INVESTMENT ADVISORY AGREEMENT
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n/i Small Cap Value Fund
AGREEMENT made as of November 30, 1998 between THE RBB FUND, INC., a
Maryland corporation (herein called the "Fund"), and Numeric Investors L.P.
(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 twenty-five
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 n/i
Small Cap Value Fund (the "Portfolio"), and the Investment Adviser 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 Adviser to
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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.
2. Delivery of Documents. The Fund has furnished the Investment
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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 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 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.
3. Management of the Portfolio. Subject to the supervision of the
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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 the Statement of Additional Information, provided that the
Investment Adviser has actual or constructive 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.
4. Brokerage. Subject to the Investment Adviser's obligation to
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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 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.
5. Conformity with Law; Confidentiality. The Investment Adviser
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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 clients of the Investment Adviser and its affiliates), 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.
6. Services Not Exclusive. The Investment Adviser and its officers
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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 Paragraph 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
Paragraph 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 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
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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.
8. Expenses. During the term of this Agreement, the Investment
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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
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 Adviser 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 of
the Portfolio; provided, however, that notwithstanding the foregoing, the
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Investment Adviser 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 Adviser shall have the authority to vote
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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 Adviser shall at all times
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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.
11. Discontinuation of Public Offering. Subject to the prior
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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 effect 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.
12. Compensation.
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(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 .75% 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.
13. Limitation of Liability of the Investment Adviser. The
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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 Portfolio 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.
14. Duration and Termination. This Agreement shall become effective
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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, 1999. 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
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(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
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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).
15. Amendment of this Agreement. No provision of this Agreement may
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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.
16. Miscellaneous. The captions in this Agreement are included for
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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.
17. Change in Membership. The Investment Adviser shall notify the
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Fund of any change in its membership within a reasonable time after such change.
18. Counterparts. This agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the laws of the state of Delaware without giving
effect to the conflicts of laws principles thereof.
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/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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NUMERIC INVESTORS L.P.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President, WBE & Associates, LLC
General Partner of
Numeric Investors L.P.