INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of March 5, 2007 between THE RBB
FUND, INC., a Maryland corporation (herein called the "Fund"),
and Xxxxxx & Xxxxxx Associates, Inc. (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 Xxxxxx & Xxxxxx 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 Investment 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. The assets of the Portfolio will
be maintained in the custody of a custodian (who shall be
identified by the Fund in writing prior to the execution of this
Agreement). The Investment Adviser will not have custody of any
securities, cash or other assets of the Portfolio and will not
be liable for any loss resulting from any act or omission of the
custodian other than acts or omissions arising in strict
reliance on instructions of the Investment Adviser.
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, the Fund's Compliance Manual and other policies and
procedures adopted from time to time by the Board of Directors
of the Fund 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, provide assistance in
determining the fair value of all securities and other
investments/assets in the Portfolio, as necessary, and use
reasonable efforts to arrange for the provision of valuation
information or a price(s) from a party(ies) independent of the
Investment Adviser for each security or other investment/asset
in the Portfolio for which market prices are not readily
available. Except to the extent indicated above, the Investment
Adviser will not be responsible for establishing the net asset
value of the Fund.
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 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
prior, present or potential shareholders (except with respect to
clients of the Investment Adviser) 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.
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 (the "Advisers Act") 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 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
materials 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 materials 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.
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. No
public reference to, or description of, the Investment Adviser
or its methodology or work shall be made by the Fund, whether in
the Prospectus, Statement of Additional Information or
otherwise, without the prior written consent of the Investment
Adviser, which consent shall not be unreasonably withheld. In
each case, the Fund shall provide the Investment Adviser a
reasonable opportunity to review any such reference or
description before being asked for such consent. 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 name "Xxxxxx & Xxxxxx" or otherwise
suggest an affiliation with the Investment Adviser.
SECTION 11. DISCONTINUATION OF PUBLIC OFFERING. Subject
to the prior approval of the Fund's Board of Directors, the
Investment Adviser may instruct the Fund's distributor to cease
sales of shares of the Portfolio to new investors due to
concerns that an increase in the size of the Portfolio may
adversely affect the implementation of the Portfolio's
investment strategy. Subject to prior Board approval, the
Investment Adviser may subsequently instruct the fund's
distributor to recommence the sale of shares of the Portfolio.
SECTION 12. 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 0.65% 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.
SECTION 13. 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 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 13 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 13 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
term "Xxxxxx & Xxxxxx" in the name of the Portfolio.
SECTION 14. DURATION AND TERMINATION. This Agreement
shall become effective with respect to the Portfolio as of the
date first above written and, unless sooner terminated as
provided herein, shall continue with respect to the Portfolio
until August 16, 2007. 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 15. 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.
SECTION 16. 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 17. NOTICE. All instructions, notices, reports
and other communications contemplated by this Agreement must be
in writing and be addressed as follows:
If to the Fund:
The RBB Fund, Inc.
Bellevue Corporate Center
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax: 000-000-0000
If to the Investment Adviser:
Xxxxxx & Xxxxxx Associates, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
SECTION 18. DELIVERY OF INFORMATION. The Fund
acknowledges receipt of the most recent copy of Part II of the
Investment Adviser's Form ADV at least 48 hours prior to
entering into this Agreement. Upon written request by the Fund,
the Investment Adviser agrees to deliver annually, without
charge, the Investment Adviser's brochure required by the
Advisers Act. The Investment Adviser will also deliver its
brochure to the Fund without charge in the event of a material
change therein.
SECTION 19. REFERENCES TO FUND. The Fund acknowledges
and agrees that the Investment Adviser may include the name of
the Fund and/or the Portfolio on the client list that it
publishes, including on its website, and may publish
advertisements or distribute sales literature or other written
materials to the public that makes reference to the Fund and/or
the Portfolio.
SECTION 20. CHANGE IN MEMBERSHIP. The Investment
Adviser shall notify the Fund of any change in its membership
within a reasonable time after such change.
SECTION 21. 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 22. 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: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Treasurer
XXXXXX & XXXXXX ASSOCIATES, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: General Counsel, Principal
