Tortoise MLP & Pipeline
TorrayResolute Small/Mid Cap Growth Fund
Tortoise Select Opportunity Fund
Tortoise VIP MLP & Pipeline Portfolio
Tortoise Select Income Bond Fund
Each, a Series of Managed Portfolio Series
PROXY STATEMENT
c/o U.S. Bancorp Fund Services, LLC
P.O. Box 701
Milwaukee, Wisconsin 53201-0701
SPECIAL MEETING OF SHAREHOLDERS
December 21, 2017
March 17, 2021
Introduction
This proxy statement is being provided to you on behalf of the Board of Trustees (the “Board”) of Managed Portfolio Series (the “Trust”) in connection with the solicitation of proxies to be used at the special joint meeting of shareholders of the Tortoise MLP & Pipeline Fund, the Tortoise Select Opportunity Fund, the Tortoise VIP MLP & Pipeline Portfolio (together, the “TCA Funds”) and the Tortoise Select Income BondTorrayResolute Small/Mid Cap Growth Fund (the “Select Income Bond Fund”) (each, a “Fund” and together, the “Funds”) to be held on December 21, 2017March 17, 2021 (the “Special Meeting”). The purpose of the Special Meeting is to seek shareholder approval of (i) a new investment advisory agreement between the Trust, on behalf of the TCA Funds, and Tortoise Capital Advisors, L.L.C. (“TCA”); (ii) a new investment advisory agreement between the Trust, on behalf of the Select Income Bond Fund, and Tortoise Credit Strategies,Torray LLC (“TCS”Torray”); (iii) any adjournments of the Special Meeting from time to time to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to constitute a quorum or to approve the proposals in (i) or (ii); and (iv)(ii) to transact such other business as may be properly brought before the Special Meeting.
The Tortoise VIP MLP & Pipeline Portfolio is currently offered for sale to separate accounts funding variable annuity and variable life insurance contracts (“Variable Contracts”) issued by participating life insurance companies (“Participating Insurance Companies”). Shares of the Tortoise VIP MLP & Pipeline Portfolio may also be purchased through certain qualified pension and retirement plans. The Participating Insurance Companies hereby solicit and agree to vote at the meeting, to the extent required, the shares of the Tortoise VIP MLP & Pipeline Portfolio that are held in separate accounts in accordance with timely instructions received from owners of the Variable Contracts.
For the limited purpose of this proxy statement, the terms “shareholder,” “you” and “your” refer to Variable Contract owners, as beneficial owners of Fund shares, and to the Participating Insurance Companies as direct owners of Fund shares, as well as any other direct shareholders of the Funds, unless the context otherwise requires.
Shareholders of record at the close of business on the record date, established as October 17, 2017January 25, 2021 (the “Record Date”), are entitled to notice of, and to vote at, the Special Meeting. We anticipate that the Notice of Special Meeting of Shareholders, this proxy statement and the proxy card (collectively, the “proxy materials”) will be mailed to shareholders beginning on or about November 6, 2017.
February 8, 2021.
Important Notice Regarding the Availability of Proxy Materials
for the Shareholder Meeting to be Held on December 21, 2017:
March 17, 2021:
The Notice of Meeting, Proxy Statement and Proxy StatementCard
are available at https://proxyonline.com/docs/tortoiseoef2017.pdfwww.proxy-direct.com/usb-31935
Please read the proxy statement before voting on the proposal. If you need additional copies of this proxy statement or proxy card, please contact ASTComputershare Fund Solutions, LLC (“AST”)Services at 1-866-751-6315.877-632-0901. Representatives are available to answer your call Monday through Friday, 9:00 a.m. to 10:11:00 p.m. Eastern Time and Saturday from 12:00 p.m. to 6 p.m. Eastern Time. Additional copies of this proxy statement will be delivered to you promptly upon request.
For a free copy of eachthe Fund’s annual report for the fiscal year ended December 31, 2020, or the most recent annual or semi-annual report, please contact the Trust at 1-855-822-38631- 844-406-4960 or write to the Funds,Fund, c/o U.S. Bancorp Fund Services, LLC, P.O. Box 701, Milwaukee, Wisconsin 53201-0701.
DESCRIPTION OF THE PROPOSAL
APPROVAL OF NEW INVESTMENT ADVISORY AGREEMENT
Background
The solicitation of shareholder votes on Proposals 1 and 2the Proposal is necessitated because Tortoise Investments, LLC (“Tortoise Investments”), the parent company of TCA and TCS is expecting to undergo a proposed change of control. On October 18, 2017, Tortoise Investments announcedcontrol of Torray. Robert Torray, currently a control person of Torray, intends to sell a portion of his ownership interest in Torray back to the signingCompany (the “Robert Torray Transaction”). Mr. Nicholas Haffenreffer, currently the owner of a definitive agreement fornon-controlling voting interest in Torray, will then acquire from the Company a buy-outportion of Tortoise Investments. Pursuant toMr. Torray’s transferred voting interest, thereby becoming the termsowner of more than 25% of the Membership Interest Purchase Agreement (the “Purchase Agreement”) between a vehicle formed by Lovell Minnick Partners LLC (“Lovell Minnick”) and owned by certain private funds sponsored by Lovell Minnick and a group of institutional co-investors (the “Acquirer”) and certain members of Tortoise Investments, and subject to certain customary closing conditions, the Acquirer will acquire the equityvoting interests in Tortoise Investments currently held by Montage Investments, LLC (a subsidiary of Mariner Holdings, LLC)the Company (the "Nicholas Haffenreffer Transaction", and together with Robert Torray Transaction, the equity interests currently held by certain of the original founders of the firm. Selling members include Messrs. Zachary Hamel, Kenneth Malvey and Terry Matlack, each currently a member of the Investment Committee for the TCA Funds and a Managing Director of TCA, who will sell their remaining interests in Tortoise Investments and retire from the Tortoise Investments family upon closing of the Transaction. Mr. David Schulte, another co-founder of the firm who left the Tortoise Investments family in 2015, will also sell his remaining equity interests in Tortoise Investments as part of the Transaction. As part of the Transaction, ongoing management and employees are expected to meaningfully increase their ownership of Tortoise Investments. Employees will retain a significant equity interest, with many investing additional capital alongside the Acquirer."Transactions"). Following the closingTransactions, Mr. Torray will no longer be a control person of the Transaction, it is expected that the AcquirerTorray and Mr. Haffenreffer will own approximately two-thirds of the equity interests in Tortoise Investments and ongoing Tortoise Investments family management and employees will own approximately one-third of the equity interests in Tortoise Investments. Lovell Minnick is an independent private equity firm founded in 1999, specializing in financial and business services sectors. In addition, as part of the Transaction, management and employees of TCS who directly hold equity interests in TCS Holdings, LLC, a direct parent entity of TCS, may receive equity interests in Tortoise Investments and TCS may become a wholly-owned subsidiarycontrol person of Tortoise Investments.Torray.
TCATorray serves as investment adviser to the TCA Funds. TCS serves as investment adviser to the Select Income Bond Fund. The consummation of the TransactionTransactions will result in a change of control of both TCA and TCS.Torray. Under the Investment Company Act of 1940, as amended (the “1940 Act”), and the terms of the investment advisory agreementsagreement between the Trust, on behalf of the TCA Funds,Fund, and TCA, and betweenTorray, the Trust, on behalfTransactions constitute an agreement of the Select Income Bond Fund, and TCS, the change of control will result in a termination of thecurrent investment advisory agreements.agreement (the “Current Advisory Agreement”), resulting in its termination. Therefore, it is necessary for shareholders of eachthe Fund to approve a new investment advisory agreement for the Fund.Fund (the “New Advisory Agreement”). The Transactions will not close unless and until shareholders of the Fund approve the New Advisory Agreement and shareholders of the Torray Fund, another investment company for which Torray serves as investment adviser, approve a new investment advisory agreement with respect to that fund.
If the Proposal 1 is approved by shareholders of each TCAthe Fund, TCATorray will serve as the investment adviser to the TCA Funds for an initial two-year period from the effective date of the new investment advisory agreement (the “New TCA Agreement”). The change of control of TCA is not expected to have any material impact on TCA’s business or operations or the day-to-day portfolio management of the TCA Funds.
The form of the New TCA Agreement is attached as Exhibit A. The terms of the New TCA Agreement are substantially similar to the terms of the TCA Funds’ current investment advisory agreement (the “Current TCA Agreement”) with respect to services provided by TCA and the advisory fee is identical. The material terms of the New TCA Agreement and the Current TCA Agreement are compared below in “Terms of the Current and New TCA Agreements.”
If Proposal 2 is approved by shareholders of the Select Income Bond Fund, TCS will serve as the investment adviser to the Select Income Bond Fund for an initial two-year period from the effective date of the new investment advisory agreement (the “New TCS Agreement”).New Advisory Agreement. The change of control of TCS willTorray is not expected to have any material impact on TCS’sTorray’s business or operations or the day-to-day portfolio management of the Fund.
Information About the Fund
The formFund is a series of the New TCS AgreementTrust. The Trust is attachedan open-end management investment company organized as Exhibit B. The termsa Delaware statutory trust. Quasar Distributors, LLC (“Quasar”) is the distributor of the New TCS Agreement are substantiallyFund’s shares. Quasar is located at 111 East Kilbourn Avenue, Suite 1250, Milwaukee, Wisconsin 53202. The Fund’s administrator is U.S. Bancorp Fund Services, LLC, located at 615 East Michigan Avenue, Milwaukee, Wisconsin, 53202.
Information About Torray
Torray is an investment adviser registered with the Securities and Exchange Commission (“SEC”) under the Investment Advisers Act of 1940, as amended. As of September 30, 2020, Torray managed approximately $586 million of client assets. Torray is located at 7501 Wisconsin Avenue, Suite 750W, Bethesda, Maryland 20814. Torray provides investment management and advisory services to investment companies, individuals, high net worth individuals, charitable organizations and companies. Torray is currently controlled by Robert Torray.
The following table sets forth the name, position and principal occupation of each current principal officer of Torray, each of whom can be contacted through Torray’s principal office location.
| | | | | |
| Name | Position/Principal Occupation |
| Janet M. Gallagher | Director of Investment Operations |
| Nicholas C. Haffenreffer | Chief Investment Officer |
| Shawn M. Hendon | President |
| Suzanne E. Kellogg | Chief Compliance Officer |
| William M. Lane | Executive Vice President |
| Robert E. Torray | Chairman |
Torray does not serve as investment adviser to any other investment companies with an investment objective similar to the termsFund.
Impact of the currentTransactions on the Fund’s Investment Advisory Agreement
Shareholders of the Fund are being asked to approve the New Advisory Agreement. The consummation of the Transactions will constitute an “assignment” (as defined in the 1940 Act) of the Current Advisory Agreement. As required by the 1940 Act, the Current Advisory Agreement provides for its automatic termination in the event of its assignment. Accordingly, the Current Advisory Agreement will remain in effect until shareholders approve the New Advisory Agreement and the Transactions are consummated, at which time the Current Advisory Agreement will terminate and the New Advisory Agreement will go into effect.
If the shareholders of the Fund do not approve the New Advisory Agreement, the Board will consider other alternatives to the New Advisory Agreement. The Board could consider approval of an investment advisory agreement (the “Current TCS Agreement”) with respecta different investment adviser, subject to services provided by TCS and the advisory fee is identical. The material termsshareholder approval, or liquidation of the Fund if the Transactions are completed and shareholders have not approved the New TCS Agreement andAdvisory Agreement. The Board will take such action as it deems in the Current TCS Agreement are compared below in “Termsbest interests of shareholders of the Current and New TCS Agreements.”Fund.
Section 15(f) the 1940 Act
The Board has been advised that the Transaction has beenTransactions will be structured in compliance with the safe harbor provisions of Section 15(f) of the 1940 Act in that the AcquirerTorray has agreed that, following the closing of the Transaction,Transactions, it will use reasonable best efforts to enable the requirements of Section 15(f) to be met. Section 15(f) provides a non-exclusive safe harbor whereby an owner of an investment adviser to an investment company (such as the Funds)Fund) may receive payment or benefit in connection with the sale of an interest in the investment adviser if two conditions are satisfied.
The first condition specifies that no “unfair burden” may be imposed on the investment company as a result of thea transaction relating to the change of control, or any express or implied terms, conditions or understandings. An “unfair burden” includes: any arrangement during the two-year period after the sale of the interest in the investment adviser where the investment adviser (or predecessor or successor adviser), or any of its “interested persons” (as defined in the 1940 Act), receive or is entitled to receive any compensation, directly or indirectly, (i) from any person in connection with the purchase or sale of securities or other property to, from or on behalf of the investment company (other than bona fide ordinary compensation as principal underwriter for the investment company), or (ii) from the investment company or its shareholders (other than fees for bona fide investment advisory or other services). In addition, in order to avoid an “unfair burden” onconnection with the Funds, both TCA and TCS haveTransactions, Torray has contractually agreed to enter into a new expense limitation agreement with the Trust, on behalf of the Fund (the “New Expense Limitation Agreement”) which will require Torray to waive its management fees and reimburse expenses of eachthe Fund to the extent necessary to ensure that eachthe Fund’s total annual operating expenses (excluding Rule 12b-1 fees, shareholder servicing plan fees, interest expense, dividends paid on short sales leverage/borrowing interest, taxes, brokerage commissions, acquired fund fees and expenses and
extraordinary expenses) do not exceed such1.00% of the Fund’s current expense limitationsaverage daily net assets, through at least March 31, 2018 with respectApril 30, 2026.
The terms of the New Expense Limitation Agreement are identical to the TCA Fundsterms of the existing expense limitation agreement between Torray and January 31, 2019 with respectthe Trust, on behalf of the Fund (the “Current Expense Limitation Agreement”) . Subsequent to the Select Income Bond Fund. TCA or TCS may requestclosing of the Transactions, Torray will be permitted to seek recoupment of any management fees previously waived or expenses previously reimbursed under the Current Expense Limitation Agreement for a period of thirty-six months following the end of the month in which the fees were waived or expenses for three fiscal years from the date they were paid,reimbursed, subject to the expense limitation in place at the time of reimbursement and the expense limitation in place at the time of recoupment. Based on information provided to the Board, the Board anticipates that no “unfair burden” will be imposed upon the Fund for the relevant two-year period.
The second condition of Section 15(f) specifies that, during the three-year period immediately following consummation of the transaction,Transactions, at least 75% of a fund’s board of trustees must not be independent trustees.interested persons of Torray or the Trust as defined in Section 2(a)(19) of the 1940 Act. Currently, the Board meets this 75% requirement and the Board anticipates that it will continue to meet this requirement for the required three-year period. In addition, based on information provided to the Board, the Board anticipates that no “unfair burden” will be imposed upon the Funds for the relevant two-year period.
DESCRIPTION OF PROPOSAL 1
APPROVAL OF NEW INVESTMENT ADVISORY AGREEMENT
Information About the TCA Funds
Each TCA Fund is a series of the Trust. The Trust is an open-end management investment company organized as a Delaware statutory trust. TCA serves as the investment adviser of each TCA Fund. TCA’s principal office is located at 11550 Ash Street, Suite 300, Leawood, Kansas 66211-7811. Quasar Distributors, LLC (“Quasar”) is the distributor of the TCA Funds’ shares. Quasar is located at 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202. The TCA Funds’ administrator is U.S. Bancorp Fund Services, LLC, located at 615 East Michigan Avenue, Milwaukee, Wisconsin, 53202.
Information About TCA
TCA is registered as an investment adviser with the Securities and Exchange Commission (“SEC”) under the Investment Advisers Act of 1940, as amended (the “Adviser’s Act”). As of September 30, 2017, TCA managed approximately $16.0 billion of client assets. TCA provides investment management and advisory services to investment companies, individuals, pooled investment vehicles, corporations, state or municipal government entities, other investment advisers, insurance companies, charitable organizations and pension and profit sharing plans. TCA is wholly-owned by Tortoise Investments. Tortoise Investments shares an address with TCA. Mariner indirectly owns approximately 66% of Tortoise Investments. The remaining 34% of Tortoise Investments is currently owned by founders and employees of TCA, or an affiliate of TCA. Mariner, a global provider of financial services, is located at 5700 West 112th Street, Overland Park, Kansas 66211. Mariner is controlled by the Bicknell Family Holding Company, LLC.
The following table sets forth the name, position and principal occupation of each current principal officer of TCA, each of whom can be located through TCA’s principal office location.
