TRUST FOR PROFESSIONAL MANAGERS INVESTMENT ADVISORY AGREEMENT Geneva Advisors All Cap Growth Fund
Geneva
Advisors All Cap Growth Fund
THIS
INVESTMENT ADVISORY AGREEMENT
is made as of the 20th
day of October, 2006, by and between Trust for Professional Managers,
(hereinafter called the “Trust”), on behalf of Geneva Advisors All Cap Growth
Fund (the “Fund”), a series of the Trust, and Geneva Investment Management of
Chicago, LLC (hereinafter called the “Adviser;”).
WITNESSETH:
WHEREAS,
the Trust is an open-end management investment company, registered as such
under
the Investment Company Act of 1940 (the “Investment Company Act”); and
WHEREAS,
the Fund is a series of the Trust having separate assets and liabilities; and
WHEREAS,
the Adviser is registered as an investment adviser under the Investment Advisers
Act of 1940 (the “Advisers Act”) and is engaged in the business of supplying
investment advice as an independent contractor; and
WHEREAS,
the Trust desires to retain the Adviser to render advice and services to the
Fund pursuant to the terms and provisions of this Agreement, and the Adviser
desires to furnish said advice and services;
NOW,
THEREFORE,
in consideration of the covenants and the mutual promises hereinafter set forth,
the parties to this Agreement, intending to be legally bound hereby, mutually
agree as follows:
1.
APPOINTMENT OF ADVISER.
The Trust hereby employs the Adviser and the Adviser hereby accepts such
employment, to render investment advice and related services with respect to
the
assets of the Fund for the period and on the terms set forth in this Agreement,
subject to the supervision and direction of the Board of Trustees.
2.
DUTIES OF ADVISER.
(a)
GENERAL
DUTIES.
The Adviser shall act as investment adviser to the Fund and shall supervise
investments of the Fund on behalf of the Fund in accordance with the investment
objectives, policies and restrictions of the Fund as set forth in the Fund’s and
Trust’s governing documents, including, without limitation, the Trust’s
Agreement and Declaration of Trust and By-Laws; the Fund’s prospectus, statement
of additional information and undertakings; and such other limitations, policies
and procedures as the Trustees may impose from time to time in writing to the
Adviser. In providing such services, the Adviser shall at all times adhere
to
the provisions and restrictions contained in the federal securities laws,
applicable state securities laws, the Internal Revenue Code, the Uniform
Commercial Code and other applicable law.
Without
limiting the generality of the foregoing, the Adviser shall: (i) furnish the
Fund with advice and recommendations with respect to the investment of the
Fund’s assets and the purchase and sale of portfolio securities for the Fund,
including the taking of such steps as may be necessary to implement such advice
and recommendations (i.e.,
placing the orders); (ii) manage and oversee the investments of the Fund,
subject to the ultimate supervision and direction of the Trust’s Board of
Trustees (the “Board of Trustees”); (iii) vote proxies for the Fund, file
ownership reports under Section 13 of the Securities Exchange Act of 1934 for
the Fund, and take other actions on behalf of the Fund; (iv) maintain the books
and records required to be maintained by the Fund except to the extent
arrangements have been made for such books and records to be maintained by
the
administrator or another agent of the Fund; (v) furnish reports, statements
and
other data on securities, economic conditions and other matters related to
the
investment of the Fund’s assets which the Fund’s administrator or distributor or
the officers of the Trust may reasonably request; and (vi) render to the Board
of Trustees such periodic and special reports with respect to the Fund’s
investment activities as the Board may reasonably request, including at least
one in-person appearance annually before the Board of Trustees.
(b)
BROKERAGE.
