SUB-ADVISORY AGREEMENT BETWEEN 361° CAPITAL, LLC AND [SUB-ADVISOR]
BETWEEN
361°
CAPITAL, LLC
AND
[SUB-ADVISOR]
AGREEMENT made as of the
_____________, 20__, by and between [ADVISOR NAME], a ____________ corporation
with its principal office and place of business at _____________________________
(the “Advisor”) and [SUB-ADVISOR NAME], _______________ corporation with its
principal office and place of business at __________________ (the
“Sub-advisor”).
WHEREAS, Advisor has entered
into an Investment Advisory Agreement dated the ______________, 20___ (“Advisory
Agreement”) with Investment Managers Series Trust, a Delaware statutory trust,
with its principal office and place of business at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (the “Trust”);
WHEREAS, the Trust is
registered under the Investment Company Act of 1940, as amended (the “1940
Act”), as an open-end, management investment company and may issue its shares of
beneficial interest, no par value, in separate series;
WHEREAS, pursuant to the
Advisory Agreement, and subject to the direction and control of the Board of
Trustees of the Trust (the “Board”), the Advisor acts as investment Advisor for
the series of the Trust listed on Appendix A hereto (the “Fund”);
WHEREAS, the Advisory
Agreement permits the Advisor, subject to the supervision of the Board, to
delegate certain of its duties under the Advisory Agreement to other registered
investment Advisors subject to the requirements of the 1940 Act;
WHEREAS, it is intended that
the Trust be a third-party beneficiary under this Agreement; and
WHEREAS, Advisor desires to
retain the Sub-advisor to furnish investment advisory services for the Fund and
Sub-advisor is willing to provide those services on the terms and conditions set
forth in this Agreement;
NOW THEREFORE, for and in
consideration of the mutual covenants and agreements contained herein, the
Advisor and the Sub-advisor hereby agree as follows:
SECTION
1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The
Advisor hereby appoints and employs Sub-advisor, subject to the direction and
control of the Board, to manage the investment and reinvestment of the assets in
the Fund and, without limiting the generality of the foregoing, to provide other
services as specified herein.
The
Sub-advisor accepts this employment and agrees to render its services for the
compensation set forth herein.
(b) In
connection therewith, the Advisor has delivered to the Sub-advisor copies of (i)
the Trust’s [Amended and Restated] Declaration of Trust and Bylaws
(collectively, as amended from time to time, “Charter Documents”), (ii) the
Trust’s current Prospectuses and Statements of Additional Information for the
Fund (collectively, as currently in effect and as amended or supplemented,
the “Registration Statement”) filed with the U.S. Securities and
Exchange Commission (“SEC”) pursuant to the Securities Act of 1933, as amended
(the “Securities Act”), and the 1940 Act, (iii) each plan of
distribution or similar document adopted by the Trust under Rule 12b-1 under the
1940 Act (“Plan”) and each current shareholder service plan or similar document
adopted by the Trust for the Fund (“Service Plan”); and (iv) all procedures
adopted by the Trust with respect to the Fund (e.g., repurchase agreement
procedures), and shall promptly furnish the Sub-advisor with all amendments of
or supplements to the foregoing. The Advisor shall deliver to the
Sub-advisor: (x) a certified copy of the resolution of the Board appointing the
Sub-advisor and authorizing the execution and delivery of this Agreement; (y) a
copy of all proxy statements and related materials relating to the Fund; and (z)
any other documents, materials or information that the Sub-advisor shall
reasonably request to enable it to perform its duties pursuant to this
Agreement.
(c) The
Sub-advisor has delivered to the Advisor and the Trust (i) a copy of its Form
ADV as most recently filed with the SEC; (ii) a copy of its code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act (the “Code”);
and (iii) a copy of its compliance manual pursuant to applicable regulations,
including its proxy voting policies and procedures, which will be included in
the Trust’s registration statement. The Sub-advisor shall promptly
furnish the Advisor and Trust with all amendments of or supplements to the
foregoing at least annually.