Name | Position/Principal Occupation | |
Kevin H. Birzer | Director and Chief Executive Officer | |
Connie Savage | Chief Operating Officer | |
Diane M. Bono | Chief Compliance Officer | |
Terry C. Matlack | Director and Managing Director | |
Zachary A. Hamel | Director and Managing Director | |
Kenneth P. Malvey | Director and Managing Director | |
Other than the TCA Funds, TCA serves as investment adviser to the following closed-end funds which have investment objectives similar to the TCA Funds:
| Fund | Management Fee | Net Assets as of August 31, 2017 |
| Tortoise Energy Infrastructure Corporation | 0.95% | $1,296,652,109 |
| Tortoise MLP Fund, Inc. | 0.95% | $823,815,219 |
| Tortoise Pipeline & Energy Fund, Inc. | 1.10% | $199,503,365 |
| Tortoise Energy Independence Fund, Inc. | 1.10% | $171,941,542 |
*The management fee for the Tortoise Energy Infrastructure Corporation is based on managed assets in the Fund and reflects an annual rate of 0.95% of average monthly managed assets up to $2,500,000,000, 0.90% of average monthly assets between $2,500,000,000 and $3,500,000,000, and 0.85% of average monthly managed assets above $3,500,000,000.
Impact of the Transaction on the Funds’ Investment Advisory Agreement
Shareholders of each TCA Fund are being asked to approve the New TCA Agreement. The consummation of the Transaction will constitute an “assignment” (as defined in the 1940 Act) of the Current TCA Agreement. As required by the 1940 Act, the Current TCA Agreement provides for its automatic termination in the event of its assignment. Accordingly, the Current TCA Agreement will terminate upon the consummation of the Transaction.
If the shareholders of a TCA Fund do not approve the New TCA Agreement, the Board will consider other alternatives to the New TCA Agreement including the identification of a new investment adviser, or the possible liquidation of the TCA Funds. The Board will take such action as it deems in the best interests of shareholders of the TCA Funds.
Terms of the CurrentPrior and New TCAAdvisory Agreements
A copy of the New TCAAdvisory Agreement is attached as Exhibit A. The following description is only a summary; however, theall material terms of the New TCAAdvisory Agreement have been included in this summary. You should refer to Exhibit A for the New TCAAdvisory Agreement, and the description set forth in this proxy statement of the New TCAAdvisory Agreement is qualified in its entirety by reference to Exhibit A. TheThere are no differences between the terms of the New TCAAdvisory Agreement are substantially similar to the terms ofand the Current TCAAdvisory Agreement with respect to services provided by TCATorray and the Agreements are identical with respect to the advisory fees.
The Current TCAAdvisory Agreement with Torray was most recently approved by the Board with respect to the Fund on February 21, 2017.17-18, 2020. The initial shareholderCurrent Advisory Agreement was approved by shareholders of the MLP & Pipeline Fund approvedon November 14, 2016.For the fiscal year ended April 30, 2020, Torray did not receive any advisory fees after application of the Current TCA Agreement on May 31, 2011. The initial shareholder of the Select Opportunity Fund approved the Current TCA Agreement on September 30, 2013. The initial shareholder of the VIP MLP & Pipeline Portfolio approved the Current TCA Agreement on April 30, 2014.
Expense Limitation Agreement:
Advisory Services. Both the New TCAAdvisory Agreement and the Current TCAAdvisory Agreement state that, subject to the supervision and direction of the Board, TCATorray will provide for the overall management of the TCA Funds including,Fund including: (i) continuously investing the assets of the Fund in a manner consistent with the prospectus, other written guidelines or restrictions, as may be amended from time to time, agreed upon in writing by the Trust and Torray; (ii) determining the securities to be purchased, sold or otherwise disposed of by the Fund and the timing of such purchases, sales and dispositions; (iii) voting all proxies for securities and exercising all other voting rights with respect to each TCA Fund: (i) furnishing the Fundsuch securities in accordance with adviceTorray’s written proxy voting policies 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) managing and overseeing the investments of the Fund, subject to the ultimate supervision and direction of the Board; (iii) voting proxies for the Fund, filing ownership reports under Section 13 of the Securities Exchange Act of 1934 for the Fund, and taking other actions on behalf of the Fund;procedures; (iv) maintaining 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) issuing settlement instructions to custodians designated by the Trust and (v)(vi) furnishing to the Trust such information, evaluations, analyses and opinions formulated or obtained by TCATorray in the discharge of its duties, as the Trust may, from time to time, reasonably request, including at least one in-person appearance annually before the Board.
Management Fee. Both the New TCAAdvisory Agreement and Current TCAAdvisory Agreement contain identical fee structures. Both agreements provide that TCATorray shall receive an investment advisory fee from the Fund equal to 0.85%0.80% of the average daily net assets of each TCAthe Fund. TCA received a management fee of $15,580,039 from the MLP & Pipeline Fund during the fiscal year ended November 30, 2016. As a result of the operating expense limitation agreement between the Trust and TCA, TCA received a net fee (management fees less expense reimbursement) of $82,145 from the Select Opportunity Fund and $0 from the VIP MLP & Pipeline Portfolio during the fiscal year ended November 30, 2016.
Duration and Termination. Both the New TCAAdvisory Agreement and the Current TCAAdvisory Agreement provide that they will become effective upon the latter of approval by a majority of the Trustees who are not interested persons of the Trust as defined in the 1940 Act (“Independent Trustees”) and, if required, by a vote of the majority of the outstanding voting securities of each TCAthe Fund. Both agreements provide that they shall remain in effect for each TCAthe Fund for two years from the effective date and thereafter for successive periods of one year, subject to annual Board approval as required by the 1940 Act. Both the New TCAAdvisory Agreement and the Current TCAAdvisory Agreement provide for the termination of the agreement with respect to the Fund at any time (i) by the vote of the majority of the Board or by the vote of a majority of the outstanding securities of the Fund on at least 60 days’ written notice to TCA;Torray; or (ii) by TCATorray on not less than 60 days’ written notice to the Fund.
Payment of Expenses. Under both the New TCAAdvisory Agreement and the Current TCAAdvisory Agreement, TCATorray is responsible for providing the personnel, office space and equipment reasonably necessary for the operation of each TCAthe Fund, the expenses of printing and distributing copies of each TCAthe Fund’s prospectus, statement of additional information, and sales and advertising materials to prospective investors (to the extent such expenses are not covered by any applicable plan adopted pursuant to Rule 12b-1 under the 1940 Act), the costs of any special Board meetings or shareholder meetings convened for the primary benefit of TCA,Torray, and any costs of liquidating or reorganizing a TCAthe Fund. TCATorray also shall continue to be responsible on a monthly basis for any operating expenses that exceed the agreed upon expense limit, subject to the terms of such agreement.
Each TCAThe Fund is responsible for all of its own expenses, except for those specifically assigned to TCATorray under the New TCAAdvisory Agreement and the Current TCAAdvisory Agreement. The Fund will be responsible for the same expenses under the New Advisory Agreement includingas it is under the Current Advisory Agreement which include but are not limited to: fees and expenses incurred in connection with the issuance, registration and transfer of its shares; brokerage and commission expenses; all fees and expenses related to such TCA Fund custody, shareholder services and Fund accounting; interest charges on any borrowings; costs and expenses of pricing and calculating its daily net asset value and of maintaining its books; insurance premiums on property or personnel of the TCA Fund which inure to its benefit; the cost of preparing and printing regulatory documents and other communications for distribution to existing shareholders; legal, auditing and accounting fees; fees and expenses (including legal fees) of registering and maintaining registration of its shares for sale; all expenses of maintaining and servicing shareholder accounts, and all other charges and costs of its operation plus any extraordinary and non-recurring expenses.
Brokerage. Both the New TCAAdvisory Agreement and the Current TCAAdvisory Agreement provide that TCATorray shall be responsible for decisions to buy and sell securities for each TCAthe Fund, for broker-dealer selection and for negotiation of brokerage commission rates, provided that TCATorray shall not direct orders to an affiliated person of TCATorray without general prior authorization to use such affiliated broker or dealer from the Board. TCA’sTorray’s primary consideration in effecting a securities transaction will be to seek best execution. In selecting a broker-dealer to execute each particular transaction, TCA 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 a TCA 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.
Limitation on Liability and Indemnification. Both the New TCA Agreement and the Current TCA Agreement provide that, in the absence of willful misfeasance, bad faith, negligence, or reckless disregard of the duties imposed on TCA by the agreement, TCA will not be subject to liability to the Trust or the Fund for any act or omission in the course of, or connected with, rendering services under the agreement or for any losses sustained in the purchase, holding or sale of any security of the Fund.
Board Approval and Recommendation
The Board approved the New TCA Agreement at a meeting held on October 17, 2017. Prior to the meeting, the Board received and considered information from TCA and the Trust’s administrator designed to provide the Board with the information necessary to evaluate the approval of the New TCA Agreement (“Support Materials”). Before voting to approve the New TCA Agreement, the Board reviewed the Support Materials with Trust management and with counsel to the Independent Trustees, and received a memorandum from such counsel discussing the legal standards for the Board’s consideration of the New TCA Agreement. The Board considered the discussions it had with representatives of Tortoise Investments and Lovell Minnick during the October 17, 2017 Board meeting. The Board also considered the extent to which the Funds might benefit from TCA’s relationship with Lovell Minnick. This information formed the primary basis for the Board’s determinations.
In reaching its decision to approve the New TCA Agreement, the Board, with the assistance of the Trust’s legal counsel, considered their legal responsibilities with regard to all factors deemed to be relevant to the TCA Funds, including, but not limited to the following, with respect to each TCA Fund : (1) the quality of the services to be provided to the Fund by TCA; (2) the fact that five of the eight members of the investment committee that has been providing investment strategy oversight to the portfolio management team who implements the strategy for the Fund’s portfolio and its day-to-day investment management will continue to do so under the New TCA Agreement; (3) the fact that the Transaction is not expected to affect the manner in which the day-to-day portfolio management team provides investment advisory services to the Fund; (4) the fact that the fee structure under the New TCA Agreement would be identical to the fee structure under the Current TCA Agreement; (5) the fact that the advisory services under the New TCA Agreement and the Current TCA Agreement are substantially similar; and (6) other factors deemed relevant.
In approving the New TCA Agreement, the Board considered the following factors and made the following conclusions:
Nature, Extent and Quality of Services Provided to the Fund. The Trustees considered the scope of services that TCA would provide under the New TCA Agreement, noting that such services will include but are not limited to the following with respect to each TCA Fund: (1) investing the Fund’s assets consistent with the Fund’s investment objective and investment policies; (2) determining the portfolio securities to be purchased, sold or otherwise disposed of and the timing of such transactions; (3) voting all proxies with respect to the Fund’s portfolio securities; (4) maintaining the required books and records for transactions that TCA effects on behalf of the Fund; (5) selecting broker-dealers to execute orders on behalf of the Fund; and (6) monitoring and maintaining the Fund’s compliance with policies and procedures of the Trust and with applicable securities laws. The Trustees considered TCA’s strong capitalization and its significant amount of assets under management. The Trustees considered the specialized investment strategies that TCA uses to manage the TCA Funds, TCA’s experience in implementing similar strategies for other registered funds, and the significant investment experience of TCA and the investment committee in the energy industry. The Trustees concluded that they are satisfied with the nature, extent and quality of services that TCA will provide to each of the TCA Funds under the Investment Advisory Agreement.
Investment Performance of the Fund. In assessing the quality of the portfolio management to be delivered by TCA, the Trustees reviewed the short-term and longer-term performance of each TCA Fund on both an absolute basis and in comparison to an appropriate securities benchmark index, each TCA Fund’s respective peer funds according to Morningstar classifications, and each TCA Fund’s respective composite of separate accounts that Tortoise manages utilizing similar investment strategies as that of the TCA Fund. While the Trustees considered both short-term and longer-term performance of each TCA Fund, they placed greater emphasis on longer term performance. When reviewing each TCA Fund’s performance against its respective Morningstar peer group, the Trustees took into account that the investment objective and strategies of each TCA Fund, as well as the Fund’s level of risk tolerance, may differ significantly from funds in its peer group. The Trustees further noted the TCA Funds’ broad-based securities benchmark does not resemble each Fund’s respective investment strategies and portfolio holdings, each of which are focused on the energy sector.
| · | Tortoise MLP & Pipeline Fund. The Trustees noted the Fund’s performance exceeded the median and average of its Morningstar peer group for the year-to-date, one-year, three-year and five-year periods ended September 30, 2017. The Trustees further noted that the Fund was in the twelfth percentile of its category for the year-to-date period ended September 30, 2017, fifth percentile for the three-year period ended September 30, 2017 and eighth percentile for the five-year period ended September 30, 2017. The Trustees observed that the Fund had underperformed its benchmark S&P 500 Index for all periods ended September 30, 2017. The Trustees observed that the Fund’s performance was consistent with the performance of a composite of similar accounts managed by Tortoise over all relevant time periods.
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| · | Tortoise Select Opportunity Fund. The Trustees noted the Fund’s performance slightly exceeded the median and trailed the average of its Morningstar peer group for the year-to-date, period ended September 30, 2017; trailed the median and average for the peer group for the one-year period ended September 30, 2017; and exceeded the peer group median and average for the three-year period ended September 30, 2017. The Trustees further noted that the Fund was in the twenty-ninth percentile of its peer group for the three-year period ended September 30, 2017. The Trustees observed that the Fund had underperformed its benchmarks, the S&P 500 Index and S&P Select Sector Energy Index, for all periods ended September 30, 2017. The Trustees observed that the Fund’s performance was consistent with the performance of a composite of similar accounts managed by Tortoise over relevant time periods.
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| · | Tortoise VIP MLP & Pipeline Portfolio. The Trustees noted the Fund’s performance exceeded the median and average for the Fund’s Morningstar peer for the year-to-date, one-year and three-year periods ended September 30, 2017. The Trustees observed that the Fund had underperformed its benchmark S&P 500 Index for all periods ended September 30, 2017. The Trustees also observed that the Fund’s performance was consistent with the performance of a composite of similar accounts managed by Tortoise over relevant time periods.
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Advisory Fee. The Board reviewed and considered the advisory fee payable by each TCA Fund to TCA under the New TCA Agreement. The Board compared each TCA Fund’s contractual advisory fee and total expense ratio to industry data with respect to other mutual funds in the same Morningstar peer group. The Board noted :
| · | Tortoise MLP & Pipeline Fund. The Fund’s management fee was significantly lower than the average and median management fees of funds comprising the peer group. After the Fund’s expense reimbursements, the total expenses of the Fund’s Institutional and Investor Classes were lower than, and the C Class was higher than, the average and median total expenses of funds comprising the peer group.
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| · | Tortoise Select Opportunity Fund. The Fund’s management fee was higher than the average and median management fees of funds comprising the peer group, but well within the range of management fees borne by funds in the peer group. After the Fund’s expense reimbursements, the total expenses of the Fund’s Institutional Class were lower than, and the Investor and C Classes were higher than, the median and average total expenses of funds comprising the peer group.
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| · | Tortoise VIP MLP & Pipeline Portfolio. The Trustees noted that the Fund’s management fee was significantly lower than the average and median management fees of funds comprising the peer group. After the Fund’s fee waivers and expense reimbursements, the total expenses of the Fund’s Class II shares were above the median and average total expenses of funds comprising the peer group. The Trustees further noted the Fund is marketed solely to variable life and variable annuity clients, which generally have higher expense structures than traditional open-end funds due to the servicing fees that must be paid to the sponsoring insurer, and that the peer group funds do not necessarily represent these additional expenses. The Trustees also considered that when limited to comparably-sized funds, the total expenses of the Fund were below the peer group average. While recognizing that it is difficult to compare advisory fees because the scope of advisory services provided may vary from one investment adviser to another, the Trustees concluded that Tortoise’s advisory fee with respect to the Fund continues to be reasonable.
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Costs and Profitability. The Trustees considered the annual advisory fees that each TCA Fund would pay to TCA under the New TCA Agreement, as well as Tortoise’s profitability from services that TCA and its affiliates rendered to each Fund during the 12 month period ended June 30, 2017 under the Current TCA Agreement, noting that the management fee is the same in each agreement. The Trustees considered the effect of an expense limitation agreement on TCA’s compensation and that TCA has contractually agreed to reimburse each TCA Fund for operating expenses, as specified in the Funds’ prospectus. The Trustees also considered that while the management fees that TCA charges to separately managed accounts and various other registered and un-registered investment vehicles, each with similar investment strategies to those of the TCA Funds, may be higher, lower, or approximately equal to the advisory fee for the TCA Funds (depending upon the type of account or vehicle, size of the account, relationship and/or nature and level of services provided, among other factors), TCA has additional responsibilities with respect to the TCA Funds in comparison to accounts and vehicles for which TCA receives a smaller fee. The Trustees considered that these additional responsibilities include additional compliance obligations and the preparation of Board and shareholder materials, each of which justify the TCA Funds’ higher fee. The Trustees concluded that TCA’s service relationship with the Tortoise MLP & Pipeline Fund provides a reasonable profit and that its service relationship with the remaining TCA Funds has not been profitable.
