INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT (the "Agreement") made as of this 28th
day of November, 2016 by and between THE ADVISORS' INNER CIRCLE FUND II (the
"Trust"), a Massachusetts voluntary association (commonly known as a business
trust) registered as an investment company under the Investment Company Act of
1940, as amended (the "1940 Act"), and PanAgora Asset Management, Inc. (the
"Adviser"), a Delaware Corporation with its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx.
W I T N E S S E T H
WHEREAS, the Board of Trustees (the "Board") of the Trust has selected
the Adviser to act as investment adviser to the Trust on behalf of the series
set forth on Schedule A to this Agreement (the "Fund"), as such Schedule may be
amended from time to time upon mutual agreement of the parties, and to provide
certain related services, as more fully set forth below, and to perform such
services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Trust and the Adviser do hereby agree as follows:
1. THE ADVISER'S SERVICES.
(a) DISCRETIONARY INVESTMENT MANAGEMENT SERVICES. The Adviser shall
act as investment adviser with respect to the Fund. In such capacity, the
Adviser shall, subject to the supervision of the Board, regularly provide
the Fund with investment research, advice and supervision and shall furnish
continuously an investment program for the Fund, consistent with the
investment objectives and policies of the Fund, as provided to the Adviser
in writing. The Adviser shall determine, from time to time, what securities
shall be purchased for the Fund, what securities shall be held or sold by
the Fund and what portion of the Fund's assets shall be held uninvested in
cash, subject always to the provisions of the Trust's Agreement and
Declaration of Trust, By-Laws and its registration statement on Form N-1A
(the "Registration Statement") under the 1940 Act, and under the Securities
Act of 1933, as amended (the "1933 Act"), covering Fund shares, as filed
with the Securities and Exchange Commission (the "Commission"), and to the
investment objectives, policies and restrictions of the Fund, as each of
the same shall be from time to time in effect and provided to the Adviser
in writing. To carry out such obligations, the Adviser shall exercise full
discretion and act for the Fund in the same manner and with the same force
and effect as the Fund itself might or could do with respect to purchases,
sales or other transactions in securities, commodity interests, and other
investment instruments; as well as with respect to all other such things
necessary or incidental to the furtherance or conduct of such purchases,
sales or other transactions. No reference in this Agreement to the Adviser
having full discretionary authority over the Fund's investments shall in
any way limit the right of the Board, in its sole discretion, to establish
or revise policies in connection with the management of the Fund's assets
or to otherwise exercise its right to control the overall management of the
Fund.
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(b) COMPLIANCE. The Adviser agrees to comply with the requirements of
the 1940 Act, the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the Commodity Exchange Act and the respective
rules and regulations thereunder, as applicable, as well as with all other
applicable federal and state laws, rules, regulations and case law that
relate to the services and relationships described hereunder and to the
conduct of its business as a registered investment adviser. The Adviser
also agrees to comply with the objectives, policies and restrictions set
forth in the Registration Statement, as amended or supplemented and
provided to the Adviser in writing, of the Fund, and with any policies,
guidelines, instructions and procedures approved by the Board and provided
to the Adviser in writing. In selecting the Fund's portfolio securities and
performing the Adviser's obligations hereunder, the Adviser shall cause the
Fund to comply with the diversification and source of income requirements
of Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), for qualification as a regulated investment company. The Adviser
shall maintain compliance procedures that it reasonably believes are
adequate to ensure its compliance with the foregoing. No supervisory
activity undertaken by the Board shall limit the Adviser's full
responsibility for any of the foregoing.
(c) PROXY VOTING. The Board has the authority to determine how proxies
with respect to securities that are held by the Fund shall be voted, and
the Board has initially determined to delegate the authority and
responsibility to vote proxies for the Fund's securities to the Adviser. So
long as proxy voting authority for the Fund has been delegated to the
Adviser, the Adviser shall exercise its proxy voting responsibilities. The
Adviser shall carry out such responsibility in accordance with any
instructions that the Board shall provide from time to time, and at all
times in a manner consistent with Rule 206(4)-6 under the Advisers Act and
its fiduciary responsibilities to the Fund. The Adviser shall provide
periodic reports and keep records relating to proxy voting as the Board may
reasonably request or as may be necessary for the Fund to comply with the
1940 Act and other applicable law. Any such delegation of proxy voting
responsibility to the Adviser may be revoked or modified by the Board at
any time.
