Exhibit (d)(28)
PROPOSED
INVESTMENT ADVISORY AGREEMENT
Boston Partners All-Cap Value Fund
AGREEMENT made as of ____________ __, 2002 between THE RBB FUND, INC., a
Maryland corporation (herein called the "Fund"), and Boston Partners Asset
Management, L.P. (herein called the "Investment Advisor").
WHEREAS, the Fund is registered as an open-end, management investment
company under the Investment Company Act of 1940 (the "1940 Act") and currently
offers or proposes to offer shares representing interests in separate investment
portfolios; and
WHEREAS, the Fund desires to retain the Investment Advisor to render
certain investment advisory services to the Fund with respect to the Fund's
Boston Partners All-Cap Value Fund (the "Portfolio"), and the Investment Advisor
is willing to so render such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, it is agreed between
the parties hereto as follows:
1. APPOINTMENT. The Fund hereby appoints the Investment Advisor to act as
investment advisor for the Portfolio for the period and on the terms set forth
in this Agreement. The Investment Advisor accepts such appointment and agrees to
render the services herein set forth, for the compensation herein provided.
2. DELIVERY OF DOCUMENTS. The Fund has furnished the Investment Advisor
with copies properly certified or authenticated of each of the following:
(a) Resolutions of the Board of Directors of the Fund authorizing the
appointment of the Investment Advisor and the execution and delivery of this
Agreement;
(b) Each prospectus and statement of additional information relating to
any class of Shares representing interests in the Portfolio of the Fund in
effect under the 1933 Act (such prospectus and statement of additional
information, as presently in effect and as they shall from time to time be
amended and supplemented, are herein collectively called the "Prospectus" and
"Statement of Additional Information," respectively).
The Fund will promptly furnish the Investment Advisor from time to time
with copies, properly certified or authenticated, of all amendments of or
supplements to the foregoing, if any.
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In addition to the foregoing, the Fund will also provide the Investment
Advisor with copies of the Fund's Charter and By-laws, and any registration
statement or service contracts related to the Portfolio, and will promptly
furnish the Investment Advisor with any amendments of or supplements to such
documents.
3. MANAGEMENT OF THE PORTFOLIO. Subject to the supervision of the Board of
Directors of the Fund, the Investment Advisor will provide for the overall
management of the Portfolio including (i) the provision of a continuous
investment program for the Portfolio, including investment research and
management with respect to all securities, investments, cash and cash
equivalents in the Portfolio, (ii) the determination from time to time of what
securities and other investments will be purchased, retained, or sold by the
Fund for the Portfolio, and (iii) the placement from time to time of orders for
all purchases and sales made for the Portfolio. The Investment Advisor will
provide the services rendered by it hereunder in accordance with the Portfolio's
investment objectives, restrictions and policies as stated in the applicable
Prospectus and the Statement of Additional Information, provided that the
Investment Adviser has actual notice or knowledge of any changes by the Board of
Directors to such investment objectives, restrictions or policies. The
Investment Advisor further agrees that it will render to the Fund's Board of
Directors such periodic and special reports regarding the performance of its
duties under this Agreement as the Board may reasonably request. The Investment
Advisor agrees to provide to the Fund (or its agents and service providers)
prompt and accurate data with respect to the Portfolio's transactions and, where
not otherwise available, the daily valuation of securities in the Portfolio.
4. BROKERAGE. Subject to the Investment Advisor's obligation to obtain best
price and execution, the Investment Advisor shall have full discretion to select
brokers or dealers to effect the purchase and sale of securities. When the
Investment Advisor places orders for the purchase or sale of securities for the
Portfolio, in selecting brokers or dealers to execute such orders, the
Investment Advisor is expressly authorized to consider the fact that a broker or
dealer has furnished statistical, research or other information or services for
the benefit of the Portfolio directly or indirectly. Without limiting the
generality of the foregoing, the Investment Advisor is authorized to cause the
Portfolio to pay brokerage commissions which may be in excess of the lowest
rates available to brokers who execute transactions for the Portfolio or who
otherwise provide brokerage and research services utilized by the Investment
Advisor, provided that the Investment Advisor determines in good faith that the
amount of each such commission paid to a broker is reasonable in relation to the
value of the brokerage and research services provided by such broker viewed in
terms of either the particular transaction to which the commission relates or
the Investment Advisor's overall responsibilities with respect to accounts as to
which the Investment Advisor exercises investment discretion. The Investment
Advisor may aggregate securities orders so long as the Investment Advisor
adheres to a policy of allocating investment opportunities to the Portfolio over
a period of time on a fair and equitable basis relative to other clients. In no
instance will the Portfolio's securities be purchased from or sold to the Fund's
principal underwriter, the Investment Advisor, or any affiliated person thereof,
except to the extent permitted by SEC exemptive order or by applicable law.
