EX99.23(d)(1)
MANAGEMENT AGREEMENT
Between
XXXXX & XXXXXX, INC.
and
BABSON ENTERPRISE FUND II, INC.
THIS AGREEMENT, made and entered into this 30th day of June, 1995,
by and between BABSON ENTERPRISE FUND II, INC., (a Maryland corporation,
hereinafter referred to as the "Fund") and XXXXX & XXXXXX, INC., a
corporation organized under the laws of the State of Missouri
(hereinafter referred to as the "Manager"), and which Agreement 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.
WHEREAS the Fund was founded and incorporated by the Manager for
the purpose of engaging in the business of investing and reinvesting its
property and assets and to operate as an open-end diversified,
management investment company, as defined in the Investment Company Act
of 1940 as amended (Act), under which it is registered with the
Securities and Exchange Commission, and
WHEREAS the Manager was formed for and is engaged in the business
of supplying investment advice and management service to the Fund, as an
independent contractor and,
WHEREAS the Manager desires to enter into a contractual
arrangement whereby the Manager provides investment advice and
management service to the Fund for a fee.
NOW THEREFORE, in consideration of the mutual promises herein
contained, and other good and valuable consideration, receipt of which
is hereby acknowledged, it is mutually agreed and contracted by and
between the parties hereto that:
1. The Fund hereby employs the Manager, for the period set forth
in Paragraph 5 hereof, and on the terms set forth herein, to render
investment advice and management service to the Fund, subject to the
supervision and direction of the Board of Directors of the Fund. The
Manager hereby accepts such employment and agrees, during such period,
to render the services and assume the obligations herein set forth, for
the compensation herein provided. The Management shall, for all purposes
herein, be deemed to be an independent contractor, and shall, except as
provided in the Underwriting Agreement between the Manager and the Fund
or unless otherwise expressly provided and authorized, have no authority
to act for or represent the Fund in any way, or in any other way be
deemed an agent of the Fund.
The Manager shall furnish the Fund investment management and
administrative services. Investment management shall include analysis,
research and portfolio recommendations consistent with the Fund's
objectives and policies. Administrative services shall include the
services and compensation of such members of the Manager's organization
as shall be duly elected officers and/or Directors of the Fund and such
other personnel as shall be necessary to carry out its normal
operations; fees of the independent Directors, the custodian, the
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independent public accountant, investment counsel and legal counsel (but
not legal and audit fees and other costs in contemplation of or arising
out of litigation or administrative actions to which the Fund, its
officers or Directors are a party or incurred in anticipation of
becoming a party); rent; the cost of a transfer and dividend disbursing
agent or similar in-house services; bookkeeping; accounting; and all
other clerical and administrative functions as may be reasonable and
necessary to maintain the Fund's records and for it to operate as an
open-end management investment company. Exclusive of the management
fee, the Fund shall bear the cost of any interest, taxes, dues, fees and
other charges of governments and their agencies including the cost of
qualifying the Fund's shares for sale in any jurisdiction, brokerage
commissions, or any other expenses incurred by it which are not assumed
herein by the Manager.
All property, equipment and information used by the Manager in the
management and administration of the Fund shall belong to the Manager.
Should the management and administrative relationship between the Fund
and the Manager terminate, the Fund shall be entitled to, and the
Manager shall provide the Fund, a copy of all information and records in
the Manager's file necessary for the Fund to continue its functions,
which shall include computer systems and programs in use as of the date
of such termination; but nothing herein shall prohibit thereafter the
use of such information, systems or programs by the Manager, so long as
such does not unfairly interfere with the continued operation of the
Fund.
2. As compensation for the services to be rendered to the Fund by
the Manager under the provisions of this agreement, the Fund agrees to
pay semimonthly to the Manager an annual fee based on the average total
net assets of the Fund computed daily in accordance with its Certificate
of Incorporation and By-Laws as follows:
a. Eighty-five one-hundredths of one percent (85/100 of 1%) of
the average total net assets of the Fund that do not exceed two hundred
fifty million dollars ($250,000,000).
b. Seventy one-hundredths (70/100 of 1%) of the average total net
assets of the Fund that exceed two hundred fifty million dollars
($250,000,000).
c. Should the Fund's normal operating expenses except for taxes,
fees and other charges of governments and their agencies including the
cost of qualifying the Fund's shares for sale in any jurisdiction,
interest, brokerage commissions and costs arising out of litigation or
administrative actions, all as described in paragraph 1, exceed the
limits set out in sub-paragraphs a and b of this paragraph 2, the
Investment Manager shall reimburse the Fund in the amount of the excess.
