INVESTMENT ADVISORY AGREEMENT
Perimeter Small Cap Growth Fund
AGREEMENT made as of September 30, 2011, between
THE RBB FUND, INC., a Maryland corporation (herein called the
"Fund"), and PERIMETER CAPITAL MANAGEMENT LLC, a Delaware
limited liability company (herein called the "Investment
Adviser").
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
Adviser to render certain investment advisory services to the
Fund with respect to the Fund's Perimeter Small Cap Growth
Fund (the "Portfolio"), and the Investment Adviser is willing
to so render such services; and
WHEREAS, the Board of Directors of the Fund and the
shareholders of the Portfolio have approved this Agreement;
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:
SECTION 1. Appointment. The Fund hereby appoints
the Investment Adviser to act as investment adviser for the
Portfolio for the period and on the terms set forth in this
Agreement. The Investment Adviser accepts such appointment
and agrees to render the services herein set forth, for the
compensation herein provided.
SECTION 2. Delivery of Documents. The Fund has
furnished the Investment Adviser 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 Adviser
and the execution and delivery of this Agreement;
(b) A prospectus and statement of additional
information relating to each class of shares representing
interests in the Portfolio of the Fund in effect under the
Securities Act of 1933 (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
Adviser from time to time with copies, properly certified or
authenticated, of all amendments of or supplements to the
foregoing, if any.
In addition to the foregoing, the Fund will also
provide the Investment Adviser 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 Adviser with any amendments of or supplements
to such documents.
SECTION 3. Management. Subject to the
supervision of the Board of Directors of the Fund, the
Investment Adviser 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 the securities and
other investments to 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 Adviser 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 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 Adviser 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 Adviser
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.
SECTION 4. Brokerage. Subject to the Investment
Adviser's obligation to obtain best price and execution, the
Investment Adviser shall have full discretion to select
brokers or dealers to effect the purchase and sale of
securities. When the Investment Adviser places orders for the
purchase or sale of securities for the Portfolio, in selecting
brokers or dealers to execute such orders, the Investment
Adviser 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 Adviser 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
Adviser, provided that the Investment Adviser 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 Adviser's overall responsibilities
with respect to accounts as to which the Investment Adviser
exercises investment discretion. The Investment Adviser may
aggregate securities orders so long as the Investment Adviser
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 Adviser, or any
affiliated person thereof, except to the extent permitted by
SEC exemptive order or by applicable law.
The Investment Adviser 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 Adviser, 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 Investment Adviser to the Fund and the
Investment Adviser'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.
SECTION 5. Conformity with Law; Confidentiality.
The Investment Adviser further agrees that it will comply with
all applicable rules and regulations of all federal regulatory
agencies having jurisdiction over the Investment Adviser in
the performance of its duties hereunder. The Investment
Adviser will treat confidentially and as proprietary
information of the Fund all records and other information
relating to the Fund and prior, present or potential
shareholders (except with respect to clients of the Investment
Adviser) 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 Adviser 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. Where the Investment Adviser
may be exposed to civil or criminal contempt proceedings for
failure to comply with a request for records or other
information relating to the Fund, the Investment Adviser may
comply with such request prior to obtaining the Fund's written
approval, provided that the Investment Adviser has taken
reasonable steps to promptly notify the Fund, in writing, upon
receipt of the request.
SECTION 6. Services Not Exclusive. The
Investment Adviser 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 Adviser 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 Adviser or any of its directors, officers,
affiliates or employees from buying, selling or trading in any
securities for its or their own account. The Fund
acknowledges that the Investment Adviser and its directors,
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
Adviser shall have no obligation to acquire for the Portfolio
a position in any investment which the Investment Adviser, its
directors, 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 Adviser 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 Adviser agrees that this Section 6
does not constitute a waiver by the Fund of the obligations
imposed upon the Investment Adviser 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 Adviser under Section 206 of the
Investment Advisers Act of 1940 and the rules thereunder.
Further, the Investment Adviser agrees that this Section 6
does not constitute a waiver by the Fund of the fiduciary
obligation of the Investment Adviser arising under federal or
state law, including Section 36 of the 1940 Act. The
Investment Adviser agrees that this Section 6 shall be
interpreted consistent with the provisions of Section 17(i) of
the 1940 Act.