The Adviser is authorized to instruct the Fund's custodian and/or broker(s)
to forward promptly to the Adviser or to its designated service provider
copies of all proxies and shareholder communications relating to securities
held in the portfolio of a Fund (other than materials relating to legal
proceedings against the Fund). The Adviser may also instruct the Fund's
custodian and/or broker(s) to provide reports of holdings in the portfolio
of the Fund. The Adviser has the authority to engage a service provided to
assist with administrative functions related to voting Fund proxies. The
Trust shall direct the Fund's custodian and/or broker(s) to provide any
assistance requested by the Adviser in facilitating the use of a service
provider. In no event shall the Adviser have any responsibility to vote
proxies that are not received on a timely basis. The Trust acknowledges
that the Adviser, consistent with the Adviser's written proxy voting
policies and procedures, may refrain from voting a proxy if, in the
Adviser's discretion, refraining from voting would be in the best interests
of the Fund and its shareholders.
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(d) RECORDKEEPING. The Adviser shall not be responsible for the
provision of administrative, bookkeeping or accounting services to the
Fund, except as specifically provided herein or as may be necessary for the
Adviser to supply to the Trust or its Board the information required to be
supplied under this Agreement.
The Adviser shall maintain separate books and detailed records
pertaining to Fund assets advised by the Adviser required by Rule 31a-1(f)
under the 1940 Act (other than those records being maintained by any
administrator, custodian or transfer agent appointed by the Fund) relating
to its responsibilities provided hereunder with respect to the Fund, and
shall preserve such records for the periods and in a manner prescribed
therefore by Rule 31a-2 under the 1940 Act (the "Fund Books and Records").
The Fund Books and Records shall be delivered to the Trust upon the
termination of this Agreement and shall be available to the Board during
the Adviser's normal business hours.
(e) HOLDINGS INFORMATION AND PRICING. The Adviser shall provide
monthly reports to the Trust regarding Fund holdings, and may, on its own
initiative, furnish the Trust and its Board from time to time with whatever
information the Adviser believes is appropriate for this purpose. The
Adviser agrees to notify the Trust promptly if the Adviser reasonably
believes that the value of any security held by the Fund may not reflect
fair value. The Adviser agrees to provide upon request any pricing
information of which the Adviser is aware to the Trust, its Board and/or
any Fund pricing agent to assist in the determination of the fair value of
any Fund holdings for which market quotations are not readily available or
as otherwise required in accordance with the Trust's valuation procedures
for the purpose of calculating the Fund net asset value in accordance with
procedures and methods established by the Board, and provided to the
Adviser in writing.
(f) COOPERATION WITH AGENTS OF THE TRUST. The Adviser agrees to
cooperate with and provide reasonable assistance to the Trust, any Trust
custodian or foreign sub-custodians, any Trust pricing agents and all other
agents and representatives of the Trust with respect to such information
regarding the Fund as such entities may reasonably request from time to
time in the performance of their obligations, provide prompt responses to
reasonable requests made by such persons and establish appropriate
interfaces with each so as to promote the efficient exchange of information
and compliance with applicable laws and regulations. The Adviser shall not
be responsible for any act or omission of any third party, including,
without limitation, any administrator, distributor, custodian, or transfer
agent for the Fund, or the Trust.
(g) SERVICES NOT EXCLUSIVE. The services of the Adviser rendered to
the Fund are not exclusive. The Adviser may now and in the future manage
other investment accounts, including accounts with investment objectives
and/or investment strategies identical or similar to those of the Fund
("Similar Accounts"). Nothing in this Agreement restricts Adviser from
managing Similar Accounts, entering into other investment management,
advisory, or similar relationships, or otherwise dealing with any
securities for the account of any other client; provided that the Adviser
treats the Fund fairly and allocates investment opportunities in a manner
consistent with its fiduciary obligations to the Fund. The Trust
acknowledges and agrees that: (i) such activities may
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involve substantial time and/or resources of the Adviser; (ii) the Adviser
may charge fees which differ from the fees to be paid to the Adviser
hereunder; and (iii) the Adviser makes no representations, warranties or
guarantees that investment results will be the same for all clients or
accounts managed by the Adviser or that the investment results of the Fund
will be the same as, or better than, the investment results of Similar
Accounts or other accounts that are managed by the Adviser.