Economies of Scale and Fee Levels Reflecting Those Economies. The Trustees considered whether the TCA Funds may benefit from any economies of scale, noting that the investment advisory fees for the TCA Funds do not contain breakpoints. The Trustees noted the assets in the Select Opportunity Fund and VIP MLP & Pipeline Portfolio remain quite low. The Trustees considered that because of TCA’s contractual obligations to reimburse each Fund for operating expenses above a specified cap, as described in each TCA Fund’s prospectus, TCA continues to reimburse expenses for the Select Opportunity Fund and VIP MLP & Pipeline Portfolio. The Trustees also noted the significant additional services that TCA provides to each of the Funds, including investor relations activities, press releases, coordination with the Funds’ principal underwriter, Board support, semi-annual shareholder letters, financial reporting support, proxy vote reporting support, quarterly commentaries, coordination regarding NAV calculations, annual prospectus updating, distribution policy management, tax coordination, line of credit oversight support, and support in maintaining the TCA Funds’ website. In addition, the Trustees noted that the MLP & Pipeline Fund incurred daily shareholder cash flows resulting in frequent trading and increased portfolio management responsibilities. The Trustees determined the current level of assets in the MLP & Pipeline Fund, and the Fund’s asset levels over the past twelve months, do not indicate a decrease in the level of advisory services that TCA will be required to provide to the Fund. With respect to the remaining TCA Funds, the Trustees noted at current asset levels, it was not necessary to consider the implementation of fee breakpoints at the present time. The Trustees further noted they would revisit the issue of breakpoints in the future for each of the TCA Funds as circumstances change and asset levels increase.
Other Benefits to TCA. The Trustees considered the direct and indirect benefits that could be realized by TCA and its affiliates from its relationship with the TCA Funds. The Trustees noted that TCA does not utilize soft dollar arrangements with respect to portfolio transactions and that TCA does not use affiliated brokers to execute any TCA Fund’s portfolio transactions. While the Trustees noted that Rule 12b-1 fees may be paid for shareholder and distribution services performed on behalf of the Funds, the Trustees also observed that the distribution expenses that Tortoise incurred significantly exceed any Rule 12b-1 payments from the Fund. The Trustees considered that Tortoise may receive some form of reputational benefit from services rendered to the Funds, but that such benefits are immaterial and cannot otherwise be quantified. The Trustees concluded that Tortoise does not receive additional material benefits from its relationship with the Funds.
Based on all of the information presented to and considered by the Board and the conclusions that it reached, the Board approved the New TCA Agreement on the basis that its terms and conditions are fair and reasonable and in the best interests of the Fund and its shareholders.
For the reasons set forth above, the Board unanimously recommends that shareholders of the Fund vote “FOR” the New TCA Agreement.
DESCRIPTION OF PROPOSAL 2
APPROVAL OF NEW INVESTMENT ADVISORY AGREEMENT
Information About the Select Income Bond Fund
The Select Income Bond Fund is a series of the Trust. The Trust is an open-end management investment company organized as a Delaware statutory trust. TCS serves as the Select Income Bond Fund’s investment adviser. TCS’s principal office is located at 11550 Ash Street, Suite 300, Leawood, Kansas 66211-7811. Quasar Distributors, LLC (“Quasar”) is the distributor of the Select Income Bond Fund’s shares. Quasar is located at 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202. The Fund’s administrator is U.S. Bancorp Fund Services, LLC, located at 615 East Michigan Avenue, Milwaukee, Wisconsin, 53202.
Information About TCS
TCS is registered as an investment adviser with the SEC under the Advisers Act. As of August 31, 2017, TCS managed approximately $4.0 billion of client assets. TCS provides investment management and advisory services to investment companies, individuals, pooled investment vehicles, corporations, other investment advisers, charitable organizations and pension and profit sharing plans. TCS is wholly-owned by TCS Holdings, LLC (“TCS Holdings”). TCS Holdings is majority owned by Tortoise Investments, LLC and minority owned by employees of TCS or its affiliates. Mariner indirectly owns 66% of Tortoise Investments. The remaining 34% of Tortoise Investments is currently owned by founders and employees of TCA. Mariner, a global provider of financial services, is located at 5700 West 112th Street, Overland Park, Kansas 66211. Mariner is controlled by the Bicknell Family Holding Company, LLC.
The following table sets forth the name, position and principal occupation of each current principal officer of TCS, each of whom can be located through TCS’s principal office location.
Name | Position/Principal Occupation |
Bradley J. Beman | Director, Chief Executive Officer and Chief Investment Officer |
Connie Savage | Chief Operating Officer |
Jason Rall | Chief Compliance Officer |
H. Kevin Birzer | Director |
Zachary A. Hamel | Director |
Gary P. Henson | Director |
Michelle R. Kelly | Director |
TCS does not serve as an investment adviser to any other registered funds with investment objectives similar to the Select Income Bond Fund.
Impact of the Transaction on the Fund’s Investment Advisory Agreement
Shareholders of Select Income Bond Fund are being asked to approve the New TCS Agreement. The consummation of the Transaction will constitute an “assignment” (as defined in the 1940 Act) of the Current TCS Agreement. As required by the 1940 Act, the Current TCS Agreement provides for its automatic termination in the event of its assignment. Accordingly, the Current TCS Agreement will terminate upon the consummation of the Transaction.
If the shareholders of the Fund do not approve the New TCS Agreement, the Board will consider other alternatives to the New TCS Agreement including the identification of a new investment adviser, or the possible liquidation of the Select Income Bond Fund. The Board will take such action as it deems in the best interests of shareholders of the Select Income Bond Fund.
Terms of the Current and New TCS Agreements
A copy of the New TCS Agreement is attached as Exhibit B. The following description is only a summary; however, the material terms of the New TCS Agreement have been included in this summary. You should refer to Exhibit B for the New TCS Agreement, and the description set forth in this proxy statement of the New TCS Agreement is qualified in its entirety by reference to Exhibit B. The terms of the New TCS Agreement are substantially similar to the terms of the Current TCS Agreement with respect to services provided by TCS and are identical with respect to the advisory fees.
The Current TCS Agreement was most recently approved by the Board on November 16, 2016. The initial shareholder of the Select Income Bond Fund approved the Current TCS Agreement on December 28, 2016.
Advisory Services. Both the New TCS Agreement and the Current TCS Agreement state that, subject to the supervision and direction of the Board, TCS will provide for the overall management of the Select Income Bond Fund including: (i) furnishing 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) managing and overseeing the investments of the Fund, subject to the ultimate supervision and direction of the Board; (iii) voting proxies for the Fund, filing ownership reports under Section 13 of the Securities Exchange Act of 1934 for the Fund, and taking other actions on behalf of the Fund; (iv) maintaining 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; and (v) furnishing to the Trust such information, evaluations, analyses and opinions formulated or obtained by TCS in the discharge of its duties, as the Trust may, from time to time, reasonably request, including at least one in-person appearance annually before the Board.
Management Fee. Both the New TCS Agreement and Current TCS Agreement contain identical fee structures. Both agreements provide that TCS shall receive an investment advisory fee equal to 0.45% of the average daily net assets of the Select Income Bond Fund. As a result of the operating expense limitation agreement between the Trust and TCS, TCS received a net fee (management fees less reimbursement) of 0.00% of the average daily net assets of the Select Income Bond Fund during the fiscal period ended September 30, 2017.
Duration and Termination. Both the New TCS Agreement and the Current TCS Agreement provide that they will become effective upon the latter of approval by a majority of the Independent Trustees and, if required, by a vote of the majority of the outstanding voting securities of the Select Income Bond Fund. Both agreements provide that they shall remain in effect for two years from the effective date and thereafter for successive periods of one year, subject to annual Board approval as required by the 1940 Act. Both the New TCS Agreement and the Current TCS Agreement provide for the termination of the agreement at any time (i) by the vote of the majority of the Board or by the vote of a majority of the outstanding securities of the Fund on at least 60 days’ written notice to TCS; or (ii) by TCS on not less than 60 days’ written notice to the Fund.
Payment of Expenses. Under both the New TCS Agreement and the Current TCS Agreement, TCS is responsible for providing the personnel, office space and equipment reasonably necessary for the operation of the Select Income Bond Fund, the expenses of printing and distributing copies of the Select Income Bond Fund’s prospectus, statement of additional information, and sales and advertising materials to prospective investors (to the extent such expenses are not covered by any applicable plan adopted pursuant to Rule 12b-1 under the 1940 Act), the costs of any special Board meetings or shareholder meetings convened for the primary benefit of TCS, and any costs of liquidating or reorganizing the Select Income Bond Fund. TCS also shall be responsible on a monthly basis for any operating expenses that exceed the agreed upon expense limit, subject to the terms of such agreement.
The Select Income Bond Fund is responsible for all of its own expenses, except for those specifically assigned to TCS under the New TCS Agreement and the Current TCS Agreement, 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 fees and expenses related to Select Income Bond Fund custody, shareholder services and Fund accounting; interest charges on any borrowings; costs and expenses of pricing and calculating its daily net asset value and of maintaining its books; insurance premiums on property or personnel of the Select Income Bond Fund which inure to its benefit; the cost of preparing and printing regulatory documents and other communications for distribution to existing shareholders; legal, auditing and accounting fees; fees and expenses (including legal fees) of registering and maintaining registration of its shares for sale; all expenses of maintaining and servicing shareholder accounts, and all other charges and costs of its operation plus any extraordinary and non-recurring expenses.
Brokerage. Both the New TCS Agreement and the Current TCS Agreement provide that TCS shall be responsible for decisions to buy and sell securities for the Select Income Bond Fund, for broker-dealer selection and for negotiation of brokerage commission rates, provided that TCS shall not direct orders to an affiliated person of TCS without general prior authorization to use such affiliated broker or dealer from the Board. TCS’s primary consideration in effecting a securities transaction will be to seek best execution. In selecting a broker-dealer to execute each particular transaction, TCSTorray 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 Select Income Bond 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.
Limitation on Liability and Indemnification. Both the New TCSAdvisory Agreement and the Current TCSAdvisory Agreement provide that, in the absence of willful misfeasance, bad faith, negligence, or reckless disregard of the duties imposed on TCSTorray by the agreement, TCSTorray will not be subject to liability to the Trust or the Select Income Bond Fund for any act or omission in the course of, or connected with, rendering services under the agreement or for any losses sustained in the purchase, holding or sale of any security of the Fund.
Board Approval and Recommendation
The Board approved the New TCSAdvisory Agreement at a meeting held on October 17, 2017.January 6, 2021 (the “January Meeting”). Prior to the meeting,January Meeting, the Board received and considered information from TCSTorray and the Trust’s administrator designed to provide the Board with the information necessary to evaluate the approval of the New TCSAdvisory Agreement (“Support Materials”). In addition, at the January Meeting, representatives of Torray met with the Board telephonically to discuss the Transactions. Before voting to approve the New TCSAdvisory Agreement, the Board reviewed the Support Materials with Trust management and with counsel to the Independent Trustees, and received a memorandum from such counsel discussing the legal standards for the Board’s consideration of the New TCSAdvisory Agreement. TheIn approving the New Advisory Agreement, the Board considered substantially the discussionssame factors as it had with representativesconsidered in approving the continuation of Tortoise Investments and Lovell Minnick during the October 17, 2017 Board meeting. The Board also consideredCurrent Advisory Agreement, which was completed at the extentBoard’s meeting on February 17-18, 2020, in addition to whichnew information regarding the Funds might benefit from TCS’ relationship with Lovell Minnick.Transactions. This information formed the primary basis for the Board’s determinations.
In reaching its decisiondetermining whether to approve the New TCSAdvisory Agreement, the Board, with the assistance of the Trust’s legal counsel,Trustees considered their legal responsibilities with regard to all factors deemed to bethey believed relevant, including the following with respect to the Select Income Bond Fund, including, but not limited toFund: (1) the following, the Fund : (1) thenature, extent, and quality of the services to be provided by Torray with respect to the Fund by TCS;Fund; (2) the fact thatFund’s historical performance as managed by Torray under the same Investment Policy & Strategy Committee that has been responsible forCurrent Advisory Agreement; (3) the overall strategic investment directioncosts of the Select Income Bond Fund’s portfolio will continueservices to provide overall strategic investment direction be provided by Torray and the profits to the sector portfolio management teams that implement the strategy under the New TCS Agreement with the only changes being the previously planned roll off of two members that had previously been disclosed to shareholders in the Fund’s prospectus; (3) the fact that the Transaction is not expected to affect the manner in which the sector portfolio management teams provide investment advisorybe realized by Torray from services rendered to the Fund; (4) comparative fee and expense data for the fact that the fee structure under the New TCS Agreement would be identical to the fee structure under the Current TCS Agreement;Fund and other investment companies with similar investment objectives; (5) the fact thatextent to which economies of scale may be realized as the Fund grows, and whether the advisory services underfee for the New TCS Agreement andFund reflects such economies of scale for the Current TCS Agreement are substantially similar;Fund’s benefit; and (6) other factors deemed relevant.benefits to Torray resulting from its relationship with the Fund. In their deliberations, the Trustees weighed to varying degrees the importance of the information provided to them, and did not identify any particular information that was all-important or controlling.
In approving the New TCSAdvisory Agreement, the Board considered the following factors and made the following conclusions:conclusions with respect to the Fund:
Nature, Extent and Quality of Services Provided to the Fund. The Trustees considered the scope of services that TCSTorray would provide under the New TCSAdvisory Agreement with respect to the Fund, noting that such services will include, but are not limited to, the following with respect to the Select Income Bond Fund:following: (1) investing the Fund’s assets consistent with the Fund’s investment objective and investment policies; (2) determining for the Fund the portfolio securities to be purchased, sold, or otherwise disposed of, and the timing of such transactions; (3) voting all proxies with respect to the Fund’sFund��s portfolio securities; (4) maintaining the required books and records for transactions that TCS effectsTorray effected on behalf of the Fund; (5) selecting broker-dealers to execute orders on behalf of the Fund; and (6) monitoring and maintaining the Fund’s compliance with policies and procedures of the Trust and with applicable securities laws. The Trustees notedconsidered Torray’s assets under management and its capitalization and reviewed Torray’s most recently audited financial statements. In that regard, the experienceTrustees determined that Torray had sufficient resources to support the portfolio management team in its implementation of the Investment Policy & Strategy Committee that is responsible forFund's principal investment strategies. The Trustees considered the overall strategic investment directionphilosophy of the Select Income Bond Fund.Fund’s portfolio manager and his investment analysis and portfolio management experience. The Trustees alsoBoard noted that the capitalizationFund’s portfolio manager has over 30 years of TCS,investment management experience and also notedis supported by a team of three analysts. The Board considered that Torray did not expect the support TCS receives from TCA inTransactions to materially impact the areanature, extent or quality of compliance among others.the services currently provided by Torray to the Fund, or the personnel that provide those services. The Trustees concluded that they were satisfied with the nature, extent and quality of services that TCSTorray would provide to the Fund under the New TCSAdvisory Agreement.
Investment Performance of the Fund. In assessing the quality of the portfolio management to be delivered by Torray, the Trustees reviewed the short-term and longer-term performance of the Fund on both an absolute basis and in comparison to an appropriate securities benchmark index, the Fund’s respective peer funds according to Morningstar classifications, and the Fund’s composite of separate accounts that Torray manages utilizing investment strategies similar to those of the Fund. When reviewing the Fund’s performance against its respective Morningstar peer group, the Trustees took into account that the investment objective and strategies of the Fund, as well as the Fund’s level of risk tolerance, may differ significantly from funds in its peer group. The Trustees observednoted that the Select Income Bond Fund had commenced operations on December 28, 2016outperformed its peer group median over the year-to-date and thereforeone-year periods ending October 31, 2020, but had a limited track record of performance.underperformed the peer group median over the three-year and five-year periods ended October 31, 2020. The Trustees consideredBoard also noted that the Fund’s year-to-date performance as of September 30, 2017 exceed the median and average of the Fund’s Morningstar peer group.Fund had underperformed its benchmark index across all reviewed periods ended October 31, 2020 but had achieved positive absolute returns across all periods. The Trustees also considered that the Fund’s performance exceeded the performance of its Bloomberg Barclays Aggregate Bond Index benchmark for the year-to-date periods ended September 30, 2017. The Trustees noted that the Select Income Bond Fund’s returns for the year-to-date ended September 30, 2017 period werehad been consistent with athe composite of separately managed accounts managed in a substantially similar strategy to the Select Income Bond Fund.
by Torray.
