INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ___st day of _____, 1997 by and between BNY
Xxxxxxxx International Equity Fund (the "Series"), a series of BNY Xxxxxxxx
Funds, Inc., a Maryland corporation (the "Corporation") and The Bank of New
York, a New York bank (the "Adviser").
1. Duties of Adviser. The Series hereby appoints the Adviser to act
as investment adviser to the Series for the period and on such terms as are set
forth in this Agreement. The Series employs the Adviser to manage the
investment and reinvestment of the assets of the Series, to continuously review,
supervise and administer the investment program of the Series, to determine in
its discretion the securities to be purchased or sold and the portion of the
Series' assets to be held uninvested, to provide the Corporation with records
concerning the Adviser's activities which the Corporation is required to
maintain, and to render regular reports to the Corporation's officers and Board
of Directors concerning the Adviser's discharge of the foregoing
responsibilities. The Advisor shall discharge the foregoing responsibilities
subject to the control of the officers and the Board of Directors of the
Corporation, and in compliance with the objectives, policies and limitations set
forth in the Corporation's Registration Statement (No. 811-6654), including the
Series' prospectus and statement of
additional information, applicable laws and regulations. The Adviser accepts
such employment and agrees to render the services and to provide, at its own
expense, the office space, furnishings and equipment and the personnel required
by it to perform the services on the terms and for the compensation provided
therein.
The Corporation agrees that the Adviser may delegate certain of its
responsibilities under this Agreement to a subadviser (the "Subadviser") under a
subadvisory agreement (the "Subadvisory Agreement") approved as may be required
under the Investment Company Act of 1940 (the "1940 Act"), provided that any
such delegation will not relieve the Adviser of its duties and obligations under
this Agreement and, provided further, that the Adviser shall be available on a
continuous basis to consult with the Subadviser with respect to all investment
matters relating to the Series and the Adviser shall be required to supervise
and monitor the performance of the duties delegated to the Subadviser. The
Adviser agrees that it will not seek to amend any such subadvisory agreement
unless the Adviser gives the Corporation at least 60 days' prior written notice
thereof and otherwise complies with the requirements of the 1940 Act applicable
to such amendment.
2. Portfolio Transactions. Subject to any delegation pursuant to a
Subadvisory Agreement, the Adviser is authorized to select the brokers or
dealers that will
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execute the purchases and sales of securities for the Series and is directed to
use its best efforts to obtain the best available price and most favorable
execution, except as prescribed herein. Unless and until otherwise directed by
the Board of Directors of the Corporation, the Adviser may also effect
individual securities transactions at commission rates in excess of the minimum
commission rates available, if the Adviser determines in good faith that such
amount of commission is reasonable in relation to the value of the brokerage or
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 the Corporation. The execution of such transactions shall not be
deemed to represent an unlawful act or breach of any duty created by this
Agreement or otherwise. The Adviser will promptly communicate to the officers
and Directors of the Corporation such information relating to Series
transactions as they may reasonably request.
3. Compensation of the Adviser. For the services to be rendered by
the Adviser as provided in Section 1 of this Agreement, the Corporation shall
pay to the Adviser at the end of each month an advisory fee accrued daily and
payable monthly based on an annual percentage rate of 0.85% of the Series'
average daily net assets.
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In the event of termination of this Agreement, the fee provided in
this Section shall be computed on the basis of the period ending on the last
business day on which this Agreement is in effect, subject to a pro rata
adjustment based on the number of days elapsed in the month as a percentage of
the total number of days in such month.
4. Reports. The Series and the Adviser agree to furnish to each
other current prospectuses, proxy statements, reports to shareholders, certified
copies of their financial statements, and such other information with regard to
their affairs as each may reasonably request.
5. Status of Adviser. The services of the Adviser to the Series are
not be deemed exclusive, and the Adviser shall be free to render similar
services to others.
6. Liability of Adviser. In the absence of (i) wilful misfeasance,
bad faith or gross negligence on the part of the Adviser in performance of its
obligations and duties hereunder, (ii) reckless disregard by the Adviser of its
obligations and duties hereunder, or (iii) a loss resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services (in
which case any award of damages shall be limited to the period and the amount
set forth in Section 36(b)(3) of the 1940 Act, the Adviser shall not be subject
to any liability whatsoever to the Series, or to any shareholder of the Series,
for any error of judgment, mistake of law or any other act or
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omission in the course of, or connected with, rendering services hereunder
including, without limitation, for any losses that may be sustained in
connection with the purchase, holding, redemption or sale of any security on
behalf of the Series.
7. Permissible Interests. Subject to and in accordance with the
Articles of Incorporation of the Corporation and applicable law and regulation,
Directors, officers, agents and shareholders of the Corporation are or may be
interested in the Adviser (or any successor thereof) as Directors, officers,
agents, shareholders or otherwise; Directors, officers, agents and shareholders
of the Adviser are or may be interested in the Corporation as Directors,
officers, shareholders or otherwise; and the Adviser (or any successor) is or
may be interested in the Corporation as a shareholder or otherwise; and the
effect of any such interrelationships shall be governed by said Articles of
Incorporation and the provisions of the 1940 Act.
8. Duration and Termination. This Agreement, unless sooner terminated
as provided herein, shall continue until June 30, 1998 and thereafter shall
continue for periods of one year so long as 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 Corporation who are not parties to this Agreement or
interested persons of any such party, cast in person at a
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meeting called for the purpose of voting on such approval, and (b) by the Board
of Directors of the Corporation or by vote of a majority of the outstanding
voting securities of the Series. This Agreement may be terminated by the Series
at any time, without the payment of any penalty, by vote of a majority of the
entire Board of Directors of the Corporation or by vote of a majority of the
outstanding voting securities of the Series on 60 days' written notice to the
Adviser. This Agreement may be terminated by the Adviser at any time, without
the payment of any penalty, upon 60 days' written notice to the Series. This
Agreement will automatically and immediately terminate in the event of its
assignment. Any notice under this Agreement shall be given in writing,
addressed and delivered or mailed postpaid, to the other party at any office of
such party and shall be deemed given when received by the addressee.
As used in this Section 9, the terms "assignment", "interested
persons", and "a vote of a majority of the outstanding voting securities" shall
have the respective meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act.
9. Amendment of Agreement. This Agreement may be amended by mutual
consent, but the consent of the Series must be approved (a) by vote of
majority of those members of the Board of Directors of the Corporation who are
not parties to this Agreement or interested persons of any such
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party, cast in person at a meeting called for the purpose of voting on such
amendment, and (b) by vote of a majority of the outstanding voting securities of
the Series.
10. Use of Name. The Series agrees that if this Agreement is
terminated and the Adviser shall no longer be the adviser to the Series, the
Series will, within a reasonable periods of time, change its name to delete
reference to "BNY Xxxxxxxx".
11. Severability. If any provisions 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.
12. Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of New York, provided, however, that nothing herein
shall be construed as being inconsistent with the 1940 Act.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their officers thereunto duly authorized as of the day and year
first written above.
XXX XXXX XX XXX XXXX XXX XXXXXXXX FUNDS, INC.
for BNY XXXXXXXX
INTERNATIONAL EQUITY
FUND
By ______________________ By _____________________
Name: Name:
Title: Title:
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