2. CODE OF ETHICS. The Adviser has adopted a written code of ethics
that it reasonably believes complies with the requirements of Rule 204A-1 under
the Advisers Act, which it has provided to the Trust. The Adviser has
implemented policies and procedures reasonably designed to ensure that its
Access Persons (as defined in the Adviser's Code of Ethics) comply in all
material respects with the Adviser's Code of Ethics, as in effect from time to
time. Upon request, the Adviser shall provide the Trust with a (i) copy of the
Adviser's current Code of Ethics, as in effect from time to time, and (ii)
certification that it has adopted procedures reasonably necessary to prevent
Access Persons from engaging in any conduct prohibited by the Adviser's Code of
Ethics, Annually, the Adviser shall furnish a written report, which complies
with the requirements of Rule 17j-1, concerning the Adviser's Code of Ethics to
the Trust's Board. The Adviser shall respond to requests for information from
the Trust as to violations of the Code by Access Persons and the sanctions
imposed by the Adviser. The Adviser shall immediately notify the Trust of any
material violation of the Code, whether or not such violation relates to a
security held by the Fund.
3. INFORMATION AND REPORTING. THE Adviser shall provide the Trust and
its officers with such periodic reports concerning the obligations the Adviser
has assumed under this Agreement as the Trust may from time to time reasonably
request.
(a) NOTIFICATION OF BREACH / COMPLIANCE REPORTS. The Adviser shall
notify the Trust's chief compliance officer promptly upon detection of (i)
any material failure to manage the Fund in accordance with its investment
objectives and policies provided to the Adviser in writing or any
applicable law; or (ii) any material breach of any of the Fund's policies,
guidelines or procedures provided to the Adviser in writing, or the
Adviser's policies, guidelines or procedures as they relate to the
management of the Fund. In addition, the Adviser shall provide a quarterly
report regarding the Fund's compliance with such investment objectives,
policies, and applicable law, including, but not limited to the 1940 Act
and Subchapter M of the Code, and the Fund's policies, guidelines or
procedures as applicable to the Adviser's obligations under this Agreement.
The Adviser agrees to seek to correct any such failure promptly, subject to
orderly disposition of assets by the Adviser in its sole discretion, and to
take such further action that the Board may reasonably request in
connection with any such breach. Upon request, the Adviser shall also
provide the officers of the Trust with supporting certifications in
connection with such certifications of Fund financial statements and
disclosure controls pursuant to the Xxxxxxxx-Xxxxx Act. The Adviser will
promptly notify the Trust in the event (i) the Adviser is served or
otherwise receives notice of any action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any
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court, public board, or body, involving the affairs of the Trust (excluding
class action suits in which the Fund is a member of the plaintiff class by
reason of the Fund's ownership of shares in the defendant) or the
compliance by the Adviser with the federal or state securities laws or (ii)
an actual change in control of the Adviser resulting in an "assignment" (as
defined in the 1940 Act) has occurred or is otherwise proposed to occur.
(b) BOARD AND FILINGS INFORMATION. The Adviser will provide the Trust
with any information reasonably requested regarding its management of the
Fund required for any meeting of the Board, or for any shareholder report,
Form N-CSR, Form N-Q, Form N-PX, Form N-SAR, amended registration
statement, proxy statement, or prospectus supplement to be filed by the
Trust with the Commission. The Adviser will make its officers and employees
available to meet with the Board from time to time on due notice to review
its investment management services to the Fund in light of current and
prospective economic and market conditions and shall furnish to the Board
such information as may reasonably be necessary in order for the Board to
evaluate this Agreement or any proposed amendments thereto.
(c) TRANSACTION INFORMATION. The Adviser shall furnish to the Trust
such information concerning portfolio transactions of the Fund as may be
necessary to enable the Trust or its designated agent to perform such
compliance testing on the Fund and the Adviser's services as the Trust may,
in its sole discretion, determine to be appropriate. The provision of such
information by the Adviser to the Trust or its designated agent in no way
relieves the Adviser of its own responsibilities under this Agreement.