SECTION
2. DUTIES OF THE ADVISOR
In order
for the Sub-advisor to perform the services required by this Agreement, the
Advisor (i) shall cause all service providers to the Trust to furnish
information to the Sub-advisor and assist the Sub-advisor as may be required and
(ii) shall ensure that the Sub-advisor has reasonable access to all records and
documents maintained by the Trust, the Advisor or any service provider to the
Trust and (iii) shall deliver to the Sub-advisor all material it provides to the
Board in accordance with the Advisory Agreement.
SECTION
3. DUTIES OF THE SUB-ADVISOR
(a) The
Sub-advisor will make decisions with respect to all purchases and sales of
securities and other investment assets in the Fund to the extent such authority
is delegated by the Advisor. To carry out such decisions, the
Sub-advisor is hereby authorized, as agent and attorney-in-fact for the Trust,
for the account of, at the risk of and in the name of the Trust, to place orders
and issue instructions with respect to those transactions of the
Fund. In all purchases, sales and other transactions in securities
and other investments for the Fund, the Sub-advisor is authorized to exercise
full discretion and act for the Trust in the same manner and with the same force
and effect as the Trust might or could do with respect to such purchases, sales
or other transactions, as well as with respect to all other things necessary or
incidental to the furtherance or conduct of such purchases, sales or other
transactions, including voting of proxies with respect to securities owned by
the Fund, subject to such proxy voting policies as approved by the
Board.
Consistent
with Section 28(e) of the Securities and Exchange Act of 1934, as amended, the
Sub-advisor may allocate brokerage on behalf of the Fund to broker-dealers who
provide brokerage or research services. The Sub-advisor may aggregate
sales and purchase orders of the assets of the Fund with similar orders being
made simultaneously for other accounts advised by the Sub-advisor or its
affiliates. Whenever the Sub-advisor simultaneously places orders to
purchase or sell the same asset on behalf of the Fund and one or more other
accounts advised by the Sub-advisor, the Sub-advisor will allocate the order as
to price and amount among all such accounts in a manner believed to be equitable
over time to each account.
(b) The
Sub-advisor will report to the Board at each meeting thereof as requested by the
Advisor or the Board all material changes in the Fund since the prior report,
and will also keep the Board and the Advisor informed of important developments
affecting the Trust, the Fund and the Sub-advisor, and on its own initiative,
will furnish the Board from time to time with such information as the
Sub-advisor may believe appropriate for this purpose, whether concerning the
individual companies whose securities are included in the Fund’s holdings, the
industries in which they engage, the economic, social or political conditions
prevailing in each country in which the Fund maintains investments, or
otherwise. The Sub-advisor will also furnish the Board and the
Advisor with such statistical and analytical information with respect to
investments of the Fund as the Sub-advisor may believe appropriate or as the
Board reasonably may request. In making purchases and sales of
securities and other investment assets for the Fund, the Sub-advisor will bear
in mind the policies and procedures set from time to time by the Board as well
as the limitations imposed by the Charter Documents and Registration Statement,
the limitations in the 1940 Act, the Securities Act, the Internal Revenue Code
of 1986, as amended, and other applicable laws and the investment objectives,
policies and restrictions of the Fund.
(c) The
Sub-advisor will from time to time employ or associate with such persons as the
Sub-advisor believes to be particularly fitted to assist in the execution of the
Sub-advisor's duties hereunder, the cost of performance of such duties to be
borne and paid by the Sub-advisor. No obligation may be incurred on
the Trust’s or Advisor’s behalf in any such respect.
