INVESTMENT ADVISORY AGREEMENT
Dynamic U.S. Growth Fund
AGREEMENT made as of March 21, 2014 between THE RBB FUND,
INC., a Maryland corporation (herein called the "Company"), and
Scotia Institutional Asset Management US, Ltd., an Ontario
company (herein called the "Investment Adviser").
WHEREAS, the Company 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 Company desires to retain the Investment
Adviser to render certain investment advisory services to the
Company with respect to the Company's Dynamic U.S. Growth Fund
(the "Fund"), and the Investment Adviser is willing to so render
such services; and
WHEREAS, the Board of Directors of the Company and the sole
shareholder of the Fund 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 Company hereby appoints the
Investment Adviser to act as investment adviser for the Fund 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 Company 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 Company
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
Fund of the Company 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 Company 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 Company will also provide
the Investment Adviser with copies of the Company's Charter and
By-laws, and any registration statement or service contracts
related to the Fund, 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 Company and subject to Section 3 (b) below, the
Investment Adviser will provide for the overall management of
the Fund including (i) the provision of a discretionary
continuous investment program for the Fund, including investment
research and management with respect to all securities,
investments, cash and cash equivalents in the Fund, (ii) the
determination of the securities and other investments to be
purchased, retained, or sold by the Company for the Fund, and
(iii) the placement of orders for all purchases and sales made
for the Fund. 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 Fund's
investment objective, 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 Company'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 Company (or its agents and service providers)
prompt and accurate data with respect to the Fund's transactions
and, where not otherwise available, the daily valuation of
securities in the Fund.
(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
Company and the shareholders of the Fund), subject, however, to
such exemptions as may be granted by the U.S. Securities and
Exchange Commission 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 Company's behalf to any
Sub-Adviser; except that any Company expenses that may be
incurred by the Investment Adviser and paid by the
Company to the Investment Adviser directly may be
incurred by the Sub-Adviser and paid by the Company to
the Sub-Adviser directly, so long as such payment
arrangements are approved by the Company 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 Fund
for which the Sub-Adviser is to act as Sub-Adviser,
subject to the approval of the Company'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 Company or Fund to furnish information or
services, such information or services shall be furnished
by the Company's or the Fund'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 Fund, 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 Fund directly or indirectly. Without
limiting the generality of the foregoing, the Investment Adviser
is authorized to cause the Fund to pay brokerage commissions
which may be in excess of the lowest rates available to brokers
who execute transactions for the Fund 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 Fund over a period of time on a fair and equitable basis
relative to other clients. In no instance will the Fund's
securities be purchased from or sold to the Company'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 Company 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 Company and the Investment
Adviser's other clients, that the total commissions paid by the
Company were reasonable in relation to the benefits to the
Company 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
Company all records and other information relating to the
Company 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
Company, 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 Company. 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 Company, the Investment
Adviser may comply with such request prior to obtaining the
Company's written approval, provided that the Investment Adviser
has taken reasonable steps to promptly notify the Company, 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 Fund or the Company.
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 other clients and/or its or their own account. The Company
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 Fund. The Investment Adviser shall have no
obligation to acquire for the Fund 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 Company 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 Company 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 Company 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 Fund are the property of the Company and further agrees to
surrender promptly to the Company any of such records upon the
Company's request, provided, however, that the Investment
Adviser may keep a copy of any records that the Investment
Adviser is required to keep under applicable law. 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 Fund
shall bear all of its own expenses not specifically assumed by
the Investment Adviser. General expenses of the Company not
readily identifiable as belonging to an investment portfolio of
the Company shall be allocated among all investment portfolios
by or under the direction of the Company's Board of Directors in
such manner as the Board determines to be fair and equitable.
Expenses borne by the Fund shall include, but are not limited
to, the following (or the Fund's share of the following): (a)
the cost (including brokerage commissions) of securities
purchased or sold by the Fund and any losses incurred in
connection therewith; (b) fees payable to and expenses incurred
on behalf of the Fund by the Investment Adviser; (c) filing fees
and expenses relating to the registration and qualification of
the Company and the Fund's shares under federal and/or state
securities laws and maintaining such registrations and
qualifications; (d) fees and salaries payable to the Company'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 of a liability of or claim for
damages or other relief asserted against the Company or the Fund
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 the Fund's securities; and (p) the costs of investment
company literature and other publications provided by the
Company to its directors and officers. Distribution expenses,
transfer agency expenses, expenses of preparing, 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 Fund's assets may be invested from
time to time, subject to such policies and procedures as the
Board of Directors of the Company may adopt from time to time.
