Exhibit(d)(1)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of this 12th day of July, 2005 between Arrivato
Advisors, LLC, a limited liability company organized under the laws of the State
of Delaware(the "Adviser"), and Arrivato Funds Trust, a business trust organized
under the laws of the State of Delaware (the "Trust").
WHEREAS, the Adviser is principally engaged in the business of rendering
investment management services and is registered as an investment adviser under
the Investment Advisers Act of 1940 (the "Advisers Act"); and
WHEREAS, the Trust proposes to engage in the business of an investment
company and is registered as such under the Investment Company Act of 1940 (the
"1940 Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest in
separate series with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust intends initially to offer shares representing
interests in each of the separate series listed on Schedule A attached hereto
(collectively, the "Initial Funds"); and
WHEREAS, the Trust desires to appoint the Adviser to serve as the
investment adviser with respect to each of the Initial Funds; and
WHEREAS, the Trust may, from time to time, offer shares representing
interests in one or more additional series (each, an "Additional Fund" and
collectively, the "Additional Funds"); and
WHEREAS, the Trust may desire to appoint the Adviser as the investment
adviser with respect to one or more of the "Additional Funds" (each such
Additional Fund and Initial Fund being referred to herein individually as a
"Fund" and collectively as the "Funds");
NOW THEREFORE, the parties hereto hereby agree as follows:
1. APPOINTMENT OF ADVISER
The Trust hereby appoints the Adviser to act as investment adviser for the
Initial Funds for the period and on terms set forth herein. The Adviser accepts
such appointment and agrees to render such services for the compensation set
forth herein. In the event that the Trust desires to retain the Adviser to
render investment advisory services hereunder with respect to an Additional
Fund, and the Adviser is willing to render such services,
Schedule A shall be amended in accordance with Section 8, paragraph b herein,
whereupon such Additional Fund shall become a Fund hereunder.
2. DUTIES OF THE ADVISER
The Adviser, at its own expense shall: (i) furnish continuously an
investment program for each Fund; (ii) manage the investment and reinvestment of
Fund assets; (iii) determine what investments shall be purchased, held, sold or
exchanged for each Fund and what portion, if any, of the assets of each Fund
shall be held uninvested; (iv) make changes on behalf of the Trust in the
investments for each Fund; (v) provide the Trust with records concerning the
Adviser's activities that the Trust is required to maintain; and (vi) render
reports to the Trust's officers and Board of Trustees concerning the Adviser's
discharge of the foregoing responsibilities. In addition, the Adviser will
arrange for other necessary services, including custodial, transfer agency and
administration. The Adviser shall furnish to the Trust all office facilities,
equipment, services and executive and administrative personnel necessary for
managing the investment program of the Trust for each Fund. The Adviser may at
its expense employ others to provide all or any part of such facilities and
personnel.
In carrying out its obligations the Investment Manager shall: (a) supervise and
manage all aspects of the Funds' operations; (b) provide the Funds or obtain for
each, and thereafter supervise, such executive, administrative, clerical and
shareholder servicing services as are deemed advisable by the Trust's Board of
Trustees; (c) arrange, but not pay for, the periodic updating of prospectuses
and supplements thereto, proxy material, tax returns, reports to the Funds'
shareholders and reports to and filings with the Securities and Exchange
Commission and state Blue Sky authorities; (d) provide the Funds with, or obtain
for each, adequate office space and all necessary office equipment and services,
including telephone service, heat, utilities, stationery supplies and similar
items for the Funds' principal office; (e) provide the Board of Trustees of the
Trust on a regular basis with financial reports and analyses on the Funds'
operations and the operations of comparable investment companies; (f) obtain and
evaluate pertinent information about significant developments and economic,
statistical and financial data, domestic, foreign or otherwise, whether
affecting the economy generally or the Funds, and whether concerning the
individual issuers whose securities are included in the Funds or the activities
in which they engage, or with respect to securities which the Investment Manager
considers desirable for inclusion in the Funds; (g) determine what issuers and
securities shall be represented in the Funds' respective portfolios and
regularly report them to the Board of Trustees of the Trust; (h) formulate and
implement continuing programs for the purchases and sales of the securities of
such issuers and regularly report thereon to the Board of Trustees of the Trust;
and (i) take, on behalf of the Funds, all actions which appear necessary to
carry into effect such purchase and sale programs and supervisory functions as
aforesaid, including the placing of orders for the purchase and sale of
portfolio securities.
The Adviser shall discharge the foregoing responsibilities subject to the
control of the Board of Trustees of the Trust and in compliance with such
policies as the Trustees may from time to time establish, each Fund's investment
objective and policies, as set forth in the then current prospectus and
statement of additional information for such Fund contained in the Trust's
Registration Statement on Form N-1A, as such prospectus and statement of
additional information is amended or supplemented from time to time, and
applicable laws and regulations.