3. It is understood and agreed that the services to be rendered
by the Manager to the Fund under the provisions of the Agreement are not
to be deemed exclusive, and the Manager 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.
4. It is understood and agreed that the Directors, officers,
agents, employees, and shareholders of the Fund may be interested in the
Manager as owners, employees, agents or otherwise, and that owners,
employees and agents of the Manager may be interested in the Fund as
shareholders or otherwise. It is understood and agreed that
shareholders, officers, Directors, and other personnel of the Manager
are and may continue to be officers and Directors of the Fund, but that
they receive no remuneration from the Fund solely for acting in those
capacities.
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5. This Agreement shall be executed and become effective pursuant
to its approval by the Fund's Board of Directors and by the vote of a
majority of the outstanding shares of the Fund as prescribed by the Act.
It shall remain in force through the 31st day of October, 1996, and
thereafter may be renewed 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 or by vote of a majority of the
outstanding shares of the Fund as prescribed by the Act, and only if the
terms and the renewal of this Agreement have been approved by a vote of
a majority of the Directors of the Fund including a majority of the
Directors who are not parties to the Agreement or interested persons of
any such party, cast in person at a meeting called for the purpose of
voting on such approval. No amendment to this Agreement shall be
effective unless the terms thereof have been approved by the vote of a
majority of outstanding shares of the Fund as prescribed by the Act and
by vote of a majority of the Directors of the Fund who are not parties
to the Agreement or interested persons of any such party, cast in person
at a meeting called for the purpose of voting on such approval. It shall
be the duty of the Directors of the Fund to request and evaluate, and
the duty of the Manager to furnish, such information as may reasonably
be necessary to evaluate the terms of this Agreement and any amendment
thereto. This Agreement may be terminated at any time, without the
payment of any penalty, by the Directors of the Fund, or by the vote of
a majority of the outstanding voting shares of the Fund as prescribed by
the Act on not more than sixty days written notice to the Manager, and
it may be terminated by the Manager upon not less than sixty days
written notice to the Fund. It shall terminate automatically in the
event of its assignment by either party unless the parties hereby, by
agreement, obtain an exemption from the Securities and Exchange
Commission from the provisions of the Act pertaining to the subject
matter of this paragraph. Any notice, request or instruction provided
for herein, or for the giving of which, the occasion may arise
hereunder, shall be deemed duly given, if in writing and mailed by
registered mail, postage prepaid, addressed to the regular executive
office of the Fund or the Manager as the case may be. As used in this
Agreement, the terms "assignment", "a majority of the outstanding voting
shares", and "interested persons" shall have the same meaning as
similar terms contained in the Act.
6. It is specifically provided in this Agreement that the Manager
is to secure the services of XXXXX X. XXXXXX & CO. INC. of Cambridge,
Massachusetts (at the sole expense of the Manager), as its Investment
Counsel to furnish advice and recommendations with respect to the
purchase and sale of securities and the making of portfolio commitments;
to place at the disposal of the Manager such statistical information as
may reasonably be required and in general to superintend the investments
of the Fund, subject to the control and approval of the Board of
Directors of the Manager and the Board of Directors of the Fund.
7. As a condition of this agreement, the Manager will provide in
its Investment Counsel agreement with XXXXX X. XXXXXX & CO. INC. for the
exclusive right of the Fund to use the name "Babson" as part of its
name, so long as XXXXX & XXXXXX, INC., or any successor in interest,
continues as its Manager and XXXXX X. XXXXXX & CO. INC., or any
successor in interest, continues as an Investment Counsel to the
Manager. The term "exclusive right of the Fund" appearing in the
preceding sentence means that no other investment company, whether or
not registered under the Investment Company Act of 1940, as amended,
will be entitled to use the precise name "Babson" so long as the Fund
has the right to use it as a part of its name. However, nothing herein
shall prohibit the right of XXXXX & XXXXXX, INC., Xx. Xxxxxx, or XXXXX
X. XXXXXX & CO. INC. from granting to another investment company managed
by XXXXX & BABSON, INC. with XXXXX X. XXXXXX & CO. INC. as its
Investment Counsel,
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and which has investment objectives and policies
different from those of the Fund, to use in its name either the name
"Babson" or "X. X. Xxxxxx" or "Xxxxxx (X. X.)" or "Xxxxx & Xxxxxx" or
any combination of these names. Should the Fund terminate either XXXXX
& BABSON, INC. or its successor as Manager for the Fund, or XXXXX X.
