INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 1st day of February, 2005 by and between BNY
Xxxxxxxx Small Cap Core Equity Fund (the "Series"), a series of BNY Xxxxxxxx
Funds, Inc., a Maryland corporation (the "Corporation") and The Bank of New
York, a New York bank (the "Adviser").
1. Duties of Adviser. The Series hereby appoints the Adviser to act as
investment adviser to the Series for the period and on such terms as are set
forth in this Agreement. The Series employs the Adviser to manage the investment
and reinvestment of the assets of the Series, to continuously review, supervise
and administer the investment program of the Series, to determine in its
discretion the securities to be purchased or sold and the portion of the Series'
assets to be held uninvested, to provide the Corporation with records concerning
the Adviser's activities which the Corporation is required to maintain, and to
render regular reports to the Corporation's officers and Board of Directors
concerning the Adviser's discharge of the foregoing responsibilities. The
Advisor shall discharge the foregoing responsibilities subject to the control of
the officers and the Board of Directors of the Corporation, and in compliance
with the objectives, policies and limitations set forth in the Corporation's
Registration Statement (No. 811-6654), including the Series' prospectus and
statement of additional information, applicable laws and regulations. The
Adviser accepts such employment and agrees to render the services and to
provide, at its own expense, the office space, furnishings and equipment and the
personnel required by it to perform the services on the terms and for the
compensation provided therein.
2. Portfolio Transactions. The Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of securities for
the Series and is directed to use its best efforts to obtain the best available
price and most favorable execution, except as prescribed herein. Unless and
until otherwise directed by the Board of Directors of the Corporation, the
Adviser may also effect individual securities transactions at commission rates
in excess of the minimum commission rates available, if the Adviser determines
in good faith that such amount of commission is reasonable in relation to the
value of the brokerage or research services provided by such broker or dealer,
viewed in terms of either that particular transaction or the Adviser's overall
responsibilities with respect to the Corporation. The execution of such
transactions shall not be deemed to represent an unlawful act or breach of any
duty created by this Agreement or otherwise. The Adviser will promptly
communicate to the officers and Directors of the Corporation such information
relating to Series transactions as they may reasonably request.
3. Compensation of the Adviser. For the services to be rendered by the
Adviser as provided in Section 1 of this Agreement, the Corporation shall pay to
the Adviser at the end of each month an advisory fee accrued daily and payable
monthly based on an annual percentage rate of 0.75% of the Series' average daily
net assets.
In the event of termination of this Agreement, the fee provided in
this Section shall be computed on the basis of the period ending on the last
business day on which this Agreement is in effect, subject to a pro rata
adjustment based on the number of days elapsed in the month as a percentage of
the total number of days in such month.
2
4. Reports. The Series and the Adviser agree to furnish to each other
current prospectuses, proxy statements, reports to shareholders, certified
copies of their financial statements, and such other information with regard to
their affairs as each may reasonably request.
5. Status of Adviser. The services of the Adviser to the Series are
not to be deemed exclusive, and the Adviser shall be free to render similar
services to others.
6. Liability of Adviser. In the absence of (i) wilful misfeasance, bad
faith or gross negligence on the part of the Adviser in performance of its
obligations and duties hereunder, (ii) reckless disregard by the Adviser of its
obligations and duties hereunder, or (iii) a loss resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services (in
which case any award of damages shall be limited to the period and the amount
set forth in Section 36(b)(3) of the Investment Company Act of 1940 ("1940
Act"), the Adviser shall not be subject to any liability whatsoever to the
Series, or to any shareholder of the Series, for any error of judgment, mistake
of law or any other act or omission in the course of, or connected with,
rendering services hereunder including, without limitation, for any losses that
may be sustained in connection with the purchase, holding, redemption or sale of
any security on behalf of the Series.
7. Permissible Interests. Subject to and in accordance with the
Articles of Incorporation of the Corporation and applicable law and regulation,
Directors, officers, agents and shareholders of the Corporation are or may be
interested in the Adviser (or any successor thereof) as Directors, officers,
agents, shareholders or otherwise; Directors, officers, agents and shareholders
of the Adviser are or may be interested in the
3
Corporation as Directors, officers, shareholders or otherwise; and the Adviser
(or any successor) is or may be interested in the Corporation as a shareholder
or otherwise; and the effect of any such interrelationships shall be governed by
said Articles of Incorporation and the provisions of the 1940 Act.
8. Duration and Termination. This Agreement, unless sooner terminated
as provided herein, shall continue until the earlier of June 30, 2006 or the
date of the first annual or special meeting of the shareholders of the Series,
and thereafter shall continue for periods of one year so long as 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 Corporation 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 Corporation or by vote of a majority of the
outstanding voting securities of the Series. This Agreement may be terminated by
the Series at any time, without the payment of any penalty, by vote of a
majority of the entire Board of Directors of the Corporation or by vote of a
majority of the outstanding voting securities of the Series on 60 days' written
notice to the Adviser. This Agreement may be terminated by the Adviser at any
time, without the payment of any penalty, upon 60 days' written notice to the
Series. This Agreement will automatically and immediately terminate in the event
of its assignment. Any notice under this Agreement shall be given in writing,
addressed and delivered or mailed postpaid, to the other party at any office of
such party and shall be deemed given when received by the addressee.
As used in this Section 9, the terms "assignment", "interested
persons", and
4
"a vote of a majority of the outstanding voting securities" shall
have the respective meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act.
9. Amendment of Agreement. This Agreement may be amended by mutual
consent, but the consent of the Series must be approved (a) by vote of majority
of those members of the Board of Directors of the Corporation 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 amendment, and (b)
by vote of a majority of the outstanding voting securities of the Series.
10. Use of Name. The Series agrees that if this Agreement is
terminated and the Adviser shall no longer be the adviser to the Series, the
Series will, within a reasonable period of time, change its name to delete
reference to "BNY Xxxxxxxx".
11. Severability. If any provisions 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.
5
12. Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of New York, provided, however, that nothing herein
shall be construed as being inconsistent with the 1940 Act.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their officers thereunto duly authorized as of the day and year
first written above.
XXX XXXX XX XXX XXXX XXX XXXXXXXX FUNDS, INC.
For SMALL CAP CORE EQUITY FUND
By By
------------------------------------ -----------------------------------
Name: Name:
Title: Title:
6