4. Brokerage.
(a) PRINCIPAL TRANSACTIONS. In connection with purchases or sales of
securities for the account of the Fund, neither the Adviser nor any of its
directors, officers or employees will act as a principal or agent or
receive any commission except as permitted by the 1940 Act.
(b) PLACEMENT OF ORDERS. The Adviser shall arrange for the placing of
all orders for the purchase and sale of securities for the Fund's account
with brokers or dealers selected by the Adviser. In the selection of such
brokers or dealers and the placing of such orders, the Adviser shall seek
for the Fund the most favorable execution available under the
circumstances. The Adviser shall not be responsible for any acts or
omissions by any such broker or brokers; PROVIDED that the Adviser is not
negligent in the selection of such broker or brokers. It is also understood
that it is desirable for the Fund that the Adviser have access to brokerage
and research services provided by brokers who may execute brokerage
transactions at a higher cost to the Fund than may result when allocating
brokerage to other brokers, consistent with section 28(e) of the 1934 Act
and any Commission staff interpretations thereof. Therefore, the Adviser is
authorized to place orders for the purchase and sale of securities for the
Fund with such brokers, subject to review by the Board from time to time to
determine whether such commissions, paid over representative periods of
time, were reasonable in relation to the services and benefits provided to
the Fund. It is understood that the services provided by
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such brokers may be useful to the Adviser in connection with its or its
affiliates' services to other clients.
(c) AGGREGATED TRANSACTIONS. On occasions when the Adviser deems the
purchase or sale of a security to be in the best interest of the Fund as
well as other clients of the Adviser, the Adviser may, to the extent
permitted by applicable law and regulations, aggregate the order for
securities to be sold or purchased. In such event, the Adviser will
allocate securities or futures contracts so purchased or sold, as well as
the expenses incurred in the transaction, in the manner the Adviser
reasonably considers to be equitable and consistent with its fiduciary
obligations to the Fund and to such other clients under the circumstances.
(d) AFFILIATED BROKERS. The Adviser or any of its affiliates may act
as broker in connection with the purchase or sale of securities or other
investments for the Fund, subject to: (a) the requirement that the Adviser
seek to obtain best execution and price within the policy guidelines
determined by the Board and set forth in the Fund's current Registration
Statement; (b) the provisions of the 1940 Act; (c) the provisions of the
Advisers Act; (d) the provisions of the 1934 Act; and (e) other provisions
of applicable law. These brokerage services are not within the scope of the
duties of the Adviser under this Agreement. Subject to the requirements of
applicable law and any procedures adopted by the Board, the Adviser or its
affiliates may receive brokerage commissions, fees or other remuneration
from the Fund for these services in addition to the Adviser's fees for
services under this Agreement.
5. CUSTODY. Nothing in this Agreement shall permit the Adviser to take
or receive physical possession of cash, securities or other investments of the
FUND. Unless the Adviser otherwise agrees in writing, the Adviser will not
advise or take any action on behalf of the Fund in any contemplated or actual
legal proceedings, including, but not limited to, bankruptcies, tax reclaims or
class actions, involving the issuers of securities held or formerly held as part
or all of the Investment Assets.
6. ALLOCATION OF CHARGES AND EXPENSES. The Adviser will bear its own
costs of providing services hereunder. Other than as herein specifically
indicated, the Adviser shall not be responsible for the Fund's expenses,
including brokerage and other expenses incurred in placing orders for the
purchase and sale of securities and other investment instruments.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) PROPERLY REGISTERED. The Adviser is registered as an investment
adviser under the Advisers Act, and will remain so registered for the
duration of this Agreement. The Adviser is not prohibited by the Advisers
Act or the 1940 Act from performing the services contemplated by this
Agreement, and to the best knowledge of the Adviser, there is no proceeding
or investigation that is reasonably likely to result in the Adviser being
prohibited from performing the services contemplated by this Agreement. The
Adviser agrees to promptly notify the Trust of the occurrence of any event
that would disqualify the Adviser from serving as an investment adviser to
an investment company. The
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Adviser is in compliance in all material respects with all applicable federal
and state law in connection with its investment management operations.