XXXXXX & CO. INC., or its successor, as its Investment Counsel, either
XXXXX & BABSON, INC. or XXXXX X. XXXXXX & CO. INC., or their respective
successors in interest, may elect to notify the Fund in writing that
permission to use the name "Xxxxx X. Xxxxxx" (or any part thereof) has
been withdrawn, whereupon the Fund, its officers, directors and
shareholders, expressly agree to take all necessary corporate action and
to proceed expeditiously to change the name of the Fund and not use any
other name or take any other action which would indicate the Fund's
continued association with XXXXX X. XXXXXX & CO. INC., Xx. Xxxxxx, or
XXXXX & XXXXXX, INC. If the use of the name "Xxxxx X. Xxxxxx" (or any
part thereof) is so withdrawn as aforesaid, the Fund, its officers,
directors and shareholders, understand and agree that there shall be no
limitation with respect to the future use of the name "Xxxxx X. Xxxxxx"
(or any part thereof) by XXXXX X. XXXXXX & CO. INC., or its successor in
interest, or with the permission of XXXXX X. XXXXXX & CO. INC., or its
successor, by XXXXX & BABSON, INC. or its successor.
8. The agreement between XXXXX & XXXXXX, INC. and XXXXX X. XXXXXX
& CO. INC. also shall provide that, although it is not anticipated,
there may occur some unforeseen reason which would prohibit XXXXX X.
XXXXXX & CO. INC., as a matter of reasonable business necessity,
continuing as an Investment Counsel to XXXXX & BABSON, INC. Should such
circumstances occur, BABSON ENTERPRISE FUND II, INC., or its successor
may elect to terminate its services, even though the Fund would want to
continue to use the name "Babson" and continue XXXXX & XXXXXX, INC., or
its successor, as Manager. Upon receipt of such a written notice, the
Fund, its officers, directors and shareholders, agree to take all
necessary corporate action and proceed expeditiously to change the name
of the Fund not later than one year after the effective date of the
termination notice, and not use any other name or take any other action
which would indicate the Fund's continued association with XXXXX X.
XXXXXX & CO. INC., Xx. Xxxxxx or XXXXX & XXXXXX, INC. In consideration
for this right, XXXXX X. XXXXXX & CO. INC. and XXXXX & XXXXXX, INC.
agree that should the name "Babson" be withdrawn, they will not permit
another investment company, whether or not registered under the
Investment Company Act of 1940, to use the name "Babson" as part of its
name for a period of five years subsequent to the effective date of the
written withdrawal request, unless this prohibition is waived or
modified by a majority vote of the Fund's shareholders entitled to vote
at the next annual meeting of the Fund's shareholders following receipt
of the request, and if any such action is also approved by the majority
of shares entitled to vote at a duly constituted meeting of the
shareholders of XXXXX & XXXXXX, INC. For this right to withdraw the
name "Babson" from the use of the Fund, XXXXX X. XXXXXX & CO. INC. will
agree in its contract with XXXXX & BABSON, INC. that it will not compete
with XXXXX & XXXXXX, INC. for the management of the Fund during said
five-year period, unless this no-compete provision is waived by a
majority of the shares entitled to vote at a duly constituted meeting of
the shareholders of XXXXX & BABSON, INC.
9. It is further agreed that the provisions of Paragraphs 7 and 8
shall inure to the benefit of XXXXX X. XXXXXX & CO. INC. and may be
imposed by it or any successor in interest as if it or such successor in
interest were parties to this Agreement.
10. The Manager shall not be liable for any error in judgment or
mistake at law for any loss suffered by the Fund in connection with any
matters to which this Agreement relates, except
PAge 4 of 5
that nothing herein
contained shall be construed to protect the Investment Manager against
any liability by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reckless disregard of its
obligations or duties under this Agreement.
11. This Agreement may not be amended, transferred, assigned,
sold or in any manner hypothecated or pledged nor may any new Agreement
become effective without affirmative vote or written consent of the
holders of a majority of the shares of the Fund.
BABSON ENTERPRISE FUND II, INC.
By/s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
President
ATTEST:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Vice President and Secretary
XXXXX & BABSON, INC.
By/s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
ATTEST:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Vice President and Secretary
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