The Adviser shall be responsible for decisions to buy and sell securities for
the Fund, for broker-dealer selection, and for negotiation of brokerage
commission rates, provided that the Adviser shall not direct orders to an
affiliated person of the Adviser without general prior authorization to use
such
affiliated broker or dealer by the Board of Trustees. The Adviser’s primary
consideration in effecting a securities transaction will be execution at the
most favorable price. In selecting a broker-dealer to execute each particular
transaction, the Adviser may take the following into consideration: 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 investment performance
of the Fund on a continuing basis. 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 of Trustees may determine and consistent with
Section 28(e) of the Securities Exchange Act of 1934, as amended, 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 its having caused
the
Fund to pay a broker or dealer that provides (directly or indirectly) brokerage
or research services to the Adviser 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 Adviser
determines in good faith that such amount of 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
Adviser’s overall responsibilities with respect to the Trust. Subject to the
same policies and legal provisions, the Adviser is further authorized to
allocate the orders placed by it on behalf of the Fund to such brokers or
dealers who also provide research or statistical material, or other services,
to
the Trust, the Adviser, or any affiliate of either. Such allocation shall be
in
such amounts and proportions as the Adviser shall determine, and the Adviser
shall report on such allocations regularly to the Trust, indicating the
broker-dealers to whom such allocations have been made and the basis therefor.
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 of other clients, the Adviser, to the
extent permitted by applicable laws and regulations, may aggregate the
securities to be so purchased or sold in order to obtain the most favorable
price or lower brokerage commissions and the most efficient execution. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Adviser in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to the Fund and to such other clients.
3.
REPRESENTATIONS OF THE ADVISER.
(a)
The Adviser shall use its best judgment and efforts in rendering the advice
and
services to the Fund as contemplated by this Agreement.
(b)
The Adviser shall maintain all licenses and registrations necessary to perform
its duties hereunder in good order.
(c)
The Adviser shall conduct its operations at all times in conformance with the
Advisers Act, the Investment Company Act, and any other applicable state and/or
self-regulatory organization regulations.
4.
INDEPENDENT CONTRACTOR.
The Adviser shall, for all purposes herein, be deemed to be an independent
contractor, and shall, unless otherwise expressly provided and authorized to
do
so, have no authority to act for or represent the Trust in any way, or in any
way be deemed an agent for the Trust. It is expressly understood and agreed
that
the services to be rendered by the Adviser to the Fund under the provisions
of
this Agreement are not to be deemed exclusive, and the Adviser shall be free
to
render similar or different services to others so long as its ability to render
the services provided for in this Agreement shall not be impaired thereby.
5.
ADVISER’S PERSONNEL.
The Adviser shall, at its own expense, maintain such staff and employ or retain
such personnel and consult with such other persons as it shall from time to
time
determine to be necessary to the performance of its obligations under this
Agreement. Without limiting the generality of the foregoing, the staff and
personnel of the Adviser shall be deemed to include persons employed or retained
by the Adviser to furnish statistical information, research, and other factual
information, advice regarding economic factors and trends, information with
respect to technical and scientific developments, and such other information,
advice and assistance as the Adviser or the Board of Trustees may desire and
reasonably request and any compliance staff and personnel required by the
Adviser.
6.
EXPENSES.
(a)
With respect to the operation of the Fund, the Adviser shall be responsible
for
(i) the Fund’s organizational expenses, (ii) providing the personnel, office
space and equipment reasonably necessary for the operation of the Fund, (iii)
the expenses of printing and distributing extra copies of the Fund’s prospectus,
statement of additional information, and sales and advertising materials (but
not the legal, auditing or accounting fees attendant thereto) to prospective
investors (but not to existing shareholders) to the extent such expenses are
not
covered by any applicable plan adopted pursuant to Rule 12b-1 under the
Investment Company Act, (iv) the costs of any special Board of Trustees meetings
or shareholder meetings convened for the primary benefit of the Adviser, and
(v)
any costs of liquidating or reorganizing the Fund (unless such cost is otherwise
allocated by the Board of Trustees). If the Adviser has agreed to limit the
operating expenses of the Fund, the Adviser shall also be responsible on a
monthly basis for any operating expenses that exceed the agreed upon expense
limit.
