INVESTMENT COUNSEL AGREEMENT
between
XXXXX & XXXXXX, INC.
and
XXXXXXXXX CAPITAL MANAGEMENT, INC.
THIS AGREEMENT by and between XXXXX & XXXXXX, INC., a Missouri
corporation with its principal office at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, XX
00000 (hereinafter referred to as the "Manager") and XXXXXXXXX CAPITAL
MANAGEMENT, INC., a Kansas corporation with its principal xxxxxx xx XXX
Xxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (hereinafter referred to as the
"Investment Counsel"), is made pursuant to the approval and direction of the
parties' respective Board of Directors and may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one instrument.
WITNESSETH:
WHEREAS, the Manager has entered into a Management Agreement with the
BUFFALO SMALL CAP FUND, INC. ("Fund") of concurrent date to provide management
services, including investment advisory services, the Manager desires the
assistance of the Investment Counsel which can supply the following services:
Research, analysis, advice and recommendations with respect to the
purchase and sale of securities and the making of investment commitments;
statistical information and reports as may reasonably be required, and general
assistance in the supervision of the investments of the Fund, subject to the
control of the Directors of the Fund and the Directors of XXXXX & BABSON, INC.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. During the term of this Agreement, or any extension or extensions
thereof, the Investment Counsel will, to the best of its ability, furnish the
foregoing services.
2. As compensation, the Manager will pay Investment Counsel for its
services the following annual fee computed daily as determined by the Fund's
price make-up sheet and which shall be payable monthly or at such other
intervals as agreed by the parties.
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a. fifty one-hundredths of one percent (50/100%) of the average daily
total net assets of the Fund.
3. This Agreement shall become effective and run concurrently with the
Management Agreement of the same date between the Manager and the Fund, an
executed copy of which shall be supplied the Investment Counsel.
4. The last day of the initial period of this Agreement shall coincide
with the last day of the Management Agreement which shall be the 31st day of
October, 1999. Thereafter this Agreement may be renewed in conjunction with the
Management Agreement for successive periods not exceeding one year only so long
as such renewal and continuance is specifically approved at least annually by
the Board of Directors of the Fund or by a vote of the majority of the
outstanding voting securities of the Fund as prescribed by the Investment
Company Act of 1940 ("Act") and provided further that such continuance is
approved at least annually thereafter by a vote of a majority of the Directors
who are not parties to such Agreement or interested persons (as defined by the
Act) of such party, cast in person at a meeting called for the purpose of voting
on such approval. The Investment Counsel shall provide the Manager such
information as may be reasonably necessary to assist the Directors of the Fund
to evaluate the terms of the Management Agreement. This Agreement automatically
will terminate with the Management Agreement without the payment of any penalty,
upon sixty days written notice by the Fund to the Manager that the Board of
Directors or the shareholders by vote of a majority of the outstanding voting
securities of the Fund, as provided by the Act, has terminated the Management
Agreement. This Agreement shall automatically terminate in the event of its
assignment or assignment of the Management Agreement unless such assignment is
approved by the Directors and the shareholders of the Fund as hereinbefore
provided or unless an exemption is obtained from the Securities and Exchange
Commission from the provisions of the Act pertaining to the subject matter of
this paragraph. The Manager shall promptly notify the Investment Counsel of any
notice of termination or of any circumstances which are likely to result in a
termination of the Management Agreement.
5. It is understood and agreed that the services to be rendered by the
Investment Counsel to the Manager under the provisions of this Agreement are not
to be deemed to be exclusive, and the Investment Counsel shall be free to render
similar or different services to others so long as its ability to render the
services provided for in this Agreement shall not be impaired thereby, and
provided further that the services to be rendered by the Investment Counsel to
the Manager under this Agreement and the compensation provided for in Paragraph
2 here of shall be limited solely to services with reference to the Fund.
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6. The Manager agrees that it will furnish currently to Investment
Counsel all information reasonably necessary to permit Investment Counsel to
give the advice called for under this Agreement and such information with
reference to the Fund that is reasonably necessary to permit Investment Counsel
to carry out its responsibilities under this Agreement, and the parties agree
that they will from time to time consult and make appropriate arrangements as to
specific information that it is required under this paragraph and the frequency
and manner with which it shall be supplied.
7. The Investment Counsel shall not be liable for any error of judgment
or mistake at law or for any loss suffered by Manager of the Fund in connection
with any matters to which this Agreement relates except that nothing herein
contained shall be construed to protect the Investment Counsel against ant
liability by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reckless disregard of its obligations or duties
under this agreement.
8. In compliance with the provisions of the Management Agreement
between the Fund and XXXXX & XXXXXX, INC., Investment Counsel agrees with the
Manager that subject to the terms and conditions of this Paragraph 8, the Fund
may use the name of "BUFFALO" as part of its name so long as XXXXX & BABSON,
INC., or any successor in interest, continues as Manager. Should the Fund
terminate XXXXX & XXXXXX, INC., or its successor as Manager, XXXXX & BABSON,
INC., or its successor in interest, may elect to notify the Fund in writing that
permission to use the name "BUFFALO" has been withdrawn. It is understood that
the Fund has, in its Management Agreement with XXXXX & XXXXXX, INC., expressly
agreed that it, its officers, directors and shareholders will take all necessary
corporate action and proceed expeditiously to change the name of the Fund and
not use any other name or take any action which would indicate the Fund's
continued association with the Manager. If the use of the name "BUFFALO" is so
withdrawn as aforesaid, it is understood and agreed that there shall be no
limitation with respect to the future use of the name "BUFFALO" by the Manager,
or its successor in interest.
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Each party hereby executes this Agreement as of the ____ day of
_______________, 1997, pursuant to the authority granted by its Board of
Directors.
XXXXXXXXX CAPITAL MANAGEMENT, INC.
By
ATTEST:
XXXXX & XXXXXX, INC.
By
ATTEST:
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