3. CERTAIN RECORDS AND REPORTS
Any records required to be maintained and preserved pursuant to the
provisions of Rule 31a-1 and Rule 31a-2 under the 1940 Act that are prepared or
maintained by the Adviser (or any sub-adviser) on behalf of the Trust are the
property of the Trust and will be surrendered promptly to the Trust at its
request (the "Records"). The Adviser agrees to preserve the Records for the
periods prescribed in Rule 31a-2 under the 1940 Act. The Trust and the Adviser
agree to furnish to each other, if applicable, current prospectuses, proxy
statements, reports to shareholders, certified copies of their financial
statements, and such other information with regard to their affairs as each may
reasonably request.
4. ADVISORY FEES
For the services to be provided by the Adviser hereunder with respect to
each Fund, the Trust shall pay to the Adviser a fee at the rate set forth on
Schedule A attached hereto. The Adviser agrees to pay all expenses incurred by
the Trust except for interest, taxes, brokerage expenses and other expenses
connected with the execution of portfolio transactions, extraordinary expenses,
and distribution fees and expenses paid by the Trust under any distribution plan
adopted pursuant to rule 12b-1 under the 1940 Act. Schedule A shall be amended
from time to time to reflect the addition and/or termination of any Fund as a
Fund hereunder and to reflect any change in the advisory fees payable with
respect to any Fund duly approved in accordance with Section 8, paragraph b
hereunder. All fees payable hereunder shall be accrued daily and paid as soon as
practical after the last day of each month.
In any case of commencement or termination of this Agreement with respect
to any Fund during any calendar quarter, the fee with respect to such Fund for
that quarter shall be reduced proportionately based upon the number of calendar
days during which it is in effect, and the fee shall be computed upon the
average daily net assets of such Fund for the days during which it is in effect.
5. PORTFOLIO TRANSACTIONS
In connection with the management of the investment and reinvestment of
Fund assets pursuant to this Agreement, the Adviser, acting by its own officers,
directors or employees, is authorized to select the brokers or dealers
(including brokers and dealers that are affiliated with the Adviser or the
Trust's principal underwriter) that will execute
purchase and sale transactions for the Trust. In executing portfolio
transactions and selecting brokers or dealers, if any, the Adviser will use its
best efforts to seek on behalf of a Fund the best overall terms available, as
described from time to time, in the Trust's Registration Statement. In assessing
the best overall terms available for any transaction, the Adviser shall consider
all factors it deems relevant, including the breadth of the market in and the
price of the security, the financial condition and execution capability of the
broker or dealer, and the reasonableness of the commission, if any (for the
specific transaction and on a continuing basis). In evaluating the best overall
terms available, and in selecting the broker or dealer, if any, to execute a
particular transaction, the Adviser may also consider the brokerage and research
services (as those terms are defined in Section 28(e) of the ▇▇▇▇ ▇▇▇) provided
to any fund of the Trust. The Adviser may pay to a broker or dealer who provides
such brokerage and research services a commission for executing a portfolio
transaction which is in excess of the amount of commission another broker or
dealer would have charged for effecting the transaction if, but only if, the
Adviser determines in good faith that such commission was reasonable in relation
to the value of the brokerage and research services provided. The Trust
acknowledges that any such research may be useful to the Adviser in connection
with other accounts managed by it. Brokerage transactions for the Trust may be
effected through affiliates of the Adviser if approved by the Board of Trustees,
subject to applicable rules and regulations. The Adviser will promptly
communicate to the officers and the Trustees of the Trust such information
relating to Fund transactions as they may reasonably request.
6. LIABILITY OF ADVISER
Neither the Adviser nor its officers, directors, employees, agents,
affiliated persons or controlling persons or assigns shall be liable for any
error of judgment or mistake of law or for any loss suffered by the Trust or its
shareholders in connection with the matters to which this Agreement relates;
provided that no provision of this Agreement shall be deemed to protect the
Adviser against any liability to the Trust or its shareholders resulting from
any willful misfeasance, bad faith or gross negligence in the performance of its
duties or obligations hereunder, the reckless disregard of its duties or
obligations hereunder, or breach of its fiduciary duty to the Trust, any Fund or
its shareholders.
7. FORCE MAJEURE
Notwithstanding any other provision of this Agreement, Adviser shall not
be liable for any loss suffered by the Trust or its shareholders caused directly
or indirectly by circumstances beyond Adviser's reasonable control including,
without limitation, government restrictions, exchange or market rulings,
suspensions of trading, acts of civil or military authority, national
emergencies, labor difficulties, fires, earthquakes, floods or other
catastrophes, acts of God, wars, riots or failures of communication or power
supply.
8. DURATION, TERMINATION AND AMENDMENT
a. Duration. This Agreement shall become effective with respect to each
Initial Fund on the date hereof and, with respect to any Additional Fund, on the
date Schedule A is amended to reflect such Additional Fund in accordance with
paragraph b below. Unless terminated in accordance with this Section 8, the
Agreement shall remain in full force and effect for two years from the date
hereof with respect to each Initial Fund and, with respect to each Additional
Fund, for two years from the date on which such Fund becomes a Fund hereunder.