SECTION 7. Books and Records. In compliance with
the requirements of Rule 31a-3 under the 1940 Act, the
Investment Adviser 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 Adviser
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.
SECTION 8. Expenses. During the term of this
Agreement, the Investment Adviser 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 Adviser. General
expenses of the Fund not readily identifiable as belonging to
an investment 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 Adviser; (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 of 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
materials 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 materials 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 the 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 preparing, 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 Portfolio are allocated to such class.
SECTION 9. Voting. The Investment Adviser shall
have the authority to vote as agent for the Portfolio, either
in person or by proxy, tender and take all actions incident to
the ownership of all securities in which the 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.
SECTION 10. Reservation of Name. The Investment
Adviser 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 Adviser 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. The Fund hereby agrees that in the event that
neither the Investment Adviser nor any of its affiliates acts
as investment adviser to the Portfolio,
the name of the Portfolio will be changed to one that does not
contain the name "Perimeter" or otherwise suggest an
affiliation with the Investment Adviser.
SECTION 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 Adviser from the
assets of the Portfolio and the Investment Adviser will accept
as full compensation therefor a fee, computed daily and
payable monthly, at the annual rate of 0.90% of the
Portfolio's average daily net assets. For any period less
than a full month during which this Agreement is in effect,
the fee shall be prorated according to the proportion which
such period bears to a full month.
(b) The fee attributable to the Portfolio shall
be satisfied only against the assets of the Portfolio and not
against the assets of any other investment portfolio of the
Fund. The Investment Adviser may from time to time agree not
to impose all or a portion of its fee otherwise payable
hereunder (in advance of the time such fee or portion thereof
would otherwise accrue) and/or undertake to pay or reimburse
the Portfolio for all or a portion of its expenses not
otherwise required to be borne or reimbursed by the Investment
Adviser.
SECTION 12. Limitation of Liability. The
Investment Adviser 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 Adviser 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
Adviser 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 Adviser. 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 Adviser 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 Adviser 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 Fund nor parties to the proceeding
("disinterested non-party directors") or (b) an independent
legal counsel in a written opinion. The Investment Adviser
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 Adviser
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 Adviser 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 available to
the Portfolio at the time the advance is proposed to be made,
that there is reason to believe that the Investment Adviser
will ultimately be found to be entitled to indemnification.
Any amounts payable by the Portfolio under this Section 12
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 Section 12 shall not be applicable to any
losses, claims, damages, liabilities or expenses arising from
the Investment Adviser's rights to the Portfolio's name. The
Investment Adviser shall indemnify and hold harmless the Fund
and the Portfolio for any claims arising from the use of the
term "Perimeter" in the name of the Portfolio.
SECTION 13. Duration and Termination. This
Agreement shall become effective with respect to the Portfolio
as of the date first above written and, unless sooner
terminated as provided herein, shall continue with respect to
the Portfolio until August 16, 2013. 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 Adviser, or by the
Investment Adviser 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).
SECTION 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.
SECTION 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.
SECTION 16. Notice. All notices hereunder shall
be given in writing and delivered by hand, national overnight
courier, facsimile (provided written confirmation of receipt
is obtained and said notice is sent via first class mail on
the next business day) or mailed by certified mail, return
receipt requested, as follows:
If to the Fund:
The RBB Fund, Inc.
Bellevue Corporate Center
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Fax: 000-000-0000
If to the Investment Adviser:
Perimeter Capital Management, LLC
Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, President
Fax:
The effective date of any notice shall be (i) the
date such notice is sent if such delivery is effected by hand
or facsimile, (ii) one business day after the date such notice
is sent if such delivery is effected by national overnight
courier; or (iii) the fifth (5th) Business Day after the date
of mailing thereof.
SECTION 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.
SECTION 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: /s/ Xxxxxxxxx Xxxx
Xxxxxxxxx Xxxx
President
PERIMETER CAPITAL MANAGEMENT, LLC
By: /s/ X. Xxxxxxx Ball
Name: X. Xxxxxxx Ball
Title: Chief Executive Officer
