Exhibit (d)(28)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of April 29, 2005, between THE RBB FUND, INC., a
Maryland corporation (herein called the "Fund"), and Xxxxx, Xxxx & Xxxxx
Investments, a division of Robeco USA, L.L.C. (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;
WHEREAS, the Fund desires to retain the Investment Adviser to render
certain investment advisory services to the Fund with respect to the Fund's
Robeco WPG Large 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, and the Adviser is willing to
furnish such services upon the terms and conditions herein set forth;
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) 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 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 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 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
- 2 -
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 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 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 Adviser 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 Adviser shall have no
obligation to acquire for the Portfolio a position in any investment which the
Investment Adviser, 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 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.
- 3 -
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 3la-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 3la-2 under the 1940 Act the records required to be
maintained by Rule 3la-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 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 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 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,
- 4 -
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.
SECTION 9. VOTING. The Investment Adviser 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 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 names "Xxxxx, Xxxx & Xxxxx" or "Robeco" or the initials "WPG" 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 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
- 5 -
conduct by (a) the vote of a majority of a quorum of directors of the Fund 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 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 terms "Xxxxx, Xxxx & Xxxxx"
or "Robeco" or "WPG" in the name of the Portfolio.
SECTION 13. DURATION AND TERMINATION. This Agreement shall become
effective with respect to the Portfolio as of the closing date of the
reorganization as defined in the Agreement and Plan of Reorganization between
the Fund and the Investment Adviser dated as of April 29, 2005 (the "Effective
Date") and, unless sooner terminated as provided herein, shall continue with
respect to the Portfolio until August 16, 2006. 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
- 6 -
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 Investment Adviser:
Xxxxx, Xxxx & Xxxxx Investments,
a division of Robeco USA, L.L.C.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
If to the Fund:
The RBB Fund, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Fax: 000-000-0000
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.
- 7 -
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/ XXXXXX X. XXXXX
---------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Treasurer
XXXXX, XXXX & XXXXX INVESTMENTS,
A DIVISION OF ROBECO USA, L.L.C.
By: /S/ XXXXXXX X. XXXXX
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
- 8 -
