Exhibit 5(dd)
INVESTMENT ADVISORY AGREEMENT
Boston Partners Micro Cap Value Fund
AGREEMENT made as of , 1998 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 Micro Cap Value 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
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provide brokerage and research services utilized by the
Investment Advisor, provided that the Investment Advisor
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
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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 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
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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 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
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of the Portfolio; provided, however, that notwithstanding the
foregoing, the Investment Advisor shall reimburse the Portfolio
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 1.25% 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.
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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 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, 1998. 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
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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 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.
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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:______________________
Xxxxxx X. Xxxxx
President and Treasurer
BOSTON PARTNERS ASSET
MANAGEMENT, L.P., by BOSTON
PARTNERS, INC., its General
Partner
By:_________________
Xxxxxxx X. Xxxxx,
Treasurer
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