(d) The
Sub-advisor will report to the Board and the Advisor all material matters
related to the Sub-advisor. On an annual basis, the Sub-advisor shall
report on its compliance with its Code and its compliance policies and
procedures to the Advisor and to the Board and upon the written request of the
Advisor or the Trust, the Sub-advisor shall permit the Advisor and the Trust, or
their respective representatives to examine the reports required to be made to
the Sub-advisor under the Code and its compliance policies and
procedures. The Sub-advisor will notify the Advisor and the Trust in
writing of any change of control of the Sub-advisor at least 90 days prior to
any such changes and any changes in the key personnel who are either the
portfolio manager(s) of the Fund or senior management of the Sub-advisor, (prior
to or promptly after such change).
(e) The
Sub-advisor will maintain records relating to its portfolio transactions and
placing and allocation of brokerage orders as are required to be maintained by
the Trust under the 1940 Act. The Sub-advisor shall prepare and
maintain, or cause to be prepared and maintained, in such form, for such periods
and in such locations as may be required by applicable law, all documents and
records relating to the services provided by the Sub-advisor pursuant to this
Agreement required to be prepared and maintained by the Sub-advisor or the Trust
pursuant to applicable law. To the extent required by law, the books
and records pertaining to the Trust, which are in possession of the Sub-advisor,
shall be the property of the Trust. The Advisor and the Trust, or
their respective representatives, shall have access to such books and records at
all times during the Sub-advisor's normal business hours. Upon the
reasonable request of the Advisor or the Trust, copies of any such books and
records shall be provided promptly by the Sub-advisor to the Advisor and the
Trust, or their respective representatives.
(f) The
Sub-advisor will cooperate with the Fund’s independent public accountants and
shall take reasonable action to make all necessary information available to the
accountants for the performance of the accountants’ duties.
(g) The
Sub-advisor will provide the Fund’s custodian and fund accountant on each
business day with such information relating to all transactions concerning the
Fund’s assets under the Sub-advisor’s control as the custodian and fund
accountant may reasonably require. In accordance with procedures
adopted by the Board, the Sub-advisor is responsible for assisting in the fair
valuation of all Fund assets and will use its reasonable efforts to arrange for
the provision of prices from parties who are not affiliated persons of the
Sub-advisor for each asset for which the Fund’s fund accountant does not obtain
prices in the ordinary course of business.
(h) The
Sub-advisor shall authorize and permit any of its directors, officers and
employees who may be elected as Trustees or officers of the Trust to serve in
the capacities in which they are elected.
(i) The
Sub-advisor shall have no duties or obligations pursuant to this Agreement
(other than the continuation of its preexisting duties and obligations) during
any period in which the Fund invests all (or substantially all) of its
investment assets in a registered, open-end management investment company, or
separate series thereof, in accordance with Section 12(d)(1)(E) under the 1940
Act, pursuant to the instruction of the Advisor and of the Trust’s Board of
Trustees.
(j) The
Sub-advisor shall not consult with any other sub-Advisor of any other series of
the Trust concerning transactions of the Fund or any other series of the Trust
in which (a) the Sub-Advisor of any of its affiliated persons serves as
principal underwriter, or (b) such other sub-Advisor or any of its affiliated
persons serves as principal underwriter.
SECTION
4. COMPENSATION; EXPENSES
(a) In
consideration of the foregoing, the Advisor shall pay the Sub-advisor, with
respect to the Fund, a fee as specified in Appendix B hereto. Such
fees shall be accrued by the Advisor daily and shall be payable monthly in
arrears on the first business day of each calendar month for services performed
hereunder during the prior calendar month. If fees begin to accrue in
the middle of a month or if this Agreement terminates before the end of any
month, all fees for the period from that date to the end of that month or from
the beginning of that month to the date of termination, as the case may be,
shall be prorated according to the proportion that the period bears to the full
month in which the effectiveness or termination occurs. Upon the
termination of this Agreement with respect to the Fund, the Advisor shall pay to
the Sub-advisor such compensation as shall be payable prior to the effective
date of termination.