The Investment Advisor shall report to the Board of Directors of the Fund
at least quarterly with respect to brokerage transactions that were entered into
by the Investment Advisor,
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pursuant to the foregoing paragraph, and shall certify to the Board that the
commissions paid were reasonable in terms either of that transaction or the
overall responsibilities of the Advisor to the Fund and the Investment Advisor's
other clients, that the total commissions paid by the Fund were reasonable in
relation to the benefits to the Fund over the long term, and that such
commissions were paid in compliance with Section 28(e) of the Securities
Exchange Act of 1934.
5. CONFORMITY WITH LAW; CONFIDENTIALITY. The Investment Advisor further
agrees that it will comply with all applicable rules and regulations of all
federal regulatory agencies having jurisdiction over the Investment Advisor in
the performance of its duties hereunder. The Investment Advisor will treat
confidentially and as proprietary information of the Fund all records and other
information relating to the Fund and will not use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing by the
Fund, which approval shall not be unreasonably withheld and may not be withheld
where the Investment Advisor may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Fund.
6. SERVICES NOT EXCLUSIVE. The Investment Advisor and its officers may act
and continue to act as investment managers for others, and nothing in this
Agreement shall in any way be deemed to restrict the right of the Investment
Advisor to perform investment management or other services for any other person
or entity, and the performance of such services for others shall not be deemed
to violate or give rise to any duty or obligation to the Portfolio or the Fund.
Nothing in this Agreement shall limit or restrict the Investment Advisor or
any of its partners, officers, affiliates or employees from buying, selling or
trading in any securities for its or their own account. The Fund acknowledges
that the Investment Advisor and its partners, officers, affiliates, employees
and other clients may, at any time, have, acquire, increase, decrease, or
dispose of positions in investments which are at the same time being acquired or
disposed of for the Portfolio. The Investment Advisor shall have no obligation
to acquire for the Portfolio a position in any investment which the Investment
Advisor, its partners, officers, affiliates or employees may acquire for its or
their own accounts or for the account of another client, so long as it continues
to be the policy and practice of the Investment Advisor not to favor or disfavor
consistently or consciously any client or class of clients in the allocation of
investment opportunities so that, to the extent practical, such opportunities
will be allocated among clients over a period of time on a fair and equitable
basis.
The Investment Advisor agrees that this Paragraph 6 does not constitute a
waiver by the Fund of the obligations imposed upon the Investment Advisor to
comply with Sections 17(d) and 17(j) of the 1940 Act, and the rules thereunder,
nor constitute a waiver by the Fund of the obligations imposed upon the
Investment Advisor under Section 206 of the Investment Advisers Act of 1940 and
the rules thereunder. Further, the Investment Advisor agrees that this Paragraph
6 does not constitute a waiver by the Fund of the fiduciary obligation of the
Investment Advisor arising under federal or state law, including Section 36 of
the 1940 Act. The Investment Advisor agrees that this Paragraph 6 shall be
interpreted consistent with the provisions of Section 17(i) of the 1940 Act.
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7. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Investment Advisor hereby agrees that all records which
it maintains for the Portfolio are the property of the Fund and further agrees
to surrender promptly to the Fund any of such records upon the Fund's request.
The Investment Advisor further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records required to be maintained by Rule
31a-1 under the 1940 Act.