Subsequent to such initial periods of effectiveness, this Agreement shall
continue in full force and effect for periods of one year thereafter with
respect to each Fund so long as such continuance with respect to such Fund is
specifically approved at least annually (i) by either the Board of Trustees of
the Trust or by vote of a "majority of the outstanding voting securities" (as
defined in the ▇▇▇▇ ▇▇▇) of such Fund, and (ii), in either event, by the vote of
a majority of the Trustees of the Trust who are not parties to this Agreement or
"interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of any such party, cast in
person at a meeting called for the purpose of voting on such approval. If the
shareholders of any Fund fail to approve the Agreement as provided herein, the
Adviser may continue to serve hereunder in the manner and to the extent
permitted by the 1940 Act and rules and regulations thereunder. The foregoing
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the 1940 Act and
the rules and regulations thereunder.
b. Amendment. Any amendment to this Agreement shall become effective with
respect to a Fund upon approval of the Adviser, the Board of Trustees of the
Trust, including a majority of the Trustees of the Trust who are not parties to
this Agreement or "interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of any such
party, cast in person at a meeting called for the purpose of voting such
approval and, if required under the 1940 Act, a majority of the outstanding
voting securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund.
c. Approval, Amendment or Termination by a Fund. Any approval, amendment
or termination of this Agreement with respect to a Fund will not require the
approval of any other Fund or the approval of a majority of the outstanding
voting securities of the Trust, unless such approval is required by applicable
law.
d. Automatic Termination. This Agreement shall automatically and
immediately terminate in the event of its "assignment" (as defined in the 1940
Act).
e. Termination. This Agreement may be terminated with respect to any Fund
at any time, without payment of any penalty, by vote of the Board of Trustees of
the Trust or by vote of a majority of the outstanding voting securities (as
defined in the ▇▇▇▇ ▇▇▇) of that Fund, or by the Adviser, in each case on not
less than 30 days' nor more than 60 days'
prior written notice to the other party; provided, that a shorter notice period
shall be permitted for a Fund in the event its shares are no longer listed on a
national securities exchange.
9. SERVICES NOT EXCLUSIVE
The services of the Adviser to the Trust hereunder are not to be deemed
exclusive, and the Adviser shall be free to render similar services to others so
long as its services hereunder are not impaired thereby. The Adviser shall be
deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent the Trust in
any way or otherwise be deemed an agent of the Trust.
10. MISCELLANEOUS
a. Notice. Any notice under this Agreement shall be in writing, addressed
and delivered or mailed, postage prepaid, to the other party at such address as
such other party may designate in writing for the receipt of such notices.
b. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder shall not
be thereby affected.
c. Applicable Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware and the applicable provisions
of the 1940 Act. To the extent that the applicable laws of the State of
Delaware, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
d. Execution by Counterpart. This Agreement may be executed in any number
of counterparts, all of which together shall constitute one agreement.
e. Survival After Termination. The rights and obligations set forth in
Paragraphs 5 and 7 shall survive the termination of this Agreement.
f. Permissible Interests. Trustees, officers, agents and shareholders of
the Trust are or may be interested in the Adviser (or any successor thereof) as
directors, partners, officers, agents, shareholders or otherwise; directors,
partners, officers, agents and shareholders of the Adviser are or may be
interested in the Trust as Trustees, officers, agents, shareholders or
otherwise; and the Adviser (or any successor thereof) is or may be interested in
the Trust as a shareholder or otherwise.
11. LICENSE AGREEMENT. The Trust shall have the non-exclusive right to use the
name "Arrivato" to designate itself and any current or future series of shares
only so long as Arrivato Advisors, LLC serves as investment manager or adviser
to the Trust with respect to such series of shares. In the event that the
Investment Advisor ceases to act as
the investment adviser to the Funds, the Trust shall cease using the name
"Arrivato" and shall not use the methodology contained in the License Agreement
between Arrivato Advisors, LLC and Dow ▇▇▇▇▇ Indexes, unless Dow ▇▇▇▇▇ Indexes
shall grant the Funds or a successor a similar license for the Dow ▇▇▇▇▇ Target
Date Indexes, upon the Investment Adviser's written request.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
as of the date first set forth above.
ARRIVATO FUNDS TRUST
By
___________________________________
Name: _____________________________
Title: ____________________________
ARRIVATO ADVISORS, LLC
By:
___________________________________
Name: _____________________________
Title: ____________________________
Schedule A
to the
Investment Advisory Agreement dated July 12, 2005
between
Arrivato Funds Trust
and
Arrivato Advisors, LLC
Pursuant to Section 4, the Trust shall pay the Adviser compensation at the
following annual rates:
Fund Annual Fee
---- ----------
Arrivato Dow ▇▇▇▇▇ U.S. 2010 Fund 0.60%
Arrivato Dow ▇▇▇▇▇ U.S. 2015 Fund 0.60%
Arrivato Dow ▇▇▇▇▇ U.S. 2020 Fund 0.60%
Arrivato Dow ▇▇▇▇▇ U.S. 2030 Fund 0.60%
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇ Fund 0.60%