INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of August 30, 2023 between THE RBB
FUND, INC., a Maryland corporation (herein called the “Fund”), and F/M INVESTMENTS, LLC, d/b/a NORTH SLOPE CAPITAL, LLC, a
Delaware limited liability company (herein called the “Investment Adviser”).
WHEREAS, the Fund is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (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 Adviser
to render certain investment advisory services to the Fund with respect to the Fund’s F/m Opportunistic Income ETF (the “Portfolio”),
and the Investment Adviser is willing to so render such services; and
WHEREAS, the Board of Directors of the Fund and the
shareholder(s) 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.
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; and
(b) A prospectus and statement of additional information
relating to each 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, 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.
(a ) Subject to the supervision of the Board of Directors
of the Fund and subject to Section 3(b) below, 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 the securities and other
investments to be purchased, retained, or sold by the Fund for the Portfolio, (iii) the placement from time to time of orders for all
purchases and sales made for the Portfolio, (iv) in connection with its management of the Portfolio, monitoring and assistance with anticipated
purchases and redemptions of creation units by shareholders and new investors, (v) the determination of the amount of the cash component,
the identity and number of shares of the securities to be accepted in exchange for “Creation Units” for the Portfolio and
the securities that will be applicable that day to redemption requests received for the Portfolio (and may give directions to the Fund’s
custodian with respect to such designations), (vi) the coordination of the Portfolio’s compliance with rules of the applicable securities
exchange, and (vii) the establishment, monitoring and keeping up-to-date of the Portfolio’s website to comply with applicable law.
The Investment Adviser shall have a limited power-of-attorney to execute any trading and/or subscription documents necessary in order
to carry out its duties under this Section 3. 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 and, where not otherwise available, the daily valuation of securities in the Portfolio.
(b) Sub-Advisers. The Investment Adviser may
delegate certain of its responsibilities hereunder with respect to provision of the investment advisory services set forth in Section
3(a) above to one or more other parties (each such party, a “Sub-Adviser”), pursuant in each case to a written agreement with
such Sub-Adviser that meets the requirements of Section 15 of the 1940 Act and rules thereunder applicable to contracts for service as
investment adviser of a registered investment company (including without limitation the requirements for approval by the Board of Directors
of the Fund and the shareholders of the Portfolio), subject, however, to such exemptions as may be granted by the U.S. Securities and
Exchange Commission (the “SEC”) upon application or by rule. Such Sub-Adviser may (but need not) be affiliated with the Investment
Adviser.
Any delegation of services pursuant to this Section
3(b) shall be subject to the following conditions:
1. Any
fees or compensation payable to any Sub-Adviser shall be paid by the Investment Adviser and no additional obligation may be incurred on
the Fund’s behalf to any Sub-Adviser; except that any Fund expenses that may be incurred by the Investment Adviser and paid by the
Fund to the Investment Adviser directly may be incurred by the Sub-Adviser and paid by the Fund to the Sub-Adviser directly, so long as
such payment arrangements are approved by the Fund and the Investment Adviser prior to the Sub-Adviser’s incurring such expenses.
2. If
the Investment Adviser delegates its responsibilities to more than one Sub-Adviser, the Investment Adviser shall be responsible for assigning
to each Sub-Adviser that portion of the assets of the Portfolio for which the Sub-Adviser is to act as Sub-Adviser, subject to the approval
of the Fund’s Board of Directors.
3. To
the extent that any obligations of the Investment Adviser or any Sub-Adviser require any service provider of the Fund or the Portfolio
to furnish information or services, such information or services shall be furnished by the Fund’s or the Portfolio’s service
providers directly to both the Investment Adviser and any Sub-Adviser.
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 and
self-regulatory organizations having jurisdiction over the Portfolio and/or 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 directors, 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 directors, 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 directors, 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 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 31a-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 31a-2 under the 1940 Act the records required to be maintained by
Rule 31a-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. In addition, for no
additional compensation, the Investment Adviser shall pay all of the other operating expenses of the Portfolio, excluding: (i) its
advisory fees payable under this Agreement; (ii) distribution fees and expenses paid by the Fund under any distribution plan adopted
pursuant to Rule 12b-1 under the 1940 Act; (iii) interest expenses; (iv) brokerage expenses, trading expenses and other expenses
(such as stamp taxes) in connection with the execution of portfolio transactions or in connection with creation and redemption transactions;
(v) tax expenses (including any income or franchise taxes) and governmental fees; and (vi) extraordinary expenses, such
as litigation costs and other expenses not incurred in the ordinary course of business.
General expenses of the Fund not readily identifiable
as belonging to an investment 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 and such expenses will be borne by the Investment
Adviser or Portfolio in accordance with this Section 8.
SECTION 9. VOTING. The Investment Adviser shall have
the authority to vote as agent for the Portfolio, 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. 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 suggest an affiliation with
the Investment Adviser.
SECTION 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 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 0.39%
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 the assets of the Portfolio and not against the assets of any other investment portfolio of the Fund. The Investment
Adviser may from time to time agree not to impose all or a portion of its fee otherwise payable hereunder (in advance of the time such
fee or portion thereof would otherwise accrue) and/or undertake to pay or reimburse the Portfolio for all or a portion of its expenses
not otherwise required to be borne or reimbursed by the Investment Adviser.
SECTION 12. 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 Portfolio 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 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 12 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 terms “F/m”, “Genoa” or “North Slope” in the name of the Portfolio.
SECTION 13. 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, 2025. 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 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, unless otherwise permitted by the 1940 Act, 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 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.
SECTION 16. NOTICE. All notices hereunder shall be
given in writing and delivered by hand, national overnight courier, facsimile (provided written confirmation of receipt is obtained and
said notice is sent via first class mail on the next business day) or mailed by certified mail, return receipt requested, as follows:
If to the Fund:
The RBB Fund, Inc
c/o US Bancorp Fund Services, LLC
000 X. Xxxxxxxx Xx.
Milwaukee, WI 53202
Attention:
If to the Investment Adviser:
F/M Investments, LLC d/b/a North Slope Capital, LLC
0000 X Xxxxxx XX
Suite W-201
Washington, DC 20007
Attention:
The effective date of any notice shall be (i) the date
such notice is sent if such delivery is effected by hand or facsimile, (ii) one business day after the date such notice is sent if such
delivery is effected by national overnight courier; or (iii) the fifth (5th) Business Day after the date of mailing thereof.
SECTION 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.
SECTION 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.
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THE RBB FUND, INC. |
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By: |
/s/ Xxxxx X. Xxxx |
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Name: |
Xxxxx X. Xxxx |
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Title: |
Chief Financial Officer, Chief Operating Officer & Secretary |
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F/M INVESTMENTS, LLC d/b/a NORTH SLOPE CAPITAL, LLC |
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By: |
/s/ Xxxxxxxxx Xxxxxx |
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Name: |
Xxxxxxxxx Xxxxxx |
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Title: |
President |
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