Exhibit 5(w)
SUBADVISORY AGREEMENT
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AGREEMENT made this _____ day of ________________, 2002 by and
between The Bank of New York, a New York bank (the "Adviser"), and Gannett Welsh
& Kotler Inc., a corporation organized under the laws of [Delaware] (the
"Subadviser").
1. Duties of Subadviser. The Adviser hereby appoints the
Subadviser to act as investment adviser to BNY Xxxxxxxx Multi-Cap Equity Fund
(the "Series"), a series of BNY Xxxxxxxx Funds, Inc., a Maryland corporation
(the "Corporation"), for the period and on such terms as are set forth in this
Agreement. The Adviser employs the Subadviser 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 Adviser and the Corporation with records
concerning the Subadviser's activities which the Corporation is required to
maintain, and to render regular reports to the Adviser, the Corporation's
officers and Board of Directors concerning the Subadviser's discharge of the
foregoing responsibilities. The Subadviser shall discharge the foregoing
responsibilities subject to the control of the Adviser and 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
(Nos. 811-6654; 33-47703), including the Series' prospectus and statement of
additional information, applicable laws and regulations. In
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carrying out its responsibilities hereunder, the Subadviser will consult with
the Adviser on a continuous basis regarding the management of the Series. The
Subadviser 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 Subadviser 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.
It is also understood that it is desirable for the Series that the Subadviser
have access to supplemental investment and market research and security and
economic analyses provided by brokers who may execute brokerage transactions at
a higher cost to the Series than may result when allocating brokerage to other
brokers on the basis of seeking the most favorable price and efficient
execution. Therefore, the Subadviser is authorized to place orders for the
purchase and sale of securities for the Series with such brokers, subject to
review by the Directors of the Corporation from time to time with respect to the
extent and continuation of this practice. It is understood that the services
provided by such brokers may be useful to the Subadviser in connection with its
services to other clients. The Subadviser may, on occasions when it deems the
purchase or sale of a security to be in the best interests of the Series as well
as its other customers aggregate, to the extent permitted by applicable laws and
regulations, the securities to be sold or purchased in order to obtain the best
net price and the most favorable execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Subadviser in the manner it considers to be the
most equitable and consistent with its
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fiduciary obligations. 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 Subadviser will promptly communicate to the Adviser and the
officers and Directors of the Corporation such information relating to Series
transactions as they may reasonably request.
3. Compensation of the Subadviser. For the services to be
rendered by the Subadviser as provided in Section 1 of this Agreement, the
Adviser shall pay to the Subadviser at the end of each month an advisory fee
accrued daily and payable monthly based on an annual percentage rate of [_____]%
of the Series' average daily net assets. Neither the Corporation nor the Series
shall be responsible for any portion of the compensation payable to the
Subadviser hereunder.
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 Adviser agrees to furnish to the Subadviser
current prospectuses, proxy statements, reports to shareholders, financial
statements and such other information relating to the Series as the Subadviser
may reasonably request. The Subadviser agree to furnish to the Adviser and to
the Corporation such information concerning its own affairs as the Adviser or
the Corporation may reasonably request, including copies of its Form ADV and any
other filings of the Subadviser with the U.S. Securities and Exchange Commission
and certified copies of its financial statements.
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5. Status of Subadviser. The services of the Subadviser to the
Adviser and the Series are not be deemed exclusive, and the Subadviser shall be
free to render similar services to others.
6. Liability of Subadviser. In the absence of (i) willful
misfeasance, bad faith or gross negligence on the part of the Subadviser in
performance of its obligations and duties hereunder, (ii) reckless disregard by
the Subadviser of its obligations and duties hereunder or (iii) a loss resulting
from a breach of fiduciary duty by the Subadviser with respect to the receipt of
compensation for its 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 (the "1940 Act"), the Subadviser shall not be
subject to any liability whatsoever to the Adviser or 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
and/or the Adviser are or may be interested in the Subadviser (or any successor
thereof) as Directors, officers, agents, shareholders or otherwise; Directors,
officers, agents and shareholders of the Subadviser are or may be interested in
the Corporation and/or the Adviser as Directors, officers, shareholders or
otherwise; and the Subadviser (or any successor) is or may be interested in the
Corporation and/or the Adviser as a shareholder or otherwise; and the effect of
any such
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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 August 31, 2004 and
thereafter shall continue for periods of one year so long as such continuance is
specifically approved at least annually (a) by the Adviser and (b) (1) 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 (2) 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 Adviser or by the Series at any time, without the payment of
any penalty (in the case of termination by the Series, 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
Subadviser and, in the case of termination by the Adviser, to the Corporation.
This Agreement may be terminated by the Subadviser at any time, without the
payment of any penalty, upon 60 days' written notice to the Adviser and 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.
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9. Amendment of Agreement. This Agreement may be amended by
mutual consent of the parties, but the consent of the Corporation must also be
obtained, which consent 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. 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.
11. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of New York, provided, however, that
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nothing herein shall be construed as being inconsistent with the 1940 Act.
12. 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.
THE BANK OF NEW YORK GANNETT WELSH & KOTLER, INC.
By ______________________ By __________________________
Name: Name:
Title: Title:
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