Advisory Fee. The Trustees considered a comparative analysis of the contractual expenses proposed to be borne by the Fund and those of funds in the same Morningstar peer group. The Trustees noted the Fund’s proposed advisory fee was higher than the peer group median and average. The Trustees also took into account that the proposed advisory fees borne by the Fund was within the range borne by funds in the peer group. The Trustees then considered that the proposed total expenses of the Institutional Class of the Fund (after waivers and expense reimbursements) was above the peer group median but below the average, but that the proposed total expenses of the Investor Class of the Fund (after waivers and expense reimbursements) were above the peer group median and average. They also considered that when the peer group was limited to comparably-sized funds, the Fund’s proposed advisory fee was above the peer group median and below the average. While recognizing that it is difficult to compare advisory fees since the scope of advisory services provided may vary from one investment adviser to another, the Trustees concluded that Torray’s proposed advisory fee is reasonable.
Costs and Profitability. The Trustees considered the proposed annual advisory feesfee that the Select Income Bond Fund wouldwill pay to TCSTorray under the New TCSAdvisory Agreement, as well as TCS’Torray’s profitability from services that TCS and its affiliatesTorray rendered to the Select Income Bond Fund during the period ended June 30, 2017 under the Current TCSAdvisory Agreement noting thatduring the management fee is the same in each agreement.12 month period ended September 30, 2020. The Trustees also considered the anticipated effect of an expense limitation agreementthe New Expense Limitation Agreement on TCS’Torray’s compensation and that TCSTorray has contractually agreed to reduce its advisory fees and, if necessary, reimburse the Select Income Bond Fund for operating expenses, as specified in the Fund’s prospectus. The Trustees also considered that while the management fees that TCSTorray charges to separately managed accounts and other un-registeredwith investment vehicles, each withstrategies similar investment strategies to those of the Select Income Bond Fund, may be higher, lower, or approximately equalFund. They observed that Torray charges management fees that range above and below the management fees charged to the advisory fee for the Select Income Bond Fund, (depending upon the type ofdepending on assets under management. The Trustees also took into account, or vehicle, size of the account, relationship and/or nature and level of services provided, among other factors), TCShowever, that Torray has additional responsibilities with respect to the Select Income Bond Fund, in comparison to accounts and vehicles for which TCS receives a smaller fee. The Trustees considered that these additional responsibilities includeincluding additional compliance obligations and the preparation of Board and shareholder materials, each of which justify the Select Income Bond Fund management fee.materials. The Trustees concluded that TCS’Torray’s service relationship with the Select Income Bond Fund hasis not been profitable.
Costscurrently profitable under the Current Advisory Agreement and Profitability. The Board reviewed and considered the advisory fee payable by the Select Income Bond Fundwas not anticipated to TCSbe immediately profitable under the New TCSAdvisory Agreement. The Board comparedIn that regard, the Select Income Bond Fund’s contractual advisory feeTrustees determined that Torray has adequate resources to support the portfolio management of the Fund and total expense ratioplans to industry data with respect to other mutual fundsgrow assets in the same Morningstar peer group.Fund which may lead to the relationship being profitable for Torray. The Board notedTrustees also agreed to continue to review the Select Income Bond Fund’s management fee was average and median management feesprofitability as part of funds comprising the peer group but well within the rangeits annual review of the management fees charged by funds in the peer group. After the Fund’s expense reimbursements, the total expenses of the Select Income Bond Fund’s Institutional Class were lower than, and the Investor Class were higher than, the average and median total expenses of funds comprising the peer group.
investment advisory contract with Torray.
Economies of Scale and Fee Levels Reflecting Those Economies. The Trustees then considered whether the Select Income Bond Fund wouldmay benefit from any economies of scale, noting that the proposed investment advisory feefees for the Select Income Bond Fund didin the New Advisory Agreement does not contain breakpoints. The Trustees notedadditionally took into account the fact that Torray had expressed a willingness to consider breakpoints as assets in the Select Income Bond Fund has limited operating history and that, given projected asset levels, an increase in assets would most likely not lead to economiesgrow but had reservations about adopting breakpoints for the Fund because of scale that TCS could shareconcerns about potential capacity constraints associated with the Select Income Bond Fund for the foreseeable future. The Trustees concluded that it is not necessary to consider the implementation of fee breakpoints at this time, but committed to revisiting this issue in the future as circumstances change and asset levels increase.strategy.
Other Benefits to TCS.Torray. The Trustees notedconsidered the direct and indirect benefits that TCS expectscould be realized by Torray from Torray’s relationship with the Fund. The Trustees considered the extent to utilizewhich Torray utilizes soft dollar arrangements with respect to portfolio transactions, and that Torray does not use affiliated brokers will not be used to execute the Fund’s portfolio transactions. The Trustees also noted that TCS may benefit from the Rule 12b-1 and shareholder servicing fees paid by the Investor Class of the Select Income Bond Fund. The Trustees considered that TCSTorray may receive some form of reputational benefit from services rendered to the Select Income Bond Fund, but that such benefits are immaterial and cannot otherwise be quantified. The Trustees concluded that TCS willTorray does not receive additional material benefits from its relationship with the Select Income Bond Fund.
Based on all of the information presented to and considered by the Board and the conclusions that it reached, the Board approved the New TCSAdvisory Agreement for the Fund on the basis that its terms and conditions are fair and reasonable and in the best interests of the Select Income Bond Fund and its shareholders.
For the reasons set forth above, the Board unanimously recommends that shareholders of the Select Income Bond Fund vote “FOR” the New TCS Agreement with TCS.
DESCRIPTION OF PROPOSAL 3
APPROVAL OF ADJOURNMENTS OF THE SPECIAL MEETING
The purpose of this Proposal 3 is to authorize the holder of proxies solicited under this proxy statement to vote the shares represented by the proxies in favor of the adjournment of the Special Meeting from time to time in order to allow more time to solicit additional proxies, as necessary, if there are insufficient votes at the time of the Special Meeting to constitute a quorum or to approve Proposal 1 or Proposal 2.
One or more adjournments may be made without notice other than an announcement at the Special Meeting, to the extent permitted by applicable law and the Funds’ governing documents. Any adjournment of the Special Meeting for the purpose of soliciting additional proxies will allow the Funds’ shareholders who have already sent in their proxies to revoke them at any time before their use at the Special Meeting, as adjourned.
New Advisory Agreement15with Torray.
INFORMATION ABOUT OWNERSHIP OF SHARES OF THE FUND
Outstanding Shares
Only shareholders of record at the close of business on October 17, 2017,January 25, 2021, the record date (the “Record Date”), will be entitled to notice of, and to vote at, the meeting. Pursuant toSpecial Meeting. On the Trust’s Agreement and Declaration of Trust each class of aRecord Date, the Fund shall vote togetherhad shares outstanding as a single class. On October 17, 2017, there were 241,880,489.489 shares of the Tortoise MLP & Pipeline Fund outstanding, comprised of 215,723,105.275 Institutional Class shares, 21,462,756.494 Investor Class shares and 4,694,627.720 Class C shares. On October 17, 2017, there were 6,793,262.631 shares of the Tortoise Select Opportunity Fund outstanding, comprised of 6,143,235.809 Institutional Class shares, 483,036.189 Investor Class shares and 166,990.633 Class C shares. On October 17, 2017, there were 792,043.214 shares of the Tortoise VIP MLP & Pipeline Portfolio, all of them Class II shares. On October 17, 2017, there were 134,407.509 shares of the Select Income Bond Fund outstanding, comprised of 112,582.778 Institutional Class shares and 21,824.731 Investor Class shares.disclosed below:
| | | | | | | | |
| Investor Class Shares | Institutional Class Shares | Total Shares |
| 66,665.13 | 684,877.49 | 751,542.62 |
Security Ownership of Management, Trustees and Principal Shareholders
As of the Record Date, to the best of the knowledge of the Trust, no Trustee or officer of the Trust beneficially owned 1% or more of the outstanding shares of anythe Fund, and the Trustees and the officers of the Trust, as a group, beneficially owned less than 1% of the outstanding shares of eachthe Fund. The Board is aware of no arrangements, the operation of which at a subsequent date may result in a change in control of the Fund. As of the Record Date, the Independent Trustees, and their respective immediate family members, did not own any securities beneficially or of record in TCA, TCS, U.S. Bancorp, the parent company of the distributor,Torray or any of their respective affiliates.Quasar Distributors, LLC. As of the record date, the following persons are known by the Trust to own beneficially or of record 5% or more of the outstanding shares of any class of the Funds:
Fund:
8
Name and Address | Number
of Shares | Percentage
of Class | Share Class |
Tortoise MLP & Pipeline Fund | | | |
Morgan Stanley Smith Barney LLC 1300 Thames Street FL 6 Baltimore, MD 21231-3496 | 10,469,045.955 | 48.78% | Investor |
| | | | |
Charles Schwab & Co Inc 211 Main Street San Francisco, CA 94105-1905 | 4,028,266.305 | 18.77% | Investor |
| | | | |
National Financial Services LLC FEBO Brian Eisendra 25490 Prado De Las Bellotas Calabasas, CA 91302-3658 | 2,413,149.042 | 11.24% | Investor |
| | | | | | | | | | | | | | |
| Name and Address | Number of Shares | Percentage of Class |
Share Class | Type of Ownership |
Robert E. Torray
7501 Wisconsin Avenue, Suite 750W
Bethesda, MD 20814-6532 | 444,015 | 64.83% | Institutional | Beneficial |
Charles Schwab & Co., Inc.
Special Custody A/C FBO Customers
Attn: Mutual Funds
211 Main Street
San Francisco, CA 94105-1905 | 147,235.33 | 21.50% | Institutional | Record |
Great-West Trust Company LLC
FBO Employee Benefits Clients 401K
8515 E Orchard Road, 2T2
Greenwood Village, CO 80111-5002 | 55,856.21 | 8.16% | Institutional | Record |
Charles Schwab & Co., Inc.
Special Custody A/C FBO Customers
Attn: Mutual Funds
211 Main Street
San Francisco, CA 94105-1905 | 57,350.34 | 86.03% | Investor | Record |
National Financial Services LLC
499 Washington Blvd
Jersey City, NJ 07310-1995 | 8,313.12 | 12.47% | Investor | Record |
Name and Address
| Number
of Shares
| Percentage
of Class
|
Share Class
|
| | | | |
LPL Financial 4707 Executive Drive San Diego, CA 92121-3091 | 1,353,198.980 | 6.30% | Investor |
| | | | |
Charles Schwab & Co Inc 211 Main Street San Francisco, CA 94105-1905 | 65,811,452.856 | 30.51% | Institutional |
| | | | |
National Financial Services LLC FEBO Fiduciary Trust Company PO Box 55806 Boston, MA 02205-5806 | 50,352,089.791 | 23.34% | Institutional |
| | | | |
Morgan Stanley Smith Barney LLC 1300 Thames ST Street FL 6 Baltimore, MD 21231-3496 | 28,680,346.637 | 13.29% | Institutional |
| | | | |
Strafe & Co FBO MDC Trust I - Diversified P O Box 6924 Newark, DE 19714-6924 | 21,735,821.817 | 10.08% | Institutional |
| | | | |
Morgan Stanley Smith Barney LLC 1300 Thames ST Street FL 6 Baltimore, MD 21231-3496 | 2,706,171.213 | 57.64% | Class C |
| | | | |
Charles Schwab & Co Inc 211 Main Street San Francisco, CA 94105-1905 | 311,147.086 | 6.63% | Class C |
| | | | |
LPL Financial 4707 Executive Drive San Diego, CA 92121-3091 | 270,231.283 | 5.76% | Class C |
| | | | |
Tortoise Select Opportunity Fund | | | |
Charles Schwab & Co Inc 211 Main Street San Francisco, CA 94105-1905 | 237,873.445 | 49.25% | Investor Class |
| | | | |
NFS LLC FEBO NATC & CO PO Box 874080 Kansas City, MO 64187-0001 | 117,714.310 | 24.37% | Investor Class |
VOTING INFORMATION
Name and Address
| Number
of Shares
| Percentage
of Class
|
Share Class
|
| | | | |
Morgan Stanley Smith Barney LLC 1 New York Plaza 12TH FL New York, NY 10004-1901 | 44,755.067 | 9.27% | Investor Class |
| | | | |
NFS LLC FEBO Bicknell Family Holding Co LLC 4200 W 115TH Street STE 100 Leawood, KS 66211-2729 | 3,794,800.159 | 61.77% | Institutional Class |
| | | | |
Morgan Stanley Smith Barney LLC 1300 Thames ST Street FL 6 Baltimore, MD 21231-3496 | 1,474,299.211 | 24.00% | Institutional Class |
| | | | |
Charles Schwab & Co Inc 211 Main Street San Francisco, CA 94105-1905 | 587,148.440 | 9.56% | Institutional Class |
| | | | |
Morgan Stanley Smith Barney LLC 1300 Thames ST Street FL 6 Baltimore, MD 21231-3496 | 62,324.444 | 37.32% | Class C |
| | | | |
Charles Schwab & Co Inc 211 Main Street San Francisco, CA 94105-1905 | 37,026.257 | 22.17% | Class C |
| | | | |
LPL Financial 4707 Executive Drive San Diego, CA 92121-3091 | 28,349.753 | 16.98% | Class C |
| | | | |
Tortoise Capital Advisors, L.L.C. 11550 Ash Street, STE 300 Leawood, KS 66211-7811 | 14,763.375 | 8.84% | Class C |
| | | | |
NFS LLC FEBO Ronald L Chapman Beth A Chapman TTE 9351 West Route O #2 Rocheport, MO 65279-9332 | 8,899.322 | 5.33% | Class C |
| | | | |
Tortoise VIP MLP & Pipeline Portfolio | | | |
Jefferson National Life Insurance Company 10350 Ormsby Park PL STE 600 Louisville, KY 40223-6175 | 774,524.053 | 97.79% | Class II |
| | | | |
Select Income Bond Fund | | | |
Tortoise Investments, LLC 11550 Ash Street, STE 300 Leawood, KS 66211-7811 | 20,000.000 | 91.64% | Investor Class |
| | | | |
Charles Schwab & Co Inc 211 Main Street San Francisco, CA 94105-1905 | 18,594.01 | 8.36% | Investor Class |
Name and Address
| Number
of Shares
| Percentage
of Class
| Share Class
|
| | | | |
Tortoise Investments, LLC 11550 Ash Street, STE 300 Leawood, KS 66211-7811 | 80,000.000 | 71.06% | Institutional Class |
| | | | |
Charles Schwab & Co Inc 211 Main Street San Francisco, CA 94105-1905 | 16,370.113 | 14.54% | Institutional Class |
| | | | |
National Financial Services LLC FEBO H Kevin Birzer TTEE 6009 W 137TH ST Overland Park, KS 66223-3505 | 15,103.317 | 13.42% | Institutional Class |
| | | | |
VOTING INFORMATION
Who is Eligible Toto Vote
Shareholders of record of the FundsFund as of the close of business on October 17, 2017 (the “Record Date”),the Record Date, are entitled to vote on the proposal or proposals that relate to the Fund at the meetingSpecial Meeting and any adjournments thereof. Each whole share is entitled to one vote on each matter on which it is entitled to vote, and each fractional share is entitled to a proportionate fractional vote.
Quorum
In order for a vote on the Proposal 1 or Proposal 2 to occur at the Special Meeting, there must exist a quorum of shareholders of the Funds. TheFund to which the Proposal relates. With respect to the Fund, the presence at the Special Meeting, in person or by proxy, of shareholders representing one-third of the Fund’s shares outstanding and entitled to vote as of the Record Date constitutes a quorum for the Special Meeting. For purposes of determining the presence of a quorum, abstentions and broker “non-votes” will be counted as present. Broker “non-votes” occur when a nominee holding shares for a beneficial owner does not vote on a proposal because the nominee does not have discretionary voting powers with respect to that proposal and has not received instructions from the beneficial owner.