SECTION 10. RESERVATION OF NAME. The Investment Adviser
grants the Company a non-exclusive, limited term license to use
the "Dynamic" name and trademark and/or the "Scotia" name and
trademark (together, the "Marks") as part of the name of the
Fund (and through reference to the Investment Adviser, as
appropriate) and in marketing and other communications for the
sole purpose of selling shares of the Fund and as may be
required pursuant to applicable law and regulation. The term of
the license shall expire immediately upon termination of this
Agreement (provided, however, the Company may be permitted to
continue to reference the name of the Fund as required by
applicable law). The Company shall have no right to sublicense
or assign rights to use the Marks, shall not acquire any rights,
title or interest in the Marks other than as expressly set forth
herein, and all of the Fund's uses of the Marks shall inure to
the benefit of the Investment Adviser (or its affiliates, as
appropriate) as owner and licensor of the Marks, and the Company
shall not take any action to challenge the validity of the Marks
or ownership thereof. The Company further agrees that all
services and products it offers in connection with the Marks
shall meet commercially reasonable standards of quality and any
use of the Marks shall be approved by the Investment Adviser (or
its designee) prior to use. At the reasonable request of the
Investment Adviser, the Company shall cooperate with the owner
of the Marks and shall execute and deliver any and all documents
necessary to maintain and protect (including but not limited to
in connection with any trademark infringement action) the Marks
and/or enter the Company as a registered user thereof. In no
event shall the Company use the Marks or any other name or marks
which may reasonably be confused with the Marks (including, but
not limited to any name or ▇▇▇▇ that includes the name "Dynamic"
or "Scotia") during the term of this Agreement and after this
Agreement or any other investment advisory agreement between the
Investment Adviser and the Company related to the Fund is
terminated.
SECTION 11. COMPENSATION.
(a) For the services provided and the expenses assumed
pursuant to this Agreement with respect to the Fund, the Company
will pay the Investment Adviser from the assets of the Fund and
the Investment Adviser will accept as full compensation therefor
a fee, computed daily and payable monthly in arrears, at the
annual rate of 0.65% of the Fund'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 Fund shall be satisfied
only against the assets of the Fund and not against the assets
of any other investment portfolio of the Company. 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 Fund 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 duties of the
Investment Adviser shall be confined to those expressly set
forth herein and no implied duties are assumed by or may be
asserted against the Investment Adviser hereunder. The
Investment Adviser shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Company 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 Fund will indemnify the Investment Adviser and
each of the Investment Adviser's affiliates, directors,
officers, employees, agents, associates and controlling persons
and the directors, partners, members, officers, employees and
agents thereof (each, an "Indemnitee") 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. All
determinations with respect to Indemnification shall be made:
(i) by a final decision on the merits by a court or other body
before whom the proceeding was brought that the Indemnitee 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 Indemnitee 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 Company nor parties to the proceeding
("disinterested non-party directors") or (b) if such a quorum is
not obtainable or, even if obtainable, if a majority vote of
such quorum so directs, an independent legal counsel in a
written opinion. The Indemnitee shall be entitled to advances
from the Fund 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 Fund a written
affirmation of its good faith belief that the standard of
conduct necessary for indemnification by the Fund 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 reasonably acceptable to
the Fund for its undertaking; (b) the Fund 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 Fund at
the time the advance is proposed to be made, that there is
reason to believe that the Indemnitee will ultimately be found
to be entitled to indemnification. Any amounts payable by the
Fund under this Section 12 shall be satisfied only against the
assets of the Fund and not against the assets of any other
investment portfolio of the Company. The rights accruing to any
Indemnitee under these provisions shall not exclude any other
right to which such Indemnitee may be legally entitled.
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 Fund's name. The Investment
Adviser shall indemnify and hold harmless the Company and the
Fund for any claims arising from the use of the Marks.
SECTION 13. DURATION AND TERMINATION. This Agreement shall
become effective with respect to the Fund as of the date first
above written and, unless sooner terminated as provided herein,
shall continue with respect to the Fund until August 16, 2015.
Thereafter, if not terminated, this Agreement shall continue
with respect to the Fund 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 Company 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 Company or by
vote of a majority of the outstanding voting securities of the
Fund; provided, however, that this Agreement may be terminated
with respect to the Fund by the Company at any time, without the
payment of any penalty, by the Board of Directors of the Company
or by vote of a majority of the outstanding voting securities of
the Fund, 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
Company. 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 Fund shall be
effective until approved by vote of the holders of a majority of
the outstanding voting securities of the Fund.
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 Company:
The RBB Fund, Inc
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the Investment Adviser:
Scotia Institutional Asset Management US, Ltd.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
With a copy to:
Scotia Institutional Asset Management US, Ltd.
c/o Scotia Institutional Investments US, LP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Cousnel
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.
THE RBB FUND, INC.
By: __/s/▇▇▇▇▇▇▇▇▇ Faia_
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
SCOTIA INSTITUTIONAL ASSET MANAGEMENT US, LTD
By: __/s/▇▇▇▇▇ Lacey_
Name:▇▇▇▇▇ ▇▇▇▇▇
Title:President
SCOTIA INSTITUTIONAL ASSET
MANAGEMENT US, LTD
By: __/s/▇▇▇▇ Pereira_
Name:▇▇▇▇ ▇▇▇▇▇▇▇
Title:Director