(b)
The Fund is responsible for and have assumed the obligation for payment of
all
of its expenses, other than as stated in Subparagraph 6(a) above, including
but
not limited to: fees and expenses incurred in connection with the issuance,
registration and transfer of its shares; brokerage and commission expenses;
all
expenses of transfer, receipt, safekeeping, servicing and accounting for the
cash, securities and other property of the Trust for the benefit of the Fund
including all fees and expenses of its custodian, shareholder services agent
and
accounting services agent; interest charges on any borrowings; costs and
expenses of pricing and calculating its daily net asset value and of maintaining
its books of account required under the Investment Company Act; taxes, if any;
a
pro rata portion of expenditures in connection with meetings of the Fund’s
shareholders and the Board of Trustees that are properly payable by the Fund;
salaries and expenses of officers of the Trust, including without limitation
the
Trust’s Chief Compliance Officer, and fees and expenses of members of the Board
of Trustees or members of any advisory board or committee who are not members
of, affiliated with or interested persons of the Adviser; insurance premiums
on
property or personnel of the Fund which inure to its benefit, including
liability and fidelity bond insurance; the cost of preparing and printing
reports, proxy statements, prospectuses and statements of additional information
of the Fund or other communications for distribution to existing shareholders;
legal, auditing and accounting fees; all or any portion of trade association
dues or educational program expenses determined appropriate by the Board of
Trustees; fees and expenses (including legal fees) of registering and
maintaining registration of its shares for sale under federal and applicable
state and foreign securities laws; all expenses of maintaining and servicing
shareholder accounts, including all charges for transfer, shareholder
recordkeeping, dividend disbursing, redemption, and other agents for the benefit
of the Fund, if any; and all other charges and costs of its operation plus
any
extraordinary and non-recurring expenses, except as herein otherwise prescribed.
(c)
The Adviser may voluntarily absorb certain Fund expenses or waive the Adviser’s
own advisory fee.
(d)
To the extent the Adviser incurs any costs by assuming expenses which are an
obligation of the Fund as set forth herein, the Fund shall promptly reimburse
the Adviser for such costs and expenses, except to the extent the Adviser has
otherwise agreed to bear such expenses. To the extent the services for which
the
Fund is obligated to pay are performed by the Adviser, the Adviser shall be
entitled to recover from such Fund to the extent of the Adviser’s actual costs
for providing such services. In determining the Adviser’s actual costs, the
Adviser may take into account an allocated portion of the salaries and overhead
of personnel performing such services.
(e)
The Adviser may not pay fees in addition to any Fund distribution or servicing
fees to financial intermediaries, including without limitation banks,
broker-dealers, financial advisers, or pension administrators, for
sub-administration, sub-transfer agency or any other shareholder servicing
or
distribution services associated with shareholders whose shares are held in
omnibus or other group accounts, except with the prior authorization of the
Board of Trustees. Where such arrangements are authorized by the Board of
Trustees, the Adviser shall report regularly to the Trust on the amounts paid
and the relevant financial institutions.
7.
INVESTMENT ADVISORY AND MANAGEMENT FEE.
(a)
The Fund shall pay to the Adviser, and the Adviser agrees to accept, as full
compensation for all investment management and advisory services furnished
or
provided to such Fund pursuant to this Agreement, an annual management fee
at
the rate set forth in Schedule A to this Agreement.
(b)
The management fee shall be accrued daily by the Fund and paid to the Adviser
on
the first business day of the succeeding month.
(c)
The initial fee under this Agreement shall be payable on the first business
day
of the first month following the effective date of this Agreement and shall
be
prorated as set forth below. If this Agreement is terminated prior to the end
of
any month, the fee to the Adviser shall be prorated for the portion of any
month
in which this Agreement is in effect which is not a complete month according
to
the proportion which the number of calendar days in the month during which
the
Agreement is in effect bears to the number of calendar days in the month, and
shall be payable within ten (10) days after the date of termination.