8. EXPENSES. During the term of this Agreement, the Investment Advisor will
pay all expenses incurred by it in connection with its activities under this
Agreement. The Portfolio shall bear all of its own expenses not specifically
assumed by the Investment Advisor. General expenses of the Fund not readily
identifiable as belonging to a portfolio of the Fund shall be allocated among
all investment portfolios by or under the direction of the Fund's Board of
Directors in such manner as the Board determines to be fair and equitable.
Expenses borne by the Portfolio shall include, but are not limited to, the
following (or the portfolio's share of the following): (a) the cost (including
brokerage commissions) of securities purchased or sold by the Portfolio and any
losses incurred in connection therewith; (b) fees payable to and expenses
incurred on behalf of the Portfolio by the Investment Advisor; (c) filing fees
and expenses relating to the registration and qualification of the Fund and the
Portfolio's shares under federal and/or state securities laws and maintaining
such registrations and qualifications; (d) fees and salaries payable to the
Fund's directors and officers; (e) taxes (including any income or franchise
taxes) and governmental fees; (f) costs of any liability and other insurance or
fidelity bonds; (g) any costs, expenses or losses arising out a liability of or
claim for damages or other relief asserted against the Fund or the Portfolio for
violation of any law; (h) legal, accounting and auditing expenses, including
legal fees of special counsel for the independent directors; (i) charges of
custodians and other agents; (j) expenses of setting in type and printing
prospectuses, statements of additional information and supplements thereto for
existing shareholders, reports, statements, and confirmations to shareholders
and proxy material that are not attributable to a class; (k) costs of mailing
prospectuses, statements of additional information and supplements thereto to
existing shareholders, as well as reports to shareholders and proxy material
that are not attributable to a class; (1) any extraordinary expenses; (m) fees,
voluntary assessments and other expenses incurred in connection with membership
in investment company organizations; (n) costs of mailing and tabulating proxies
and costs of shareholders' and directors' meetings; (o) costs of independent
pricing services to value a portfolio's securities; and (p) the costs of
investment company literature and other publications provided by the Fund to its
directors and officers. Distribution expenses, transfer agency expenses,
expenses of preparation, printing and mailing, prospectuses, statements of
additional information, proxy statements and reports to shareholders, and
organizational expenses and registration fees, identified as belonging to a
particular class of the Fund are allocated to such class.
9. VOTING. The Investment Advisor shall have the authority to vote as agent
for the Fund, either in person or by proxy, tender and take all actions incident
to the ownership of all securities in which Portfolio's assets may be invested
from time to time, subject to such policies and procedures as the Board of
Directors of the Fund may adopt from time to time.
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10. RESERVATION OF NAME. The Investment Advisor shall at all times have all
rights in and to the Portfolio's name and all investment models used by or on
behalf of the Portfolio. The Investment Advisor may use the Portfolio's name or
any portion thereof in connection with any other mutual fund or business
activity without the consent of any shareholder and the Fund shall execute and
deliver any and all documents required to indicate the consent of the Fund to
such use.
11. COMPENSATION.
(a) For the services provided and the expenses assumed pursuant to this
Agreement with respect to the Portfolio, the Fund will pay the Investment
Advisor from the assets of the Portfolio and the Investment Advisor will accept
as full compensation therefor a fee, computed daily and payable monthly, at the
annual rate of 1.00% of the Portfolio's average daily net assets.
(b) The fee attributable to the Portfolio shall be satisfied only
against assets of the Portfolio and not against the assets of any other
investment portfolio of the Fund.