(b) ADV DISCLOSURE. The Adviser has provided the Trust with a copy of
its Form ADV Part 1 as most recently filed with the SEC and its current
Part 2A and will, promptly after filing any amendment to its Form ADV with
the SEC updating its Part 2A, furnish a copy of such amendments or updates
to the Trust. The information contained in the Adviser's Form ADV is
accurate and complete in all material respects and does not omit to state
any material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading.
(c) FUND DISCLOSURE DOCUMENTS. The Adviser has reviewed, and will in
the future review, the Registration Statement, summary prospectus,
prospectus, statement of additional information, periodic reports to
shareholders, reports and schedules provided to the Adviser and filed with
the Commission (including any amendment, supplement or sticker to any of
the foregoing) and advertising and sales material relating to the Fund
provided by the Adviser (collectively the "Disclosure Documents") and
represents and warrants, with respect to disclosure regarding the Adviser
and the investment strategy employed by the Adviser in managing the Fund,
that such Disclosure Documents contain or will contain no untrue statement
of any material fact and do not and will not omit any statement of material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(d) USE OF THE NAME "PANAGORA". The Adviser has the right to use the
name "PanAgora" in connection with its services to the Trust and that,
subject to the terms set forth in Section 8 of this Agreement, the Trust
shall have the right to use the name "PanAgora" in connection with the
management and operation of the Fund. The Adviser is not aware of any
threatened or existing actions, claims, litigation or proceedings that
would adversely affect or prejudice the rights of the Adviser or the Trust
to use the name "PanAgora."
(e) INSURANCE. The Adviser maintains errors and omissions insurance
coverage in an appropriate amount and shall provide prior written notice to
the Trust (1) of any material changes in its insurance policies or
insurance coverage; or (ii) if any material claims will be made on its
insurance policies. Furthermore, the Adviser shall, upon reasonable
request, provide the Trust with any information it may reasonably require
concerning the amount of or scope of such insurance.
(f) NO DETRIMENTAL AGREEMENT. The Adviser represents and warrants that
it has no arrangement or understanding with any party that would violate
its fiduciary duties with respect to the selection of securities for the
Fund, and that all selections shall be done in accordance with what is in
the best interest of the Fund.
(g) CONFLICTS. The Adviser shall act honestly, in good faith and in
the best interests of the Trust including requiring any of its personnel
with knowledge of Fund activities to place the interest of the Fund first,
ahead of their own interests, in all
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personal trading scenarios that may involve a conflict of interest with the
Fund, consistent with its fiduciary duties under applicable law and its
Code of Ethics.
(h) REPRESENTATIONS. The representations and warranties in this
Section 7 shall be deemed to be made on the date this Agreement is executed
and at the time of delivery of the quarterly compliance report required by
Section 3(a), whether or riot specifically referenced in such report.
8. THE NAME "PANAGORA". The Adviser grants to the Trust a license to
use the name "PanAgora" (the "Name") as part of the name of the Fund. The
foregoing authorization by the Adviser to the Trust to use the Name as part of
the name of the Fund is not exclusive of the right of the Adviser itself to
use, or to authorize others to use, the Name; the Trust acknowledges and agrees
that, as between the Trust and the Adviser, the Adviser has the right TO use,
or authorize others to use, the Name. The Trust shall (1) only use the Name in
a manner consistent with uses approved by the Adviser; (2) use its best efforts
to maintain the quality of the services offered using the Name; (3) adhere to
such other specific quality control standards as THE Adviser may from time to
time promulgate. At the request of the Adviser, the Trust will (a) submit to
Adviser representative samples of any promotional materials using the Name; and
(b) change the name of the Fund within three months of its receipt of the
Adviser's request, or such other shorter time period as may be required under
the terms of a settlement agreement or court order, so as to eliminate all
reference to the Name and will not thereafter transact any business using the
Name in the name of the Fund; provided, however, that the Trust may continue to
use beyond such date any supplies of prospectuses, marketing materials and
similar documents that the Trust had on the date of such name change in
quantities not exceeding those historically produced and used in connection
with such Fund.