(d)
The fee payable to the Adviser under this Agreement will be reduced to the
extent of any receivable owed by the Adviser to the Fund and as required under
any expense limitation applicable to the Fund.
(e)
The Adviser voluntarily may reduce any portion of the compensation or
reimbursement of expenses due to it pursuant to this Agreement and may agree
to
make payments to limit the expenses which are the responsibility of the Fund
under this Agreement. Any such reduction or payment shall be applicable only
to
such specific reduction or payment and shall not constitute an agreement to
reduce any future compensation or reimbursement due to the Adviser hereunder
or
to continue future payments. Any such reduction will be agreed to prior to
accrual of the related expense or fee and will be estimated daily and reconciled
and paid on a monthly basis.
(f)
Any such reductions made by the Adviser in its fees or payment of expenses
which
are the Fund’s obligation are subject to reimbursement by the Fund to the
Adviser, if so requested by the Adviser, in subsequent fiscal years if the
aggregate amount actually paid by the Fund toward the operating expenses for
such fiscal year (taking into account the reimbursement) does not exceed the
applicable limitation on Fund expenses. Under the expense limitation agreement,
the Adviser may recoup reimbursements made in any fiscal year of the Fund over
the following three fiscal years. Any such reimbursement is also contingent
upon
Board of Trustees review and approval at the time the reimbursement is made.
Such reimbursement may not be paid prior to the Fund’s payment of current
ordinary operating expenses.
(g)
The Adviser may agree not to require payment of any portion of the compensation
or reimbursement of expenses otherwise due to it pursuant to this Agreement.
Any
such agreement shall be applicable only with respect to the specific items
covered thereby and shall not constitute an agreement not to require payment
of
any future compensation or reimbursement due to the Adviser hereunder.
8.
NO SHORTING; NO BORROWING.
The Adviser agrees that neither it nor any of its officers or employees shall
take any short position in the shares of the Fund. This prohibition shall not
prevent the purchase of such shares by any of the officers or employees of
the
Adviser or any trust, pension, profit-sharing or other benefit plan for such
persons or affiliates thereof, at a price not less than the net asset value
thereof at the time of purchase, as allowed pursuant to rules promulgated under
the Investment Company Act. The Adviser agrees that neither it nor any of its
officers or employees shall borrow from the Fund or pledge or use the Fund’s
assets in connection with any borrowing not directly for the Fund’s benefit. For
this purpose, failure to pay any amount due and payable to the Fund for a period
of more than thirty (30) days’ shall constitute a borrowing.
9.
CONFLICTS WITH TRUST’S GOVERNING DOCUMENTS AND APPLICABLE
LAWS.
Nothing herein contained shall be deemed to require the Trust or the Fund to
take any action contrary to the Trust’s Agreement and Declaration of Trust,
By-Laws, or any applicable statute or regulation, or to relieve or deprive
the
Board of Trustees of its responsibility for and control of the conduct of the
affairs of the Trust and Fund. In this connection, the Adviser acknowledges
that
the Trustees retain ultimate plenary authority over the Fund and may take any
and all actions necessary and reasonable to protect the interests of
shareholders.
10.
REPORTS AND ACCESS.
The Adviser agrees to supply such information to the Fund’s administrator and to
permit such compliance inspections by the Fund’s administrator as shall be
reasonably necessary to permit the administrator to satisfy its obligations
and
respond to the reasonable requests of the Trustees.
11.
ADVISER’S LIABILITIES AND INDEMNIFICATION.
(a)
The Adviser shall have responsibility for the accuracy and completeness (and
liability for the lack thereof) of the statements in the Fund’s offering
materials (including the prospectus, the statement of additional information,
advertising and sales materials), except for information supplied by the
administrator or the Trust or another third party for inclusion therein.
(b)
The Adviser shall be liable to the Fund for any loss (including brokerage
charges) incurred by the Fund as a result of any improper investment made by
the
Adviser.