12. LIMITATION OF LIABILITY OF THE INVESTMENT ADVISOR. The Investment
Advisor shall not be liable for any error of judgment or mistake of law or for
any loss suffered by the Fund in connection with the matters to which this
Agreement relates, except a loss resulting from a breach of fiduciary duty with
respect to the receipt of compensation for services or a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of the Investment
Advisor in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement ("disabling conduct"). The Portfolio
will indemnify the Investment Advisor against and hold it harmless from any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or suit not
resulting from disabling conduct by the Investment Advisor. Indemnification
shall be made only following: (i) a final decision on the merits by a court or
other body before whom the proceeding was brought that the Investment Advisor
was not liable by reason of disabling conduct or (ii) in the absence of such a
decision, a reasonable determination, based upon a review of the facts, that the
Investment Advisor was not liable by reason of disabling conduct by (a) the vote
of a majority of a quorum of directors of the Portfolio who are neither
"interested persons" of the Portfolio nor parties to the proceeding
("disinterested non-party directors") or (b) an independent legal counsel in a
written opinion. The Investment Advisor shall be entitled to advances from the
Portfolio for payment of the reasonable expenses incurred by it in connection
with the matter as to which it is seeking indemnification in the manner and to
the fullest extent permissible under the Maryland General Corporation Law. The
Investment Advisor shall provide to the Portfolio a written affirmation of its
good faith belief that the standard of conduct necessary for indemnification by
the Portfolio has been met and a written undertaking to repay any such advance
if it should ultimately be determined that the standard of conduct has not been
met. In addition, at least one of the following additional conditions shall be
met: (a) the Investment Advisor shall provide a security in form and amount
acceptable to the Portfolio for its undertaking; (b) the Portfolio is insured
against losses arising by reason of the advance; or (c) a majority of a quorum
of disinterested non-party directors, or independent legal counsel, in a written
opinion, shall have determined, based upon a review of facts readily
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available to the Portfolio at the time the advance is proposed to be made, that
there is reason to believe that the Investment Advisor will ultimately be found
to be entitled to indemnification. Any amounts payable by the Portfolio under
this Section shall be satisfied only against the assets of the Portfolio and not
against the assets of any other investment portfolio of the Fund.
The limitations on liability and indemnification provisions of this
paragraph 12 shall not be applicable to any losses, claims, damages, liabilities
or expenses arising from the Investment Advisor's rights to the Portfolio's
name. The Investment Advisor shall indemnify and hold harmless the Fund and the
Portfolio for any claims arising from the use of the term "Boston Partners" in
the name of the Portfolio.
13. DURATION AND TERMINATION. This Agreement shall become effective with
respect to the Portfolio upon approval of this Agreement by vote of a majority
of the outstanding voting securities of the Portfolio and, unless sooner
terminated as provided herein, shall continue with respect to the Portfolio
until August 16, 2003. Thereafter, if not terminated, this Agreement shall
continue with respect to the Portfolio for successive annual periods ending on
August 16 PROVIDED such continuance is specifically approved at least annually
(a) by the vote of a majority of those members of the Board of Directors of the
Fund who are not parties to this Agreement or interested persons of any such
party, cast in person at a meeting called for the purpose of voting on such
approval, and (b) by the Board of Directors of the Fund or by vote of a majority
of the outstanding voting securities of the Portfolio; PROVIDED, HOWEVER, that
this Agreement may be terminated with respect to the Portfolio by the Fund at
any time, without the payment of any penalty, by the Board of Directors of the
Fund or by vote of a majority of the outstanding voting securities of the
Portfolio, on 60 days' prior written notice to the Investment Advisor, or by the
Investment Advisor at any time, without payment of any penalty, on 60 days'
prior written notice to the Fund. This Agreement will immediately terminate in
the event of its assignment. (As used in this Agreement, the terms "majority of
the outstanding voting securities," "interested person" and "assignment" shall
have the same meaning as such terms have in the 1940 Act).
14. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, discharged or terminated orally, except by an instrument in writing
signed by the party against which enforcement of the change, discharge or
termination is sought, and no amendment of this Agreement affecting the
Portfolio shall be effective until approved by vote of the holders of a majority
of the outstanding voting securities of the Portfolio.
15. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by Delaware law.
16. CHANGE IN MEMBERSHIP. The Investment Advisor shall notify the Fund of
any change in its membership within a reasonable time after such change.
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17. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without giving
effect to the conflicts of laws principles thereof.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
THE RBB FUND, INC.
By:__________________________________
Name: Xxxxxx X. Xxxxx
Title: President & Treasurer
BOSTON PARTNERS ASSET
MANAGEMENT, L.P., by BOSTON
PARTNERS, INC., its General Partner
By:__________________________________
Name:
Title:
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