In the event that the necessary quorum to transact business is not present at the Special Meeting, or the vote required to approve the Proposal 1 or Proposal 2 is not obtained the chairman ofat the Special Meeting, in order to permit the further solicitation of proxies, may adjourn the Special Meeting, subject to approval of Proposal 3, with respect to Proposal 1 or Proposal 2 from time to time to a date not more than 90 days after the original date of the meeting without further notice other than announcement at the Special Meeting. Alternatively, if a shareholder vote is called on any proposal to adjourn, the persons named as proxies may propose one or their substitutes,more adjournments of the Special Meeting with respect to the Proposal in accordance with applicable law to permit further solicitation of proxies. Any adjournment of the Special Meeting will require the affirmative vote of the holders of a simple majority of the Fund’s shares cast at the Special Meeting, and any adjournment with respect to the Proposal will require the affirmative vote of the holders of a simple majority of the Fund’s shares entitled to vote on the Proposal cast at the Special Meeting. The persons named as proxies will vote on suchfor or against any adjournment in their discretion.
Vote Required to Pass the Proposals
As provided under the 1940 Act, approval of the New TCA Agreement with respect to each TCA Fund will require the vote of a majority of the outstanding voting securities of each TCA Fund. Approval of the New TCS AgreementProposal will require the vote of a majority of the outstanding voting securities of the Select Income Bond Fund.Fund to which the Proposal relates. In accordance with the 1940 Act, a “majority of the outstanding voting securities” of the Fund means the lesser of (a) 67% or more of the shares of the Fund present at a shareholder meeting if the owners of more than 50% of the shares of the Fund then outstanding are present in person or by proxy, or (b) more than 50% of the outstanding shares of the Fund entitled to vote at the meeting.
Proposal 3 requires the vote of a majority of the votes cast, either in person or by proxy, at the Special Meeting to approve any adjournment(s) of the Special Meeting, even if the number of votes cast is fewer than the number required for a quorum. Abstentions and broker “non-votes” will have the effect of a “no” vote for purposes of obtaining the requisite approval of the proposals.
The approval of an investment advisory agreement by shareholders of one Fund is not contingent on the approval of the investment advisory agreement by any other Fund. Each of the New TCA Agreement and the New TCS Agreement was approved separately by the Independent Trustees of the Board, and by the Board of the Trust as a whole, after consideration of all factors that it determined to be relevant to its deliberations, including those discussed above. The Board also determined to submit the New TCA Agreement and New TCS Agreement for consideration by the shareholders of each relevant Fund. If the shareholders of a Fund do not approve the New TCA Agreement or New TCS Agreement, as applicable, the Board will consider other possible courses of action for that particular Fund, as described above.
proposal.
Proxies and Voting at the Special Meeting
Shareholders may use the proxy card or voting instruction forms provided if they are unable to attend the meeting in person or wish to have their shares voted by a proxy even if they do attend the meeting. Any shareholder of athe Fund giving a proxy has the power to revoke it prior to its exercise by mail (addressed to the Secretary at the principal executive office of the Trust shown at the beginning of this proxy statement), or in person at the meeting, by executing a superseding proxy or by submitting a notice of revocation to the Fund. Variable Contact owners may revoke their voting instructions by sending a written notice to the applicable Participating Insurance Company expressly revoking their instructions, by signing and forwarding to the Participating Insurance Company superseding voting instructions, or otherwise giving notice of revocationIn addition, although mere attendance at the Meeting.Special Meeting will not revoke a proxy, a shareholder present at the Special Meeting may withdraw a previously submitted proxy and vote in person. To obtain directions on how to attend the meetingSpecial Meeting and vote in person, please call (866) 751-6315.1-844-406-4960.
For Direct Owners.All properly executed proxies received in time for the meetingSpecial Meeting will be voted as specified in the proxy or, if no specification is made, FOR the proposalsProposal referred to in the proxy statement and in the discretion of the persons named as proxies on such procedural matters that may properly come before the meeting.Special Meeting . If any other business comes before the meeting,Special Meeting, your shares will be voted at the discretion of the persons named as proxies.
For Variable Contract Owners:
Voting instruction forms that are properly signed, dated and received by the applicable Participating Insurance Company will be voted as specified. If you specify a vote, your Participating Insurance Company will vote those shares attributable to your Variable Contract as you indicate. Any shares of the Tortoise VIP MLP & Pipeline Portfolio for which signed voting instructions forms are received but without specified instructions will be voted FOR the Proposals. Any shares for which no voting instructions are received generally will be voted by the Participating Insurance Company in proportion to those shares for which timely instructions are received. The effect of this proportional voting is that Variable Contract owners representing a small number of shares may determine the outcome of the vote. Variable Contract owners should contact their Participating Insurance Company for information about any applicable deadline for providing voting instructions to such Participating Insurance Company. Please see your Variable Contract prospectus for information on how to contact your Participating Insurance Company.
Telephonic Voting. If eligible, shareholdersShareholders may call the toll-free phone number indicated on their proxy card to vote their shares. Shareholders will need to enter the control number set forth on their proxy card and then will be prompted to answer a series of simple questions. The telephonic procedures are designed to authenticate a shareholder’s identity, to allow shareholders to vote their shares and to confirm that their instructions have been properly recorded.
Method of Solicitation and Expenses
The Funds haveTorray has not engaged AST Fund Solutions, LLC (the “AST”)a third party to assist in the solicitation of proxies. The solicitation of proxies willmay occur principally by mail, but proxies may also be solicited by telephone, e-mail or other electronic means, facsimile or personal interview. If instructions are recorded by telephone, the person soliciting the proxies will use procedures designed to authenticate shareholders’ identities to allow shareholders to authorize the voting of their shares in accordance with their instructions, and to confirm that a shareholder’s instructions have been properly recorded.
The cost of preparing, printing and mailing the enclosed proxy card and this proxy statement, and all other costs incurred in connection with the solicitation of proxies, including any additional solicitation made by letter, telephone, facsimile or telegraph is estimated to be $503,490.$3,388. The cost of solicitation will be will be borne by the Acquirer and selling members of Tortoise Investments.Torray. In addition to the solicitation by mail, officers and employees of TCS, TCATorray and /or their affiliates, who will receive no extra compensation for their services, may solicit proxies by telephone, e-mail or other electronic means, letter or facsimile. ASTComputershare Fund Services has also been retained as proxy tabulator.
The FundsFund will not bear any expenses in connection with the Transaction,Transactions, including any costs of soliciting shareholder approval.
Shareholder Proposals for Subsequent Meetings
The Funds doFund does not hold annual shareholder meetings except to the extent that such meetings may be required under the 1940 Act or state law. Shareholders who wish to submit proposals for inclusion in the proxy statement for a subsequent shareholder meeting should send their written proposals to the Trust’s Secretary at its principal office within a reasonable time before such meeting. The timely submission of a proposal does not guarantee its inclusion.
Householding
If possible, depending on shareholder registration and address information, and unless you have otherwise opted out, only one copy of this Proxy Statement will be sent to shareholders at the same address. However, each shareholder will receive separate proxy cards. If you would like to receive a separate copy of the Proxy Statement, please call 1-866-751-6315.844-406-4960. If you currently receive multiple copies of Proxy Statements or shareholder reports and would like to request to receive a single copy of documents in the future, please call 1-855-822-3863844-406-4960 or write to USBFSthe Fund at 615 East Michigan Street, Milwaukee, Wisconsin 53202.
Other Matters to Come Before the Meeting
No business other than the mattermatters described above is expected to come before the meeting,Special Meeting, but should any other matter requiring a vote of shareholders arise the persons named as proxies will vote thereon in their discretion according to their best judgment in the interests of the FundsFund and theirits shareholders.
Dated: November 6, 2017February 8, 2021
Please complete, sign and return the enclosed proxy card in the enclosed envelope. You may proxy vote by telephone in accordance with the instructions set forth on the enclosed proxy card. No postage is required if mailed in the United States.
EXHIBIT A
FORM OF NEW ADVISORY AGREEMENT
MANAGED PORTFOLIO SERIES
INVESTMENT ADVISORY AGREEMENT
This AGREEMENT is made as of the [___][…] day of [______] 2018,[…] 2021, by and between Managed Portfolio Series, a Delaware statutory trust (the “Trust”) and Tortoise Capital Advisors, L.L.C.,Torray LLC, a Delaware limited liability company (the “Adviser”).
WHEREAS, the Adviser is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and engages in the business of providing investment management services; and
WHEREAS, the Trust is registered with the U.S. Securities and Exchange Commission (the “SEC”) as an open-end investment company under the Investment Company Act of 1940, as amended (the “1940 Act”) and consists of several separate series of shares, each having separate assets and liabilities, its own investment objectives and policies, and which is authorized to create additional series in the future; and
WHEREAS, the Trust desires to retain the Adviser to provide investment advisory services to those Trust series listed in Schedule A (each a “Fund”) on or after the date of this Agreement and the Adviser is willing to render such services, subject to supervision and direction of the Trust’s Board of Trustees (the “Board”) and the terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
1.APPOINTMENT OF ADVISER
The Trust hereby appoints, and the Adviser hereby accepts the appointment, to act as investment adviser to each Fund, subject to the supervision and direction of the Board, on the terms herein set forth and for the compensation herein provided. In connection with this appointment:
(a)Delivery of Trust Documentation. The Trust shall deliver to the Adviser copies of: (i) the Trust’s Agreement and Declaration of Trust and Bylaws, as may be amended from time to time (collectively, “Organic Documents”); (ii) each Fund’s prospectus and statement of additional information as may be amended from time to time (collectively, as currently in effect (“Prospectuses”)); and (iii) all Trust policies and procedures relevant to a Fund as may be amended from time to time (collectively, “Trust Procedures”). The Trust shall cause all service providers to the Trust to furnish information to the Adviser and to assist the Adviser as may be reasonably required and shall ensure that the Adviser has reasonable access to all relevant records and documents maintained by the Trust or any service provider to the Trust.
(b)Independent Contractor. The Adviser shall for all purposes herein be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized, have no authority to act for or be deemed an agent of a Fund.
(c)The Adviser’s Representations. The Adviser represents, warrants and agrees that:
(i)It has all requisite power and authority to enter into and perform its obligations under this Agreement, and has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement;
(ii)It is registered as an investment adviser under the Advisers Act and will continue to be so registered during the term of this Agreement;
(iii) It has adopted and implemented a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act (the “Code of Ethics”) and, if it has not already done so, will provide the Trust with a copy of such Code of Ethics and any amendments thereto;
(iv)It has adopted and implemented written policies and procedures, as required by Rule 206(4)-7 under the Advisers Act, which are reasonably designed to prevent violations of federal securities laws by the Adviser, its employees, officers, and agents (“Compliance Procedures”) and, if it has not already done so, will provide the Trust with a copy of the Compliance Procedures and any amendments thereto;
(v)It has delivered to the Trust copies of its Form ADV as most recently filed with the SEC and will provide the Trust with a copy of any future filings of Form ADV or any amendments thereto;
(vi) It is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement and will promptly notify the Trust of the occurrence of any event that would disqualify the Adviser from serving as an investment adviser to a Fund pursuant to Section 9(a) of the 1940 Act or other applicable law, rule or regulation;
(vii)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 by the Adviser in order to perform its services contemplated by this Agreement; and
(viii) This Agreement, when executed and delivered, will constitute a legal, valid and binding obligation of the Adviser, enforceable against the Adviser 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.
(d)The Trust’s Representations. The Trust represents, warrants and agrees that:
(i)This Agreement has been duly authorized by appropriate action of the Trust and its shareholders to the extent required under the 1940 Act;
(ii)It has received a copy of Part 2A of the Adviser’s Form ADV as is currently in effect as of the date of this Agreement; and
(e)Plenary authority of the Board of Trustees. The Adviser acknowledges that each Fund is a mutual fund that operates as a series of the Trust under the supervision and direction of the Board.
2. | PROVISION OF INVESTMENT ADVISORY SERVICES |
Subject to the delegation of any of the following duties to one or more persons permitted by Section 19 of this Agreement, the Adviser shall render the following services to the Trust:
(a)The Adviser shall assume all investment duties and have full discretionary power and authority with respect to investment of the assets of each Fund. Without limiting the generality of the foregoing, the Adviser shall, with respect to the assets of each Fund: (i) obtain and evaluate such information and advice relating to the economy, securities markets and securities as it deems necessary or useful to discharge its duties hereunder; (ii) continuously invest the assets in a manner consistent with the Organic Documents, other written guidelines or restrictions, as may be amended from time to time, agreed upon in writing by the Trust and the Adviser which guidelines and restrictions shall not be inconsistent with the Prospectuses (“Written Guidelines”), and the Trust Procedures, as may be provided to the Adviser consistent with Section 1(a)(i) of this Agreement; (iii) determine the securities to be purchased, sold or otherwise disposed of and the timing of such purchases, sales and dispositions; (iv) vote all proxies for securities and exercise all other voting rights with respect to such securities in accordance with the Adviser’s written proxy voting policies and procedures; (v) maintain the books and records required to be maintained by the Fund under the 1940 Act with respect to portfolio transactions affected pursuant to this Agreement; (vi) promptly issue settlement instructions to custodians designated by the Trust; (vii) evaluate the credit worthiness of securities dealers, banks and other entities with which the Fund may engage in repurchase agreements and monitor the status of such agreements; and (viii) take such further action, including the placing of purchase and sale orders and the selection of broker-dealers to execute such orders on behalf of the Fund, as the Adviser shall deem necessary or appropriate, in its sole discretion, to carry out its duties under this Agreement.
(b)The Adviser shall also furnish to or place at the disposal of the Trust such information, evaluations, analyses and opinions formulated or obtained by the Adviser in the discharge of its duties, as the Trust may, from time to time, reasonably request.
(c)The Adviser agrees, that in performing its duties hereunder, it will comply, in all material respects, with (i) the 1940 Act, the Advisers Act and all rules and regulations promulgated thereunder; (ii) all other federal and state laws and regulations applicable to the Adviser; (iii) applicable provisions of the Internal Revenue Code of 1986, as amended; and (iv) the provisions of the Organic Documents.
(d)The Adviser shall keep accurate and detailed records concerning its services under this Agreement and all such records shall be open to inspection at all reasonable times by the Trust and any appropriate regulatory authorities. The Adviser shall provide to the Trust copies of any and all documentation relating to each Fund’s transactions upon reasonable request. The Adviser agrees that all records which it maintains for each Fund are the property of the Fund and it further agrees to surrender promptly to the Fund copies of any such records upon the Fund’s request, provided that the Adviser shall be entitled to keep copies of any such records.
(e)At the request of the Trust from time to time, the Adviser shall provide pricing and valuation information with respect to particular securities it has purchased for each Fund if the Trust has determined that such pricing and valuation information is not otherwise reasonably available to it through standard pricing services. In the event that the Adviser believes a valuation provided by a pricing service for a security it has purchased for a Fund is materially inaccurate, the Adviser agrees to promptly notify the Trust.
(f)From time to time at the request of the Trust, the Adviser will (i) meet, either in person or via teleconference, with such other persons as the Trust may designate, including the Board, on reasonable notice and at reasonable times and locations, to discuss general economic conditions, performance, investment strategy and other matters relating to each Fund; and/or (ii) provide written materials to the Trust , including the Board, on reasonable notice, discussing general economic conditions, performance, investment strategy and other matters relating to each Fund.
(g)The Adviser shall be responsible for filing any required reports on its behalf with the Securities and Exchange Commission pursuant to Section 13(f) of the Securities Exchange Act of 1934 (the “1934 Act”) and the rules and regulations thereunder.
(h)To the extent reasonably requested by the Trust, the Adviser will use its best efforts to assist the Trust in connection with the Trust’s compliance with the Federal securities laws, as such term is defined in Rule 38a-1 under the 1940 Act, (“Federal Securities Laws”), including, without limitation, providing the Chief Compliance Officer of the Trust with: (i) Compliance Procedures, as may be amended from time to time (including prompt notice of any material changes thereto); (ii) a summary of the Compliance Procedures in connection with the annual review thereof by the Trust; (iii) upon request, a certificate of the chief compliance officer of the Adviser to the effect that the policies and procedures of the Adviser are reasonably designed to prevent violation of the Federal Securities Laws; (iv) direct access to the Adviser’s chief compliance officer, as reasonably requested by the Chief Compliance Officer of the Trust; (v) a completed quarterly informational questionnaire regarding the Adviser’s compliance program; and (vi) quarterly certifications indicating whether there were Material Compliance Matters (as that term is defined by Rule 38a-1) that arose under the compliance policies and procedures of the Trust and/or Compliance Procedures in such detail as may be reasonably requested by the Chief Compliance Officer of the Trust.
