fee paid to the
Sub-Adviser exceed 70%, regardless of the value of Assets or the Fund's
assets.
EXAMPLE 1
Assuming (i) the Fund's average daily net assets are valued at
$100,000,000; (ii) Assets are valued at $10,100,000,000 (which includes the
Fund's average daily net assets); and (iii) the Investment Adviser actually
receives the full 1.00% Advisory Fee or $1 million, then the Adviser will
retain 44.85% of the Advisory Fee or $448,500) and the Sub-Adviser will be
paid 55.15% of the Advisory Fee or $551,500.
EXAMPLE 2
Assuming (i) the Fund's average daily net assets are valued at
$100,000,000; (ii) Assets are valued at $20,000,000,000 (which includes the
Fund's average daily net assets); and (iii) the Investment Adviser actually
receives the full 1.00% Advisory Fee or $1 million, then the Adviser will
retain 30% of the Advisory Fee or $300,000) and the Sub-Adviser will be
paid 70% of the Advisory Fee or $700,000.
EXAMPLE 3
Assuming (i) the Fund's average daily net assets are valued at
$100,000,000; (ii) Assets are valued at $25,000,000,000 (which includes the
Fund's average daily net assets); and (iii) the Investment Adviser actually
receives the full 1.00% Advisory Fee or $1 million, then the Adviser will
retain 30% of the Advisory Fee or $300,000) and the Sub-Adviser will be
paid 70% of the Advisory Fee or $700,000.
The fees payable to the Sub-Adviser shall be payable quarterly, thirty days
after quarter end or as soon as practicable. Assets will be determined
quarterly. As stated above and solely for the purpose of determining the
Sub-Advisory Fee, the assets of the Fund will be aggregated with other Assets.
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