(b) During
the term of this Agreement, the Sub-advisor will pay all expenses incurred by it
in connection with its activities under this Agreement other than the cost of
securities and other investments (including brokerage commissions and other
transaction charges, if any) purchased for a Fund. The Sub-advisor
shall, at its sole expense, employ or associate itself with such persons as it
reasonably believe to be particularly fitted to assist it in the execution of
its duties under the Agreement. Except as set forth in Appendix B,
the Sub-advisor shall not be responsible for the Trust’s, a Fund’s or the
Advisor’s expenses, including any extraordinary and non-recurring
expenses.
(c) No
fee shall be payable hereunder with respect to the Fund during any period in
which the Fund invests all (or substantially all) of its investment assets in a
registered, open-end, management investment company, or separate series thereof,
in accordance with Section 12(d)(1)(E) under the 1940 Act, pursuant to the
instruction of the Advisor and of the Trust’s Board of Trustees.
SECTION
5. STANDARD OF CARE
(a) The
Advisor shall expect of the Sub-advisor, and the Sub-advisor will give the
Advisor and the Trust the benefit of, the Sub-advisor's best judgment and
efforts in rendering its services hereunder. The Sub-advisor shall
not be liable to the Advisor or the Trust hereunder for any mistake of judgment
or in any event whatsoever, except for lack of good faith, provided that nothing
herein shall be deemed to protect, or purport to protect, the Sub-advisor
against any liability to the Advisor or the Trust to which the Sub-advisor would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of the Sub-advisor's duties hereunder, or by
reason of the Sub-advisor's reckless disregard of its obligations and duties
hereunder.
(b) The
Sub-advisor shall not be liable to the Advisor or the Trust for any action taken
or failure to act in good faith reliance upon: (i) information, instructions or
requests, whether oral or written, with respect to the Fund made to the
Sub-advisor by a duly authorized officer of the Advisor or the Trust; (ii) the
advice of counsel to the Trust; and (iii) any written instruction or
certified copy of any resolution of the Board.
(c) The
Sub-advisor shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties (other than those related to the Sub-advisor’s
employees), fire, mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply.
(d) The
parties hereto acknowledge and agree that the Trust is a third-party beneficiary
as to the covenants, obligations, representations and warranties undertaken by
the Sub-advisor under this Agreement and as to the rights and privileges to
which the Advisor is entitled pursuant to this Agreement, and that the Trust is
entitled to all of the rights and privileges associated with such
third-party-beneficiary status.
SECTION
6. EFFECTIVENESS, DURATION AND TERMINATION
(a) This
Agreement shall become effective with respect to the Fund immediately upon the
later of approval by a majority of the Trust's Trustees who are not parties to
this Agreement or interested persons of any such party (other than as trustees
of the Trust) and, if required by applicable law, by a vote of a majority of the
outstanding voting securities of the Fund.
(b) This
Agreement shall remain in effect with respect to the Fund for a period of two
years from the date of its effectiveness and shall continue in effect for
successive annual periods with respect to the Fund; provided that such
continuance is specifically approved at least annually (i) by the Board or by
the vote of a majority of the outstanding voting securities of the Fund, and, in
either case, (ii) by a majority of the Trust's Trustees who are not parties to
this Agreement or interested persons of any such party (other than as trustees
of the Trust); provided further, however, that if the continuation of this
Agreement is not approved as to the Fund, the Sub-advisor may continue to render
to that Fund the services described herein in the manner and to the extent
permitted by the 1940 Act and the rules and regulations thereunder.
(c) This
Agreement may be terminated with respect to the Fund at any time, without the
payment of any penalty, (i) by the Board, by a vote of a majority of the
outstanding voting securities of the Fund or by the Advisor on 60 days' written
notice to the Sub-advisor or (ii) by the Sub-advisor on 60 days' written notice
to the Trust. This Agreement shall terminate immediately (x) upon its
assignment or (y) upon termination of the Advisory Agreement.