(i)Except as permitted by the Trust Procedures, the Adviser will not disclose but shall treat confidentially all information in respect of the investments of each Fund, including, without limitation, the identification and market value or other pricing information of any and all portfolio securities or other financial instruments held by the Fund, and any and all trades of portfolio securities or other transactions effected for the Fund (including past, pending and proposed trades).
(j)The Trust or its agent will provide timely information to the Adviser regarding such matters as inflows to and outflows from each Fund and the cash requirements of, and cash available for investment in each Fund. The Trust or each Fund’s custodian (the “Custodian”) will timely provide the Adviser with copies of monthly accounting statements for each Fund, and such other information as may be reasonably necessary or appropriate in order for the Adviser to perform its responsibilities hereunder.
(k)The Adviser shall not consult with any other investment adviser (other than affiliated persons of the Adviser) of any other series of the Trust concerning portfolio transactions for a Fund or any other series of the Trust.
(m)The Adviser shall maintain errors and omissions insurance in an amount at least equal to that disclosed to the Board in connection with the approval of this Agreement pursuant to Section 7 of this Agreement.
The Adviser is responsible for decisions to buy and sell securities for each Fund, for broker-dealer selection, and for negotiation of brokerage commission rates, provided that the Adviser shall not direct an order to an affiliated person of the Adviser without general prior authorization to use such affiliated broker or dealer from the Trust’s Chief Compliance Officer. The Adviser’s primary consideration in effecting a securities transaction will be to seek best execution. In selecting broker-dealers to execute transactions, the Adviser may take the following, among other things, into consideration: the best net price available; the reliability, integrity and financial condition of the broker-dealer; the size of and the difficulty in executing the order; and the value of the expected contribution of the broker-dealer to the investment performance of a Fund on a continuing basis. The execution price of a transaction may be less favorable than that available from another broker-dealer if the difference is reasonably justified by other aspects of the execution services offered.
Subject to such policies as the Board may determine and consistent with Section 28(e) of the 1934 Act, 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 a 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 a Fund and to other clients of the Adviser as to which the Adviser exercises investment discretion. Subject to the same policies and legal provisions, the Adviser is further authorized to allocate the orders placed by it on behalf of a Fund to such brokers or dealers who also provide research or statistical material, or other services to the Trust, the Adviser or any affiliated person 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 a 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, the allocation of the securities so purchased or sold, as well as the expense incurred in the transaction, will be made by the Adviser in the manner it considers to be equitable and consistent with its fiduciary obligations to a Fund and to such other clients.
The Trust authorizes and empowers the Adviser to open and maintain trading accounts in the name of a Fund and to execute for the Fund as its agent and attorney-in-fact standard institutional customer agreements with such broker or brokers as the Adviser shall select as provided herein. The Adviser shall cause all securities and other property purchased or sold for a Fund to be settled at the place of business of the Custodian or as the Custodian shall direct. All securities and other property of a Fund shall remain in the direct or indirect custody of the Custodian except as otherwise authorized by the Board.
The Adviser further shall have the authority to instruct the Custodian to pay cash for securities and other property delivered to the Custodian for a Fund and deliver securities and other property against payment for the Fund, and such other authority granted by the Trust from time to time. The Adviser shall not have authority to cause the Custodian to deliver securities and other property or pay cash to the Adviser except as expressly provided herein.
(a)With respect to the operation of a Fund, the Adviser shall be responsible for (i) the Fund’s organizational expenses; (ii) providing the personnel, office space and equipment reasonably necessary to perform its obligations hereunder; (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 1940 Act (each, a “12b-1 Plan”); (iv) the costs of any special Board meetings or shareholder meetings convened for the primary benefit of, and requested by, the Adviser; and (v) any costs of liquidating or reorganizing the Fund if the liquidation or reorganization is made at the request of the Adviser (unless such cost is otherwise allocated by the Board). If the Adviser has agreed to limit the operating expenses of a Fund, the Adviser also shall be responsible on a monthly basis for any operating expenses that exceed the agreed upon expense limit, subject to the terms of such agreement.
(b)A Fund is responsible for and has assumed the obligation for payment of its expenses, other than as stated in Section 4(a) above, including but not limited to: fees and expenses (including legal fees) incurred in connection with the issuance, registration (and maintenance of registration) and transfer of its shares; commissions, spreads, fees and other expenses connected with the acquisition, holding, disposition of securities and other investments including placement and similar fees in connection with direct placements entered into on behalf of the Fund; 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; all expenses incurred in connection with borrowings; dividend expenses related to short sales; costs and expenses of pricing and calculating its daily net asset value and of maintaining its books of account required under the 1940 Act; taxes, if any; its portion of expenditures in connection with meetings of the Board that are properly payable by the Fund; its allocable portion of expenditures in connection with meetings of shareholders as determined by the Board; its allocable portion of salaries and expenses of officers of the Trust other than officers and employees of U.S. Bancorp Fund Services, LLC or any duly appointed successor (the “Administrator”) (except the Trust’s Chief Compliance Officer if determined to be appropriate by the Board); its allocable portion of fees and expenses of members of the Board or members of any advisory board or committee who are not members of, affiliated with or interested persons of the Adviser or the Administrator; its allocable portion of the Trust’s 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 of the Fund or other communications for distribution to existing shareholders; its allocable portion of the Trust’s legal, auditing and accounting fees; its allocable portion of the Trust’s trade association dues or educational program expenses determined appropriate by the Board; all expenses of maintaining and servicing shareholder accounts of the Fund maintained with the Trust’s transfer agent, including all charges for transfer, shareholder recordkeeping, distribution disbursing, redemption; and all other charges and costs of its operation plus any extraordinary and non-recurring expenses including litigation, proceedings, claims and indemnification obligations to its directors, officers, service providers and shareholders, except as herein otherwise prescribed.
(c)The Adviser may voluntarily or contractually absorb certain Fund expenses.
(d)To the extent the Adviser incurs any costs by assuming expenses which are an obligation of a 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 a 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)To the extent that the Adviser pays fees in addition to any Fund distribution or servicing fees to financial intermediaries, including without limitation banks, broker-dealers, financial advisors, 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, the Adviser shall report such payments regularly to the Trust on the amounts paid and the relevant financial institutions.
(f)The fee payable to the Adviser under this Agreement with respect to a Fund may be reduced to the extent of any receivable owed by the Adviser to the Fund (provided that such obligation is not subject to a good faith dispute) or as required under any operating expense limitation agreement applicable to the Fund.
| 5. | INVESTMENT ADVISORY FEES |
(a)For all of the services rendered with respect to a Fund as herein provided, the Trust shall pay to the Adviser a fee at an annual rate based on the Current Net Assets (as defined below) of the Fund as set forth in Schedule A attached hereto and made a part hereof. Such fee shall be accrued by a Fund daily and shall be payable monthly in arrears, within fifteen business days after the last day of each month. If fees begin to accrue with respect to a Fund during the middle of a month, all fees for the period from that date to the end of the month shall be prorated according to the proportion that the period bears to the full month. In the case of termination of this Agreement with respect to a Fund during any month, all fees accrued from the beginning of that month to, but excluding, the date of termination, shall be prorated according to that proportion that the period bears to the full month and shall be paid promptly following such termination. For purposes of computing the amount of advisory fee accrued for any day, “Current Net Assets” shall mean a Fund’s net assets as of the most recent preceding day for which the Fund’s net assets were computed.
(b)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 a 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.
(c)Any such reductions made by the Adviser in its fees or payment of expenses which are a Fund’s obligation are subject to reimbursement by the Fund to the Adviser for a period of thirty-six months following the end of the month in which such reduction or payment was accrued, if so requested by the Adviser, 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 in effect both at the time of the reduction and payment and at the time of reimbursement. Such reimbursement may not be paid prior to a Fund’s payment of current ordinary operating expenses.
(d)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.
6.LIABILITY; STANDARD OF CARE
(a)The Adviser shall have responsibility for the accuracy and completeness (and liability for the lack thereof) of any information with respect to the Adviser, its personnel or a Fund’s strategies providing in writing to the Trust for inclusion in the Fund’s offering materials (including the Prospectus and advertising and sales materials).
(b)The Adviser shall act at all times in the best interests of each Fund and shall discharge its duties with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of a similar enterprise. The Adviser shall not be liable to the Trust, a Fund, or a Fund’s shareholders for any action or inaction of the Adviser relating to any event whatsoever in the absence of bad faith, willful misfeasance or negligence in the performance of or the reckless disregard of the Adviser’s duties or obligations under this Agreement. 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, a Fund or any shareholder of the Fund may have under federal securities laws or state laws.
(c)In no event shall the Adviser 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 Adviser’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 Adviser, its affiliated persons, agents and employees, shall not be liable to the Trust or a Fund for failure to act or any action taken in good faith reliance upon:
(i)The Fund’s directions to the Custodian, or brokers, dealers or others with respect to the making, retention or sale of any investment or reinvestment hereunder; or
(ii)Acts or omissions of the Custodian or a Fund, their respective affiliated persons, agents or employees.
(e)No party to this Agreement shall be liable to another party for consequential damages under any provision of this Agreement.
(f)The Adviser shall not be deemed by virtue of this Agreement to have made any representation or warranty that any level of investment performance or level of investment results will be achieved.
(g)Except as otherwise provided in this Agreement, each party to this Agreement (as an “Indemnifying Party”) shall indemnify and hold harmless the other party and the shareholders, directors, officers, and employees of the other parties (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 expense and reasonable counsel fees incurred in connection therewith) arising out of the Indemnifying Party’s performance or non-performance of any duties under this Agreement, provided, however, that indemnification shall not be paid hereunder with respect to any matter to the extent to which the loss, liability, claim, damage, or expense was caused by the Indemnified Party’s willful misfeasance, bad faith, or negligence in the performance of duties hereunder or reckless disregard of obligations and duties under this Agreement, and provided further, however, that the Adviser shall only be required to indemnify and hold harmless an Indemnified Party to the extent the loss, liability, claim, damage, or expense of such Indemnified Party was attributable to the Adviser’s willful misfeasance, bad faith, or negligence in the performance of duties hereunder or reckless disregard of the Adviser’s obligations or duties hereunder.
(h)If indemnification is to be sought hereunder, then the Indemnified Party shall promptly notify the Indemnifying Party of the assertion of any claim or the commencement of any action or proceeding in respect thereof and will keep the Indemnifying Party advised with respect to all developments concerning such claim, action or proceeding; provided, however, that the failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may otherwise have to the Indemnified Party provided such failure shall not affect in a material adverse manner the position of the Indemnifying Party or the Indemnified Party with respect to such claim. Following such notification, the Indemnifying Party may elect in writing to assume the defense of such action or proceeding and, upon such election, it shall not be liable for any legal costs incurred by the Indemnified Party (other than reasonable costs of investigation previously incurred) in connection therewith, unless (i) the Indemnifying Party has failed to provide counsel reasonably satisfactory to the Indemnified Party in a timely manner or (ii) counsel which has been provided by the Indemnifying Party reasonably determines that its representation of the Indemnified Party would present it with a conflict of interest. Notwithstanding the foregoing, the Indemnified Party shall be entitled to employ separate counsel at its own expense and, in such event, the Indemnified Party may participate in such defense as it deems necessary. The Indemnified Party shall in no case confess any claim or make any compromise in any case in which the Indemnifying Party may be required to indemnify it except with the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed; notwithstanding this Section 6 hereof, in the event the Indemnified Party has not secured such consent, the Indemnifying Party will have no obligation to indemnify the Indemnified Party. Upon request and at the Indemnifying Party’s expense, the Indemnified Party shall provide reasonable assistance to the Indemnifying Party so that the Indemnifying Party can defend against such claim, action or proceeding.
(i)The provisions of Sections 6(g) and (h) shall not apply in any action where the Indemnified Party is the party adverse, or one of the parties adverse, to the other party.
7. | TERM AND TERMINATION OF THIS AGREEMENT; NO ASSIGNMENT |
(a)This Agreement shall become effective with respect to a Fund immediately upon the latter of approval by a majority of the Trust’s Trustees who are not interested persons (as defined in the 1940 Act) and, if required by applicable law, by a vote of a majority of the outstanding voting securities of a Fund. The Agreement shall, unless terminated as hereinafter provided, continue in effect for a period of two (2) years from the date of effectiveness with respect to a Fund. This Agreement shall continue in effect thereafter for additional periods not exceeding one (1) year so long as such continuation is approved for a Fund at least annually by (i) the Board or by the vote of a majority of the outstanding voting securities of the 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 1940 Act.
(b)This Agreement may be terminated by the Trust on behalf of a Fund at any time without payment of any penalty, by the Board, 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 the Fund. In the event of a termination, the Adviser shall cooperate in the orderly transfer of a Fund’s affairs and, at the request of the Board, transfer any and all books and records of the Fund maintained by the Adviser on behalf of the Fund.
(c)This Agreement shall terminate automatically in the event of any transfer or assignment thereof, as defined in the 1940 Act.
8.SERVICES NOT EXCLUSIVE
The services of the Adviser to a Fund are not to be deemed exclusive and it shall be free to render similar services to others so long as its services hereunder are not impaired thereby. It is specifically understood that directors, officers and employees of the Adviser and of its subsidiaries and affiliated persons may continue to engage in providing portfolio management services and advice to other investment advisory clients. The Trust agrees that Adviser may give advice and take action in the performance of its duties with respect to any of its other clients which may differ from advice given or the timing or nature of action taken with respect to a Fund. Nothing in this Agreement shall be deemed to require Adviser, its principals, affiliated persons, agents or employees to purchase or sell for any Fund any security which it or they may purchase or sell for its or their own account or for the account of any other client.
9.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 affiliated persons 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 1940 Act. The Adviser agrees that neither it nor any of its officers or employees shall borrow from a Fund or pledge or use the Fund’s assets in connection with any borrowing not directly for the Fund’s benefit.
10.AMENDMENT
No provision of this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by all parties and approved by the Trust in the manner set forth in Section 7(a).
11.CONFIDENTIALITY
(a)“Confidential Information” as used in this agreement shall mean and include all tangible and intangible information and materials being disclosed in connection with this Agreement by one of the Parties (“Disclosing Party”) to the other Party (“Receiving Party”), in any form or medium (and without regard to whether the information is owned by a Party or by a third party), that satisfy at least one of the following criteria:
(i)Information related to the Disclosing Party’s, its affiliated persons’ or its third party licensors or vendors’ trade secrets, customers/shareholders, business plans, strategies, forecasts or forecast assumptions, operations, methods of doing business, records, finances, assets, intellectual property rights, technology, software, systems data or other proprietary or confidential business or technical information;
(ii)Information designated as confidential in writing by the Disclosing Party or information that the Receiving Party should reasonably know to be information that is of a confidential or proprietary nature;
(iii)any information derived from, or developed by reference to or use of, any information described in the preceding clauses (i) and (ii); or
(iv)Shareholder Records (as defined below);
provided, however, that notwithstanding the foregoing, the following shall not be considered Confidential Information: (A) information that is disclosed to the Receiving Party by a third person who has a right to make such disclosure without any obligation of confidentiality; (B) information that is or becomes publicly known without violation of this Agreement by the Receiving Party; or (C) information that is independently developed by the Receiving Party or its employees or affiliated persons without reference to the Disclosing Party’s information.
(b)Except as expressly provided otherwise herein, each Party shall, during the term of this Agreement: (i) use a level of care no less rigorous than that taken to protect its own Confidential Information of a similar nature (but in no event less than a reasonable level of care) to keep confidential, and to prevent any unauthorized disclosure of, any Confidential Information of the other Party, (ii) use such Confidential Information only in connection with this Agreement, (iii) not make any commercial use of such Confidential Information for the benefit of itself or any third party beyond the scope of this Agreement, and (iv) except where required by law, order, or demand of any governmental or regulatory authority or as permitted by this Agreement, not make any such Confidential Information, or parts thereof, available to any third party. If either Party receives a request or demand from a third party to inspect any documents or other hard or electronic materials containing Confidential Information, the Party receiving such a request or demand will endeavor to notify the other Party and to secure instructions from that Party or an authorized person of that Party.
(c)Each Party shall reproduce the other Party’s Confidential Information only to the extent necessary to permit it to meet its obligations under this Agreement, and shall notify the other Party promptly if the other Party’s Confidential Information is disclosed in violation of the provisions of this Agreement or is otherwise lost or unaccounted for. Adviser shall have the right, however, to disclose such Confidential Information to its affiliated persons’, respective employees, officers, directors, advisers, attorneys, consultants, vendors and third party service providers who have a need to know such information in connection with Adviser’s performance of its obligations under this Agreement.