9. ADVISER'S COMPENSATION. The Fund shall pay to the Adviser, as
compensation for the Adviser's services hereunder, a fee, determined as
described in Schedule A that is attached hereto and made a part hereof. Such
fee shall be computed daily and paid not less than monthly in arrears by the
Fund.
The method for determining net assets of the Fund for purposes hereof
shall be the same as the method for determining net assets for purposes of
establishing the offering and redemption prices of Fund shares as described in
the Fund's prospectus. In the event of termination of this Agreement, the fee
provided in this Section shall be computed on the basis of the period ending on
the last business day on which this Agreement is in effect subject to a pro
rata adjustment based on the number of days elapsed in the current month as a
percentage of the total number of days in such month.
10. INDEPENDENT CONTRACTOR. In the performance of its duties
hereunder, the Adviser is and shall be an independent contractor and, unless
otherwise expressly provided herein or otherwise authorized in writing, shall
have no authority to act for or represent THE Trust or the Fund in any way or
otherwise be deemed to be an agent of the Trust or the Fund. If any occasion
should arise in which the Adviser gives any advice to its clients concerning
the shares of the Fund, the Adviser will act solely as investment counsel for
such clients and not in any way on behalf of the Fund.
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11. ASSIGNMENT AND AMENDMENTS. This Agreement shall automatically
terminate, without the payment of any penalty, in the event of its assignment
(as defined in section 2(a)(4) of the 1940 Act); provided that such termination
shall not relieve the Adviser of any liability incurred hereunder.
This Agreement may not be added to or changed orally and may not be
modified or rescinded except by a writing signed by the parties hereto and in
accordance with the 1940 Act, when applicable.
12. DURATION AND TERMINATION.
This Agreement shall become effective as of the date executed and
shall remain in full force and effect continually thereafter, subject to
renewal as provided in Section 12(c) and unless terminated automatically as set
forth in Section 11 hereof or until terminated as follows:
(a) The Trust may cause this Agreement to terminate either (i) by vote
of its Board or (ii) with respect to the Fund, upon the affirmative vote of
a majority of the outstanding voting securities of the Fund; or
(b) The Adviser may at any time terminate this Agreement by not more
than sixty (60) days' nor less than thirty (30) days' written notice
delivered or mailed by registered mail, postage prepaid, to the Trust; or
(c) This Agreement shall automatically terminate two years from the
date of its execution unless its renewal is specifically approved at least
annually thereafter by (i) a majority vote of the Trustees, including a
majority vote of such Trustees who are not interested persons of the Trust
or the Adviser, at a meeting called for the purpose of voting on such
approval; or (ii) the vote of a majority of the outstanding voting
securities of the Fund; provided, however, that if the continuance of this
Agreement is submitted to the shareholders of the Fund for their approval
and such shareholders fail to approve such continuance of this Agreement as
provided herein, the Adviser may continue to serve hereunder as to the Fund
in a manner consistent with the 1940 Act and the rules and regulations
thereunder; and
(d) Termination of this Agreement pursuant to this Section shall be
without payment of any penalty.
In the event of termination of this Agreement for any reason, the
Adviser shall, immediately upon notice of termination or on such later date as
may be specified in such notice, cease all activity on behalf of the Fund and
with respect to any of its assets, except as otherwise required by any
fiduciary duties of the Adviser under applicable law. In addition, the Adviser
shall deliver the Fund Books and Records to the Trust by such means and in
accordance with such schedule as the Trust shall direct and shall otherwise
cooperate, as reasonably directed by the Trust, in the transition of portfolio
asset management to any successor of the Adviser.
13. CERTAIN DEFINITIONS. For the purposes of this Agreement:
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(a) "Affirmative vote of a majority of the outstanding voting
securities of the Fund" shall have the meaning as set forth in the 1940
Act, subject, however, to such exemptions as may be granted by the
Commission under the 1940 Act or any interpretations of the Commission
staff.
(b) "Interested persons" and "Assignment" shall have their respective
meanings as set forth in the 1940 Act, subject, however, to such exemptions
as may be granted by the Commission under the 1940 Act or any
interpretations of the Commission staff.
