INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ___st day of _____, 1997 by and between
BNY Xxxxxxxx Small Cap Growth 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.
2. Portfolio Transactions. The Adviser is authorized to
select the brokers or dealers that will 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
2
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 0.75% of
the Series' average daily net assets.
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
3
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 Investment Company Act of 1940 ("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 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.
4
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 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
5
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 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
6
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.
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 SMALL
CAP GROWTH FUND
By ______________________ By _____________________
Name: Name:
Title: Title:
7