(d)The Adviser acknowledges that certain information regarding the Trust’s shareholders made available by the Trust to Adviser or otherwise maintained by Adviser under this Agreement (“Shareholder Information”) may be deemed nonpublic personal information under the Gramm-Leach-Bliley Act, Regulations S-P, and other applicable privacy Laws (collectively, “Privacy Laws”). Adviser agrees: (i) not to disclose or use such information except as required to carry out its duties under the Agreement or as otherwise permitted by law in the ordinary course of business; (ii) to establish and maintain reasonable physical, electronic and procedural safeguards to protect such information; and (iii) to cooperate with Trust and provide reasonable assistance in ensuring compliance with such Privacy Laws with respect to accountholders to the extent applicable to either or both of the parties.
12.USE OF ADVISER’S NAME
Adviser hereby consents to the royalty-free use by a Fund of the name Tortoise Capital Advisors, L.L.C. as part of the Fund’s name or any reasonable derivation thereof (the “Name”) and consents to the royalty-free use of the related Tortoise Capital Advisors, L.L.C. logo and any such marks or symbols which may arise hereafter (the “Mark”) during the term of this Agreement. The Trust acknowledges that any rights in or to the Name or the Mark are, and under any and all circumstances shall continue to be, the sole property of the Adviser. The Adviser shall have the right to resolve any concerns regarding copyright, trademark or patent infringement with respect to a Fund’s use of the Name or the Mark as the Adviser shall so determine.
It is understood and hereby agreed that the name “Managed Portfolio Series” or “MPS” is the property of the Trust for copyrights and all other purposes. The Adviser undertakes and agrees that, in the event that the Adviser shall cease to act as investment adviser to a Fund, the Adviser shall promptly take all necessary and appropriate action to discontinue the use of the Trust’s name and will further refrain from using the Trust’s name; provided, however, that the Adviser may continue to use the Trust’s name for the sole purpose of identifying the Trust as an account formerly managed by the Adviser or as otherwise consented to by the Trust in writing prior to such use.
It is additionally understood and hereby agreed that the name of each Fund set forth in Schedule A or any reasonable derivation of the same, is the property of the Adviser for copyright and all other purposes. The Name and the Mark may be used from time to time in other connections and for other purposes by the Adviser, and its affiliated persons and including with respect to other investment companies that have obtained consent to use of the Name or the Mark. The Trust understands and agrees that, in the event that the Adviser shall cease to act as investment adviser to a Fund, the Trust shall promptly take all necessary and appropriate action to discontinue use of the Name and the Mark and will further refrain from using the Name and the Mark; provided, however, that the Trust may continue to use the Name and the Mark for the sole purpose of identifying the Trust as an account formerly managed by the Adviser or as otherwise consented to by the Adviser in writing prior to such use.
13.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 cooperate with the Trust in connection with the Trust’s compliance with the Trust’s Anti-Money Laundering Policy and the AML Laws by providing the Trust and/or each Fund’s administrator such reports, certifications and contractual assurances as may be reasonably requested upon reasonable notice by the Trust in order for the Trust and each Fund’s administrator to fulfill its obligations under the AML Laws provided that nothing herein shall impose any obligation on the Adviser to provide any reports, certifications or assurances with respect to the beneficial owners of 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.
14.CERTIFICATIONS; DISCLOSURE CONTROLS AND PROCEDURES
The Adviser acknowledges that, in compliance with the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), and the implementing regulations promulgated thereunder, the Trust and each Fund are 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 commercially reasonable efforts to assist the Trust and each Fund in complying with the Sarbanes-Oxley Act and implementing the Trust’s disclosure controls and procedures. The Adviser agrees to inform the Trust of any material development related to the services it provides to a Fund that the Adviser reasonably believes is relevant to the Fund’s certification obligations under the Sarbanes-Oxley Act.
15.NOTIFICATION
The Adviser agrees that it will provide prompt notice to the Trust about material changes in the employment status of key investment management personnel involved in the management of a Fund, material changes in the investment process used to manage the Fund and any changes in senior management, operations or ownership of the Adviser.
16.NOTICES
Notices and other communications required or permitted under this Agreement shall be in writing, shall be deemed to be effectively delivered when actually received, and may be delivered by U.S. mail (first class, postage prepaid), by facsimile transmission, by hand or by commercial overnight delivery service, addressed as follows:
| ADVISER:
| Tortoise Capital Advisors, L.L.C.
11550 Ash Street, Suite 100
Leawood, KS 66211
Attn: Chief Compliance Officer
|
| | |
| FUND: | Managed Portfolio Serieson behalf of the [Fund]
777 East Wisconsin Avenue, 10th Floor
Milwaukee, WI 53202
Attn: Trust President
|
17.GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware 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 1940 Act and the Advisers Act and any rules and regulations promulgated thereunder.
18.ASSIGNMENT
This Agreement may not be assigned by any party, either in whole or in part, without the prior written consent of each other party.
19.SUB-ADVISERS
At its own expense, the Adviser may carry out any of its obligations to the Trust and a Fund under this Agreement by employing, subject to the direction and control of the Board, one or more persons who are registered as investment advisers pursuant to the Advisers Act (“Sub-Adviser”). Each Sub-Adviser’s employment to provide investment advisory services to a Fund will be evidenced by a separate written agreement between the Adviser and the Sub-Adviser approved by the Board and, if required by applicable law, by the shareholders of the Fund. The Adviser shall supervise and monitor the activities of each Sub-Adviser. The Adviser shall not be liable hereunder for any act or inaction of any Sub-Adviser except for the Sub-Adviser’s bad faith, willful misfeasance or negligence in the performance of or the reckless disregard of the Sub-Adviser’s duties or obligations under its sub-advisory agreement with the Adviser. In addition, the Adviser shall be liable: (1) for its failure to exercise good faith in the employment of the Sub-Adviser; (2) for the Adviser’s failure to exercise appropriate supervision of the Sub-Adviser; and (3) as may be agreed by the Trust and the Adviser in writing.
20.LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees and officers of the Trust and the shareholders of a Fund shall not be personally liable for any obligations of the Trust or of any Fund under this Agreement, and the Adviser agrees that in asserting any rights or claims under this Agreement, it shall look only to the assets and property of the Fund to which the Adviser’s rights or claims relate in settlement of such rights or claims, and not to the Trustees of the Trust or the shareholders of any Fund.
21.MISCELLANEOUS
(a)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.
(b)This Agreement may be executed by the parties hereto on a number of counterparts taken together shall be deemed to constitute one and the same instrument.
(c)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.
(d)The term “affiliated person” shall have the meaning ascribed thereto by the 1940 Act.
(e)Sections 2(d), 2(h), 2(i), 6, 11, 12, 13, 14, 17, 20 and 21 shall survive termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day first set forth above.
MANAGED PORTFOLIO SERIES
on behalf of the series listed on Schedule A
By: ______________________________________
Name:
Title:
|
|
TORTOISE CAPITAL ADVISORS, L.L.C.
By: ______________________________________
Name:
Title:
|
SCHEDULE A
FUNDS AND FEES
Series of Managed Portfolio Series
| Annual Fee Rate as % of
Current Net Assets
|
| | |
Tortoise MLP & Pipeline Fund | | 0.85% |
Tortoise Select Opportunity Fund | | 0.85% |
Tortoise VIP MLP & Pipeline Portfolio | | 0.85% |
| | |
| | |
EXHIBIT B
MANAGED PORTFOLIO SERIES
INVESTMENT ADVISORY AGREEMENT
This AGREEMENT is made as of the [___] day of [______] 2018, by and between Managed Portfolio Series, a Delaware statutory trust (the “Trust”) and Tortoise Credit Strategies, LLC a Delaware limited liability company (the “Adviser”).
WHEREAS, the Adviser is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and engages in the business of providing investment management services; and
WHEREAS, the Trust is registered with the U.S. Securities and Exchange Commission (the “SEC”) as an open-end investment company under the Investment Company Act of 1940, as amended (the “1940 Act”) and consists of several separate series of shares, each having separate assets and liabilities, its own investment objectives and policies, and which is authorized to create additional series in the future; and
WHEREAS, the Trust desires to retain the Adviser to provide investment advisory services to those Trust series listed in Schedule A (each a “Fund”) on or after the date of this Agreement and the Adviser is willing to render such services, subject to supervision and direction of the Trust’s Board of Trustees (the “Board”) and the terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
The Trust hereby appoints, and the Adviser hereby accepts the appointment, to act as investment adviser to each Fund, subject to the supervision and direction of the Board, on the terms herein set forth and for the compensation herein provided. In connection with this appointment:
(a)Delivery of Trust Documentation. The Trust shall deliver to the Adviser copies of: (i) the Trust’s Agreement and Declaration of Trust and Bylaws, as may be amended from time to time (collectively, “Organic Documents”); (ii) each Fund’s prospectus and statement of additional information as may be amended from time to time (collectively, as currently in effect (“Prospectuses”)); and (iii) all Trust policies and procedures relevant to a Fund as may be amended from time to time (collectively, “Trust Procedures”). The Trust shall cause all service providers to the Trust to furnish information to the Adviser and to assist the Adviser as may be reasonably required and shall ensure that the Adviser has reasonable access to all relevant records and documents maintained by the Trust or any service provider to the Trust.
(b)Independent Contractor. The Adviser shall for all purposes herein be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized, have no authority to act for or be deemed an agent of a Fund.
| (c) | The Adviser’s Representations. The Adviser represents, warrants and agrees that:
|
(i)It has all requisite power and authority to enter into and perform its obligations under this Agreement, and has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement;
(ii)It is registered as an investment adviser under the Advisers Act and will continue to be so registered during the term of this Agreement;
(iii)It has adopted and implemented a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act (the “Code of Ethics”) and, if it has not already done so, will provide the Trust with a copy of such Code of Ethics and any amendments thereto;
(iv)It has adopted and implemented written policies and procedures, as required by Rule 206(4)-7 under the Advisers Act, which are reasonably designed to prevent violations of federal securities laws by the Adviser, its employees, officers, and agents (“Compliance Procedures”) and, if it has not already done so, will provide the Trust with a copy of the Compliance Procedures and any amendments thereto;
(v)It has delivered to the Trust copies of its Form ADV as most recently filed with the SEC and will provide the Trust with a copy of any future filings of Form ADV or any amendments thereto;
(vi)It is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement and will promptly notify the Trust of the occurrence of any event that would disqualify the Adviser from serving as an investment adviser to a Fund pursuant to Section 9(a) of the 1940 Act or other applicable law, rule or regulation;
(vii)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 by the Adviser in order to perform its services contemplated by this Agreement; and
(viii)This Agreement, when executed and delivered, will constitute a legal, valid and binding obligation of the Adviser, enforceable against the Adviser 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.
| (d) | The Trust’s Representations(d)The Trust’s Representations. The Trust represents, warrants and agrees that:. The Trust represents, warrants and agrees that:
|
(i)This Agreement has been duly authorized by appropriate action of the Trust and its shareholders to the extent required under the 1940 Act;
(ii)It has received a copy of Part 2A of the Adviser’s Form ADV as is currently in effect as of the date of this Agreement; and
(iii)This Agreement, when executed and delivered, will constitute a legal, valid and binding obligation of the Trust, enforceable against the Trust 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
(e)Plenary authority of the Board of Trustees.The Adviser acknowledges that each Fund is a mutual fund that operates as a series of the Trust under the supervision and direction of the Board.
| 2. | PROVISION OF INVESTMENT ADVISORY SERVICES |
2.PROVISION OF INVESTMENT ADVISORY SERVICES
Subject to the delegation of any of the following duties to one or more persons permitted by Section 19 of this Agreement, the Adviser shall render the following services to the Trust:
(a)The Adviser shall assume all investment duties and have full discretionary power and authority with respect to investment of the assets of each Fund. Without limiting the generality of the foregoing, the Adviser shall, with respect to the assets of each Fund: (i) obtain and evaluate such information and advice relating to the economy, securities markets and securities as it deems necessary or useful to discharge its duties hereunder; (ii) continuously invest the assets in a manner consistent with the Organic Documents, Prospectuses, other written guidelines or restrictions, as may be amended from time to time, agreed upon in writing by the Trust and the Adviser which guidelines and restrictions shall not be inconsistent with the Prospectuses (“Written Guidelines”), and the Trust Procedures, as may be provided to the Adviser consistent with Section 1(a)(i) of this Agreement; (iii) determine the securities to be purchased, sold or otherwise disposed of and the timing of such purchases, sales and dispositions; (iv) vote all proxies for securities and exercise all other voting rights with respect to such securities in accordance with the Adviser’s written proxy voting policies and procedures; (v) maintain the books and records required to be maintained by the Fund under the 1940 Act with respect to portfolio transactions affected pursuant to this Agreement; (vi) promptly issue settlement instructions to custodians designated by the Trust; (vii) evaluate the credit worthiness of securities dealers, banks and other entities with which the Fund may engage in repurchase agreements and monitor the status of such agreements; and (viii) take such further action, including the placing of purchase and sale orders and the selection of broker- dealersbroker-dealers to execute such orders on behalf of the Fund, as the Adviser shall deem necessary or appropriate, in its sole discretion, to carry out its duties under this Agreement.
(b)The Adviser shall also furnish to or place at the disposal of the Trust such information, evaluations, analyses and opinions formulated or obtained by the Adviser in the discharge of its duties, as the Trust may, from time to time, reasonably request.
(c)The Adviser agrees, that in performing its duties hereunder, it will comply, in all material respects, with (i) the 1940 Act, the Advisers Act and all rules and regulations promulgated thereunder; (ii) all other federal and state laws and regulations applicable to the Adviser; (iii) applicable provisions of the Internal Revenue Code of 1986, as amended; and (iv) the provisions of the Organic Documents.
(d)The Adviser shall keep accurate and detailed records concerning its services under this Agreement and all such records shall be open to inspection at all reasonable times by the Trust and any appropriate regulatory authorities. The Adviser shall provide to the Trust copies of any and all documentation relating to each Fund’s transactions upon reasonable request. The Adviser agrees that all records which it maintains for each Fund are the property of the Fund and it further agrees to surrender promptly to the Fund copies of any such records upon the Fund’s request, provided that the Adviser shall be entitled to keep copies of any such records.
(e)At the request of the Trust from time to time, the Adviser shall provide pricing and valuation information with respect to particular securities it has purchased for each Fund if the
Trust has determined that such pricing and valuation information is not otherwise reasonably available to it through standard pricing services. In the event that the Adviser believes a valuation provided by a pricing service for a security it has purchased for a Fund is materially inaccurate, the Adviser agrees to promptly notify the Trust.
(f)From time to time at the request of the Trust, the Adviser will (i) meet, either in person or via teleconference, with such other persons as the Trust may designate, including the Board, on reasonable notice and at reasonable times and locations, to discuss general economic conditions, performance, investment strategy and other matters relating to each Fund; and/or (ii) provide written materials to the Trust , including the Board, on reasonable notice, discussing general economic conditions, performance, investment strategy and other matters relating to each Fund.
(g)The Adviser shall be responsible for filing any required reports on its behalf with the SEC pursuant to Section 13(f) of the Securities Exchange Act of 1934 (the “1934 Act”) and the rules and regulations thereunder.
(h)To the extent reasonably requested by the Trust, the Adviser will use its best efforts to assist the Trust in connection with the Trust’s compliance with the Federal securities laws, as such term is defined in Rule 38a-1 under the 1940 Act, (“Federal Securities Laws”), including, without limitation, providing the Chief Compliance Officer of the Trust with: (i) Compliance Procedures, as may be amended from time to time (including prompt notice of any material changes thereto); (ii) a summary of the Compliance Procedures in connection with the annual review thereof by the Trust; (iii) upon request, a certificate of the chief compliance officer of the Adviser to the effect that the policies and procedures of the Adviser are reasonably designed to prevent violation of the Federal Securities Laws; (iv) direct access to the Adviser’s chief compliance officer, as reasonably requested by the Chief Compliance Officer of the Trust; (v) a completed quarterly informational questionnaire regarding the Adviser’s compliance program; and (vi) quarterly certifications indicating whether there were Material Compliance Matters (as that term is defined by Rule 38a-1) that arose under the compliance policies and procedures of the Trust and/or Compliance Procedures in such detail as may be reasonably requested by the Chief Compliance Officer of the Trust.
(i)Except as permitted by the Trust Procedures, the Adviser will not disclose but shall treat confidentially all information in respect of the investments of each Fund, including, without limitation, the identification and market value or other pricing information of any and all portfolio securities or other financial instruments held by the Fund, and any and all trades of portfolio securities or other transactions effected for the Fund (including past, pending and proposed trades).
