Exhibit 5(u)
INVESTMENT ADVISORY AGREEMENT
Boston Partners Long-Short Equity Fund
AGREEMENT made as of ______, 1999 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 Long Short Equity 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.
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
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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, 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.
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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.
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
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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.
If the expenses borne by the Portfolio in any fiscal year exceed the
most restrictive applicable expense limitations imposed by the securities
regulations of any state in which the Shares of the Portfolio are registered or
qualified for sale to the public, the Investment Advisor shall reimburse the
Portfolio for any excess up to the amount of the fees payable by the Portfolio
to it during such fiscal year pursuant to Paragraph 9 hereof in the same
proportion that its fees bear to the total fees paid by the Fund for investment
advisory services in respect of the Portfolio; PROVIDED, HOWEVER, that
notwithstanding the foregoing, the Investment Advisor shall reimburse the
Portfolio
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for such excess expenses regardless of the amount of such fees payable to it
during such fiscal year to the extent that the securities regulations of any
state in which the Shares are registered or qualified for sale so require.
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.
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 0.10% 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
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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 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, ____. 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
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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.
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.
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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:_______________________________________________
BOSTON PARTNERS ASSET
MANAGEMENT, L.P., by BOSTON
PARTNERS, INC., its General
Partner
By:_______________________________________________