SECTION
7. ACTIVITIES OF THE SUB-ADVISOR
Except to
the extent necessary to perform its obligations hereunder, nothing herein shall
be deemed to limit or restrict the Sub-advisor's right, or the right of any of
the Sub-advisor's directors, officers or employees to engage in any other
business or to devote time and attention to the management or other aspects of
any other business, whether of a similar or dissimilar nature, or to render
services of any kind to any other corporation, trust, firm, individual or
association.
SECTION
8. REPRESENTATIONS OF SUB-ADVISOR.
The
Sub-advisor represents and warrants to the Advisor that:
(a) It
is registered as an investment Advisor under the Investment Advisors Act of
1940, as amended (“Advisors Act”) (and will continue to be so registered for so
long as this Agreement remains in effect) ;
(b) It
is not prohibited by the 1940 Act or the Advisors Act from performing the
services contemplated by this Agreement;
(c) It
has met, and will seek to continue to meet for so long as this Agreement remains
in effect, any other applicable federal or state requirements, or the applicable
requirements of any self-regulatory agency, necessary to be met in order to
perform the services contemplated by this Agreement and
(d) It
will promptly notify the Advisor and the Trust of the occurrence of any event
that would disqualify the Sub-advisor from serving as an investment Advisor of
an investment company pursuant to Section 9(a) of the 1940 Act or
otherwise.
SECTION
9. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The
Trustees of the Trust and the shareholders of the Fund shall not be liable for
any obligations of the Trust or of the Fund under this Agreement, and the
Sub-advisor agrees that, in asserting any rights or claims under this Agreement,
it shall look only to the assets and property of the Trust or the Fund to which
the Sub-advisor's rights or claims relate in settlement of such rights or
claims, and not to the Trustees of the Trust or the shareholders of the
Fund.
SECTION
10. MISCELLANEOUS
(a) No
provisions of this Agreement may be amended or modified in any manner except by
a written agreement properly authorized and executed by both parties hereto and
approved by the Trust in the manner set forth in Section 6(b)
hereof.
(b) Neither
party to this Agreement shall be liable to the other party for consequential
damages under any provision of this Agreement.
(c) This
Agreement shall be governed by, and the provisions of this Agreement shall be
construed and interpreted under and in accordance with, the laws of the State of
Delaware.
(d) This
Agreement constitutes the entire agreement between the parties hereto and
supersedes any prior agreement with respect to the subject matter hereof,
whether oral or written.
(e) This
Agreement may be executed by the parties hereto on any number of counterparts,
and all of the counterparts taken together shall be deemed to constitute one and
the same instrument.
(f) If
any part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid, the remaining portion or portions shall be
considered severable and not be affected, and the rights and obligations of the
parties shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid. This Agreement
shall be construed as if drafted jointly by both the Advisor and Sub-advisor and
no presumptions shall arise favoring any party by virtue of authorship of any
provision of this Agreement.
(g) Section
headings in this Agreement are included for convenience only and are not to be
used to construe or interpret this Agreement.
(h) Notices,
requests, instructions and communications received by the parties at their
respective principal places of business, or at such other address as a party may
have designated in writing, shall be deemed to have been properly
given.
(i) No
affiliated person, employee, agent, director, officer or manager of the
Sub-advisor shall be liable at law or in equity for the Sub-advisor’s
obligations under this Agreement.
(j) The
terms "vote of a majority of the outstanding voting securities", "interested
person", "affiliated person," “control” and "assignment" shall have the meanings
ascribed thereto in the 1940 Act.
(k) Each
of the undersigned warrants and represents that he or she has full power and
authority to sign this Agreement on behalf of the party indicated and that his
or her signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed all as of the day
and year first above written.
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ADVISOR
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Name:
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Title:
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SUB-ADVISOR
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Name:
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Title:
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Appendix
A
Series
of the Trust:
________________________
Fund
Appendix
B
Fees
and Expenses:
________%
of the Fund's average daily net assets