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AMENDED AND RESTATED
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INVESTMENT ADVISORY AGREEMENT
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Boston Partners All-Cap Value Fund
AGREEMENT made as of December 29, 2003 and amended and
restated as of March 1, 2006, between THE RBB FUND, INC., a Maryland corporation
(herein called the "Fund"), and BOSTON PARTNERS ASSET MANAGEMENT, L.L.C. (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 BOSTON PARTNERS ALL-CAP VALUE 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 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;
(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, 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 and, where not otherwise
available, the daily valuation of securities in the Portfolio.
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
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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 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.
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
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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 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 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.
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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.
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 0.80% 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.
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 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
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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 term "Boston
Partners" in the name of the Portfolio.
SECTION 13. DURATION AND TERMINATION. This Agreement shall
become effective 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, 2006. 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 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 and shall be
governed by Delaware law.
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SECTION 16. CHANGE IN MEMBERSHIP. The Investment Adviser shall
notify the Fund of any change in its membership within a reasonable time after
such change.
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Treasurer
BOSTON PARTNERS ASSET MANAGEMENT, L.L.C.
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO
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