(c)
In the absence of willful misfeasance, bad faith, negligence, or reckless
disregard of the obligations or duties hereunder on the part of the Adviser,
the
Adviser shall not be subject to liability to the Trust or the Fund or to any
shareholder of the Fund 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 by the Fund. Notwithstanding
the
foregoing, federal securities laws and certain state laws impose liabilities
under certain circumstances on persons who have acted in good faith, and
therefore nothing herein shall in any way constitute a waiver or limitation
of
any rights which the Trust, the Fund or any shareholder of the Fund may have
under any federal securities law or state law.
(d)
Each party to this Agreement shall indemnify and hold harmless the other party
and the shareholders, directors, officers and employees of the other party
(any
such person, an “Indemnified Party”) against any loss, liability, claim, damage
or expense (including the reasonable cost of investigating and defending any
alleged loss, liability, claim, damage or expenses and reasonable counsel fees
incurred in connection therewith) arising out of the Indemnified Party’s
performance or non-performance of any duties under this Agreement provided,
however, that nothing herein shall be deemed to protect any Indemnified Party
against any liability to which such Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith or negligence in the performance
of
duties hereunder or by reason of reckless disregard of obligations and duties
under this Agreement.
(e)
No provision of this Agreement shall be construed to protect any Trustee or
officer of the Trust, or officer of the Adviser, from liability in violation
of
Sections 17(h) and (i) of the Investment Company Act.
12.
NON-EXCLUSIVITY; TRADING FOR ADVISER’S OWN ACCOUNT.
The Trust’s employment of the Adviser is not an exclusive arrangement. The Trust
may from time to time employ other individuals or entities to furnish it with
the services provided for herein. Likewise, the Adviser may act as investment
adviser for any other person, and shall not in any way be limited or restricted
from buying, selling or trading any securities for its or their own accounts
or
the accounts of others for whom it or they may be acting, provided, however,
that the Adviser expressly represents that it will undertake no activities
which
will adversely affect the performance of its obligations to the Fund under
this
Agreement; and provided further that the Adviser will adhere to a code of ethics
governing employee trading and trading for proprietary accounts that conforms
to
the requirements of the Investment Company Act and the Advisers Act and has
been
approved by the Board of Trustees.
13.
TERM.
(a)
This Agreement shall become effective with respect to the Fund at the time
the
Fund commences operations pursuant to an effective amendment to the Trust’s
Registration Statement under the Securities Act of 1933, as amended, to August
31, 2008, unless sooner terminated as hereinafter provided. This Agreement
shall
continue in effect thereafter for additional periods not exceeding one (l)
year
so long as such continuation is approved for the Fund at least annually by
(i)
the Board of Trustees or by the vote of a majority of the outstanding voting
securities of such Fund and (ii) the vote of a majority of the Trustees of
the
Trust who are not parties to this Agreement nor interested persons thereof,
cast
in person at a meeting called for the purpose of voting on such approval. The
terms “majority of the outstanding voting securities” and “interested persons”
shall have the meanings as set forth in the Investment Company Act.
(b)
The Fund may use the name “Geneva Advisors All Cap Growth Fund” any name derived
from or using the name “Geneva” only for so long as this Agreement or any
extension, renewal or amendment hereof remains in effect. Within sixty (60)
days
from such time as this Agreement shall no longer be in effect, the Fund shall
cease to use such a name or any other name connected with the Adviser.
14.
TERMINATION; NO ASSIGNMENT.
(a)
This Agreement may be terminated by the Trust on behalf of the Fund at any
time
without payment of any penalty, by the Board of Trustees or by vote of a
majority of the outstanding voting securities of the Fund, upon sixty (60)
days’
written notice to the Adviser, and by the Adviser upon sixty (60) days written
notice to such Fund. In the event of a termination, the Adviser shall cooperate
in the orderly transfer of the Fund’s affairs and, at the request of the Board
of Trustees, transfer any and all books and records of such Fund maintained
by
the Adviser on behalf of the Fund.