(j)The Trust or its agent will provide timely information to the Adviser regarding such matters as inflows to and outflows from each Fund and the cash requirements of, and cash available for investment in each Fund. The Trust or each Fund’s custodian (the “Custodian”) will timely provide the Adviser with copies of monthly accounting statements for each Fund, and such other information as may be reasonably necessary or appropriate in order for the Adviser to perform its responsibilities hereunder.
(k)The Adviser shall not consult with any other investment adviser (other than affiliated persons of the Adviser) of any other series of the Trust concerning portfolio transactions for a Fund or any other series of the Trust.
(l)The Adviser shall maintain errors and omissions insurance in an amount at least equal to that disclosed to the Board in connection with the approval of this Agreement pursuant to Section 7 of this Agreement.
3.BROKERAGE
The Adviser is responsible for decisions to buy and sell securities for each Fund, for broker-dealer selection, and for negotiation of brokerage commission rates, provided that the Adviser shall not direct an order to an affiliated person of the Adviser without general prior authorization to use such affiliated broker or dealer from the Trust’s Chief Compliance Officer. The Adviser’s primary consideration in effecting a securities transaction will be to seek best execution. In selecting broker-dealers to execute transactions, the Adviser may take the following, among other things, into consideration: the best net price available; the reliability, integrity and financial condition of the broker-dealer; the size of and the difficulty in executing the order; and the value of the expected contribution of the broker-dealer to the investment performance of a Fund on a continuing basis. The execution price of a transaction may be less favorable than that available from another broker-dealer if the difference is reasonably justified by other aspects of the execution services offered.
Subject to such policies as the Board may determine and consistent with Section 28(e) of the 1934 Act, 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 a 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 a Fund and to other clients of the Adviser as to which the Adviser exercises investment discretion. Subject to the same policies and legal provisions, the Adviser is further authorized to allocate the orders placed by it on behalf of a Fund to such brokers or dealers who also provide research or statistical material, or other services to the Trust, the Adviser or any affiliated person 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 a 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, the allocation of the securities so purchased or sold, as well as the expense incurred in the transaction, will be made by the Adviser in the manner it considers to be equitable and consistent with its fiduciary obligations to a Fund and to such other clients.
The Trust authorizes and empowers the Adviser to open and maintain trading accounts in the name of a Fund and to execute for the Fund as its agent and attorney-in-fact standard institutional customer agreements with such broker or brokers as the Adviser shall select as provided herein. The
Adviser shall cause all securities and other property purchased or sold for a Fund to be settled at the place of business of the Custodian or as the Custodian shall direct. All securities and other property of a Fund shall remain in the direct or indirect custody of the Custodian except as otherwise authorized by the Board.
The Adviser further shall have the authority to instruct the Custodian to pay cash for securities and other properlyproperty delivered to the Custodian for a Fund and deliver securities and other property against payment for the Fund, and such other authority granted by the Trust from time to time. The Adviser shall not have authority to cause the Custodian to deliver securities and other property or pay cash to the Adviser except as expressly provided herein.
4.ALLOCATION OF EXPENSES
(a)With respect to the operation of a Fund, the Adviser shall be responsible for (i) the Fund’s organizational expenses; (ii) providing the personnel, office space and equipment reasonably necessary to perform its obligations hereunder; (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 l 2b1l12b-1 under the 1940 Act (each, a “12b- 1“12b-1 Plan”); (iv) the costs of any special Board meetings or shareholder meetings convened for the primary benefit of, and requested by, the Adviser; and (v) any costs of liquidating or reorganizing the Fund if the liquidation or reorganization is made at the request of the Adviser (unless such cost is otherwise allocated by the Board). If the Adviser has agreed to limit the operating expenses of a Fund, the Adviser also shall be responsible on a monthly basis for any operating expenses that exceed the agreed upon expense limit, subject to the terms of such agreement.
(b)A Fund is responsible for and has assumed the obligation for payment of its expenses, other than as stated in Section 4(a) above, including but not limited to: fees and expenses (including legal fees) incurred in connection with the issuance, registration (and maintenance of registration) and transfer of its shares; commissions, spreads, fees and other expenses connected with the acquisition, holding, disposition of securities and other investments including placement and similar fees in connection with direct placements entered into on behalf of the Fund; 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; all expenses incurred in connection with borrowings; dividend expenses related to short sales; costs and expenses of pricing and calculating its daily net asset value and of maintaining its books of account required under the 1940 Act; taxes, if any; its portion of expenditures in connection with meetings of the Board that are properly payable by the Fund; its allocable portion of expenditures in connection with meetings of shareholders as determined by the Board; its allocable portion of salaries and expenses of officers of the Trust other than officers and employees of U.S. Bancorp Fund Services, LLC or any duly appointed successor (the “Administrator”) (except the Trust’s Chief Compliance Officer if determined to be appropriate by the Board); its allocable portion of fees and expenses of members of the Board or members of any advisory board or committee who are not members, affiliated persons, or interested persons of the Adviser or the Administrator; its allocable portion of the Trust’s 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 of the Fund or other communications for distribution to existing shareholders; its allocable portion of the Trust’s legal, auditing and accounting fees; its allocable portion of the
Trust’s trade association dues or educational program expenses determined appropriate by the Board; all expenses of maintaining and servicing shareholder accounts of the Fund maintained with the Trust’s transfer agent, including all charges for transfer, shareholder recordkeeping, distribution disbursing, redemption; and all other charges and costs of its operation plus any extraordinary and non-recurring expenses including litigation, proceedings, claims and indemnification obligations to its directors, officers, service providers and shareholders, except as herein otherwise prescribed.
| (c) | The Adviser may voluntarily or contractually absorb certain Fund expenses. |
(c)The Adviser may voluntarily or contractually absorb certain Fund expenses.
(d)To the extent the Adviser incurs any costs by assuming expenses which are an obligation of a 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 a 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)To the extent that the Adviser pays fees in addition to any Fund distribution or servicing fees to financial intermediaries, including without limitation banks, broker-dealers, financial advisors, 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, the Adviser shall report such payments regularly to the Trust on the amounts paid and the relevant financial institutions.
(f)The fee payable to the Adviser under this Agreement with respect to a Fund may be reduced to the extent of any receivable owed by the Adviser to the Fund (provided that such obligation is not subject to a good faith dispute) or as required under any operating expense limitation agreement applicable to the Fund.
| 5. | INVESTMENT ADVISORY FEES
|
5. INVESTMENT ADVISORY FEES
(a)For all of the services rendered with respect to a Fund as herein provided, the Trust shall pay to the Adviser a fee at an annual rate based on the Current Net Assets (as defined below) of the Fund as set forth in Schedule A attached hereto and made a part hereof. Such fee shall be accrued by a Fund daily and shall be payable monthly in arrears, within fifteen business days after the last day of each month. If fees begin to accrue with respect to a Fund during the middle of a month, all fees for the period from that date to the end of the month shall be prorated according to the proportion that the period bears to the full month. In the case of termination of this Agreement with respect to a Fund during any month, all fees accrued from the beginning of that month to, but excluding, the date of termination, shall be prorated according to that proportion that the period bears to the full month and shall be paid promptly following such termination. For purposes of computing the amount of advisory fee accrued for any day, “Current Net Assets” shall mean a Fund’s net assets as of the most recent preceding day for which the Fund’s net assets were computed.
(b)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 a 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.
(c)Any such reductions made by the Adviser in its management fees andor payment of expenses which are a Fund’s obligation are subject to reimbursement by the Fund to the Adviser for a period of thirty-six months following the end of the month in which such reduction or payment was accrued, if so requested by the Adviser, if the aggregate amount actually paid by the Fund toward the operating expenses for such fiscal yearmonth (taking into account the reimbursement) does not exceed the applicable limitation on Fund expenses in effect at both at the time of the reduction and payment and at the time of reimbursement. Such reimbursement may not be paid prior to a Fund’s payment of current ordinary operating expenses.
(d)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.
| 6. | 6. LIABILITY; STANDARD OF CARE |
(a)The Adviser shall have responsibility for the accuracy and completeness (and liability for the lack thereof) of any information with respect to the Adviser, its personnel or a Fund’s strategies providing in writing to the Trust for inclusion in the Fund’s offering materials (including the Prospectus and advertising and sales materials).
(b)The Adviser shall act at all times in the best interests of each Fund and shall discharge its duties with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of a similar enterprise. The Adviser shall not be liable to the Trust, a Fund, or a Fund’s shareholders for any action or inaction of the Adviser relating to any event whatsoever in the absence of bad faith, willful misfeasance or negligence in the performance of or the reckless disregard of the Adviser’s duties or obligations under this Agreement. 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, a Fund or any shareholder of the Fund may have under federal securities laws or state laws.
(c)In no event shall the Adviser 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 Adviser’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 Adviser, its affiliated persons, agents and employees, shall not be liable to the Trust or a Fund for failure to act or any action taken in good faith reliance upon:
(i)The Fund’s directions to the Custodian, or brokers, dealers or others with respect to the making, retention or sale of any investment or reinvestment hereunder; or
(ii)Acts or omissions of the Custodian or a Fund, their respective affiliated persons, agents or employees.
(e)No party to this Agreement shall be liable to another party for consequential damages under any provision of this Agreement.
(f) The Adviser shall not be deemed by virtue of this Agreement to have made any representation or warranty that any level of investment performance or level of investment results will be achieved.
(g)Except as otherwise provided in this Agreement, each party to this Agreement (as an “Indemnifying Party”) shall indemnify and hold harmless the other party and the shareholders, members, directors, officers, and employees of the other parties (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 expense and reasonable counsel fees incurred in connection therewith) arising out of the Indemnifying Party’s performance or non-performance of any duties under this Agreement, provided, however, that indemnification shall not be paid hereunder with respect to any matter to the extent to which the loss, liability, claim, damage, or expense was caused by the Indemnified Party’s willful misfeasance, bad faith, or negligence in the performance of duties hereunder or reckless disregard of obligations and duties under this Agreement, and provided further, however, that the Adviser shall only be required to indemnify and hold harmless an Indemnified Party to the extent the loss, liability, claim, damage, or expense of such Indemnified Party was attributable to the Adviser’s willful misfeasance, bad faith, or negligence in the performance of duties hereunder or reckless disregard of the Adviser’s obligations or duties hereunder.
(h)If indemnification is to be sought hereunder, then the Indemnified Party shall promptly notify the Indemnifying Party of the assertion of any claim or the commencement of any action or proceeding in respect thereof and will keep the Indemnifying Party advised with respect to all developments concerning such claim, action or proceeding; provided, however, that the failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may otherwise have to the Indemnified Party provided such failure shall not affect in a material adverse manner the position of the Indemnifying Party or the Indemnified Party with respect to such claim. Following such notification, the Indemnifying Party may elect in writing to assume the defense of such action or proceeding and, upon such election, it shall not be liable for any legal costs incurred by the Indemnified Party (other than reasonable costs of investigation previously incurred) in connection therewith, unless (i) the Indemnifying Party has failed to provide counsel reasonably satisfactory to the Indemnified Party in a timely manner or (ii) counsel which has been provided by the Indemnifying Party reasonably determines that its representation of the Indemnified Party would present it with a conflict of interest. Notwithstanding the foregoing, the Indemnified Party shall be entitled to employ separate counsel at its own expense and, in such event, the Indemnified Party may participate in such defense as it deems necessary. The Indemnified Party shall in no case confess any claim or make any compromise in any case in which the Indemnifying Party may be required to indemnify it except with the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed; notwithstanding this Section 6 hereof, in the event the Indemnified Party has not secured such consent, the Indemnifying Party will have no obligation to indemnify the Indemnified Party. Upon request and at the Indemnifying Party’s expense, the Indemnified Party shall provide reasonable assistance to the Indemnifying Party so that the Indemnifying Party can defend against such claim, action or proceeding.
(i)The provisions of Sections 6(g) and (h) shall not apply in any action where the Indemnified Party is the party adverse, or one of the parties adverse, to the other party.
| 7. | 7. TERM AND TERMINATION OF THIS AGREEMENT; NO ASSIGNMENT |
(a)This Agreement shall become effective with respect to a Fund immediately upon the latter of approval by a majority of the Trust’s Trustees who are not interested persons (as defined in the 1940 Act) and, if required by applicable law, by a vote of a majority of the outstanding voting securities of a Fund. The Agreement shall, unless terminated as hereinafter provided, continue in effect for a period of two (2) years from the date of effectiveness with respect to a Fund. This Agreement shall continue in effect thereafter for additional periods not exceeding one (1) year so long as such continuation is approved for a Fund at least annually by (i) the Board or by the vote of a majority of the outstanding voting securities of the 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 1940 Act.
(b)This Agreement may be terminated by the Trust on behalf of a Fund at any time without payment of any penalty, by the Board, 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 the Fund. In the event of a termination, the Adviser shall cooperate in the orderly transfer of a Fund’s affairs and, at the request of the Board, transfer any and all books and records of the Fund maintained by the Adviser on behalf of the Fund.
(c)This Agreement shall terminate automatically in the event of any transfer or assignment thereof, as defined in the 1940 Act.
| 8. | 8. SERVICES NOT EXCLUSIVE |
The services of the Adviser to a Fund are not to be deemed exclusive and it shall be free to render similar services to others so long as its services hereunder are not impaired thereby. It is specifically understood that directors, officers and employees of the Adviser and of its subsidiaries and affiliated persons may continue to engage in providing portfolio management services and advice to other investment advisory clients. The Trust agrees that Adviser may give advice and take action in the performance of its duties with respect to any of its other clients which may differ from advice given or the timing or nature of action taken with respect to a Fund. Nothing in this Agreement shall be deemed to require Adviser, its principals, affiliated persons, agents or employees to purchase or sell for any Fund any security which it or they may purchase or sell for its or their own account or for the account of any other client.
| 9. | NO SHORTING; NO BORROWING |
9. 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 affiliated persons 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 1940 Act. The Adviser agrees that neither it nor any of its officers or employees shall borrow from a Fund or pledge or use the Fund’s assets in connection with any borrowing not directly for the Fund’s benefit.
10. AMENDMENTNo provision of this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by all parties and approved by the Trust in the manner set forth in Section 7(a).
It is additionally understood and hereby agreed that the name of each Fund set forth in Schedule A or any reasonable derivation of the same, is the property of the Adviser for copyright and all other purposes. The Name and the Mark may be used from time to time in other connections and for other purposes by the Adviser, and its affiliated persons and including with respect to other investment companies that have obtained consent to use of the Name or the Mark. The Trust understands and agrees that, in the event that the Adviser shall cease to act as investment adviser to a Fund, the Trust shall promptly take all necessary and appropriate action to discontinue use of the Name and the Mark and will further refrain from using the Name and the Mark; provided, however, that the Trust may continue to use the Name and the Mark for the sole purpose of identifying the Trust as an
account formerly managed by the Adviser or as otherwise consented to by the Adviser in writing prior to such use.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware 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 1940 Act and the Advisers Act and any rules and regulations promulgated thereunder.
This Agreement may not be assigned by any party, either in whole or in part, without the prior written consent of each other party.
At its own expense, the Adviser may carry out any of its obligations to the Trust and a Fund under this Agreement by employing, subject to the direction and control of the Board, one or more persons who are registered as investment advisers pursuant to the Advisers Act (“Sub- Adviser”Sub-Adviser”). Each Sub-Adviser’s employment to provide investment advisory services to a Fund will be evidenced by a separate written agreement between the Adviser and the Sub-Adviser approved by the Board and, if required by applicable law, by the shareholders of the Fund. The Adviser shall supervise and monitor the activities of each Sub-Adviser. The Adviser shall not be liable hereunder for any act or inaction of any Sub-Adviser except for the Sub-Adviser’s bad faith, willful misfeasance or negligence in the performance of or the reckless disregard of the Sub- Adviser’ sSub-Adviser’s duties or obligations under its sub-advisory agreement with the Adviser. In addition, the Adviser shall be liable: (1) for its failure to exercise good faith in the employment of the Sub- Adviser;Sub-Adviser; (2) for the Adviser’s failure to exercise appropriate supervision of the Sub-Adviser; and (3) as may be agreed by the Trust and the Adviser in writing.
The Trustees and officers of the Trust and the shareholders of a Fund shall not be personally liable for any obligations of the Trust or of any Fund under this Agreement, and the Adviser agrees that in asserting any rights or claims under this Agreement, it shall look only to the assets and property of the Fund to which the Adviser’s rights or claims relate in settlement of such rights or claims, and not to the Trustees of the Trust or the shareholders of any Fund.