14. Liability of the Adviser.
(a) The Adviser shall have responsibility for the accuracy and
completeness (and liability for the lack thereof) of statements in the
Fund's Disclosure Documents solely to the extent such statements relate to
disclosure regarding the Adviser and the investment strategy employed by
the Adviser in managing the Fund, and provided that any changes to such
disclosure are first acknowledged by the Adviser in writing.
(b) The Adviser shall be liable to the Fund for any loss (including
transaction costs) incurred by the Fund as a result of any investment made
by the Adviser in contravention of: (i) any investment policy, guideline or
restriction set forth in the Registration Statement or as approved by the
Board from time to time and provided to the Adviser; OR (ii) applicable
law, including but not limited to the 1940 Act and the Code (including but
not limited to the Fund's failure to satisfy the diversification or source
of income requirements of Subchapter M of the Code) (the investments
described in this subsection (b) collectively are referred to as "Improper
Investments").
(c) Subject to the provisions of Section 3(a) and 14(a) of this
Agreement, the Adviser shall indemnify and hold harmless the Trust, each
affiliated person of the Trust within the meaning of Section 2(a)(3) of the
1940 Act, and each person who controls the Trust within the meaning of
Section 15 of the 1933 Act (any such person, an "Indemnified Party")
against any and all losses, claims, damages, expenses or liabilities
(including the reasonable cost of investigating and defending any alleged
loss, claim, damage, expense or liability and reasonable counsel fees
incurred in connection therewith) to which any such person may become
subject under the 1933 Act, the 1934 Act, the 1940 Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) a breach by the
Adviser of this Agreement or of the representations and warranties made by
the Adviser herein; (ii) any Improper Investment; (iii) any untrue
statement or alleged untrue statement of a material fact related to the
management of the Fund's investment portfolio contained in any Disclosure
Document or the omission or alleged omission from a Disclosure Document of
a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (iv) the Adviser's performance or
non-performance of its duties hereunder; provided, however, that nothing
herein shall be deemed to protect any Indemnified Party who is a Trustee or
officer of the Trust against any liability to the Trust
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or to its shareholders to which such Indemnified Party would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such person's
office with the Trust.
15. ENFORCEABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms or provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
16. LIMITATION OF LIABILITY. The parties to this Agreement acknowledge
and agree that all litigation arising hereunder, whether direct or indirect,
and of any and every nature whatsoever shall be satisfied solely out of the
assets of the affected Fund and that no Trustee, officer or holder of shares of
beneficial interest of the Fund shall be personally liable for any of the
foregoing liabilities. The Trust's Certificate of Trust, as amended from time
to time, is on file in the Office of the Secretary of State of the Commonwealth
of Massachusetts. Such Certificate of Trust and the Trust's Agreement and
Declaration of Trust describe in detail the respective responsibilities and
limitations on liability of the Trustees, officers, and holders of shares of
beneficial interest.
17. CHANGE IN THE ADVISER'S OWNERSHIP. The Adviser agrees that it
shall notify the Trust of any anticipated or otherwise reasonably foreseeable
change in the ownership of the Adviser within a reasonable time prior to such
change being effected.
18. JURISDICTION. This Agreement shall be governed by and construed in
accordance with the substantive laws of Commonwealth of Massachusetts and the
Adviser consents to the jurisdiction of courts, both state or federal, in
Massachusetts, with respect to any dispute under this Agreement.
19. PARAGRAPH HEADINGS. The headings of paragraphs contained in this
Agreement are provided for convenience only, form no part of this Agreement and
shall not affect its construction.
20. COUNTERPARTS. 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.
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.
11
THE ADVISORS' INNER CIRCLE FUND II on
behalf of the Fund(s) listed on Schedule A
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: President
PANAGORA ASSET MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Compliance Officer
SCHEDULE A
TO THE
INVESTMENT ADVISORY AGREEMENT
DATED NOVEMBER 28, 2016 BETWEEN
THE ADVISORS' INNER CIRCLE FUND II
AND
PANAGORA ASSET MANAGEMENT, INC.
The Trust will pay to the Adviser as compensation for the Adviser's services
rendered, a fee, computed daily at an annual rate based on the average daily
net assets of the Fund in accordance the following fee schedule:
FUND RATE
PanAgora Diversified Arbitrage Yield Fund 1.00%