(b)
This Agreement shall terminate automatically in the event of any transfer or
assignment thereof, as defined in the Investment Company Act.
15.
NONPUBLIC
PERSONAL INFORMATION.
Notwithstanding
any provision herein to the contrary, the Adviser hereto agrees on behalf of
itself and its directors, trustees, shareholders, officers, and employees (1)
to
treat confidentially and as proprietary information of the Trust (a) all records
and other information relative to the Fund’s prior, present, or potential
shareholders (and clients of said shareholders) and (b) any Nonpublic Personal
Information, as defined under Section 248.3(t) of Regulation S-P (“Regulation
S-P”), promulgated under the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (the “G-L-B Act”), and (2)
except after prior notification to and approval in writing by the Trust, not
to
use such records and information for any purpose other than the performance
of
its responsibilities and duties hereunder, or as otherwise permitted by
Regulation S-P or the G-L-B Act, and if in compliance therewith, the privacy
policies adopted by the Trust and communicated in writing to the Adviser. Such
written approval shall not be unreasonably withheld by the Trust and may not
be
withheld where the Adviser may be exposed to civil or criminal contempt or
other
proceedings for failure to comply after being requested to divulge such
information by duly constituted authorities.
16.
ANTI-MONEY LAUNDERING COMPLIANCE. The
Adviser acknowledges that, in compliance with the Bank Secrecy Act, as amended,
the USA PATRIOT Act, and any implementing regulations thereunder (together,
“AML
Laws”), the Trust has adopted an Anti-Money Laundering Policy. The Adviser
agrees to comply with the Trust’s Anti-Money Laundering Policy and the AML Laws,
as the same may apply to the Adviser, now and in the future. The Adviser further
agrees to provide to the Trust and/or the Administrator such reports,
certifications and contractual assurances as may be reasonably requested by
the
Trust. The Trust may disclose information regarding the Adviser to governmental
and/or regulatory or self-regulatory authorities to the extent required by
applicable law or regulation and may file reports with such authorities as
may
be required by applicable law or regulation.
17.
CERTIFICATIONS; DISCLOSURE CONTROLS AND PROCEDURES. The
Adviser acknowledges that, in compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and the
implementing regulations promulgated thereunder, the Trust and the Fund is
required to make certain certifications and have adopted disclosure controls
and
procedures. To the extent reasonably requested by the Trust, the Adviser agrees
to use its best efforts to assist the Trust and the Fund in complying with
the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and implementing the Trust’s disclosure controls and
procedures. The Adviser agrees to inform the Trust of any material development
related to the Fund that the Adviser reasonably believes is relevant to the
Fund’s certification obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
18.
SEVERABILITY.
If any provision of this Agreement shall be held or made invalid by a court
decision, statute or rule, or shall be otherwise rendered invalid, the remainder
of this Agreement shall not be affected thereby.
19.
CAPTIONS.
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.
20.
GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with, the
laws
of the State of Wisconsin without giving effect to the conflict of laws
principles thereof; provided that nothing herein shall be construed to preempt,
or to be inconsistent with, any federal law, regulation or rule, including
the
Investment Company Act and the Advisers Act and any rules and regulations
promulgated thereunder.
IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their
duly
authorized officers, all on the day and year first above written.
|
TRUST
FOR PROFESSSIONAL MANAGERS
on behalf of the
Geneva
Advisors All Cap Growth Fund
|
GENEVA
INVESTMENT MANAGEMENT OF CHICAGO LLC
|
|
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
By: /s/
▇▇▇▇ ▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
Name: ▇▇▇▇
▇▇▇▇▇
|
|
Title:
President
|
Title: Principal
|
SCHEDULE
A
| Series or Fund of Trust for Professional Managers | Annual Fee rate | |
| Geneva Advisors All Cap Growth Fund | 1.25% of average net assets |