EX99.23(d)(2)
INVESTMENT COUNSEL AGREEMENT
Between
XXXXX & XXXXXX, INC.
and
XXXXX X. XXXXXX & CO. INC.
THIS AGREEMENT by and between XXXXX & XXXXXX, INC., a Missouri
corporation with its principal office at Three Crown Center, 0000 Xxxxxxxx
Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (hereinafter referred to as the
"Manager"), and XXXXX X. XXXXXX & CO. INC., a Massachusetts corporation with
its principal office at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(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 X.
X. XXXXXX BOND TRUST (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 Trustees of the Fund and the Directors of XXXXX & XXXXXX, 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.
a. Twenty-five one-hundredths of one percent (25/100 of 1%) 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.
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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, 1996. 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 Trustees 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 Trustees
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 Trustees 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 Trustees 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 Trustees and the
shareholders of the Fund as herein before 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 hereof shall be limited solely to services with
reference to the Fund.
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 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 any 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.
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8. In compliance with the provisions of the Management Agreement between
the Fund and XXXXX & XXXXXX, INC., Investment Counsel agrees with Manager that
subject to the terms and conditions of this Paragraph 8, the Fund may use the
name of "Xxxxx X. Xxxxxx" (or any part thereof) as part of its name so long
as XXXXX & XXXXXX, INC., or any successor in interest, continues as Manager
and XXXXX X. XXXXXX & CO. INC., or any successor in interest, continues as
Investment Counsel. Should the Fund terminate either XXXXX & XXXXXX, INC., or
its successor as Manager, or XXXXX X. XXXXXX & CO. INC., or its successor as
Investment Counsel, either XXXXX & XXXXXX, 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. It is understood that the Fund has, in its
Management Agreement with XXXXX & BABSON, 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 XXXXX X. XXXXXX & CO. INC. If the use of the name "Xxxxx X. Xxxxxx" (or
any part thereof) 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
"Xxxxx X. Xxxxxx" (or any part thereof) by XXXXX X. XXXXXX & CO. INC., or its
successor in interest, or by XXXXX & XXXXXX, INC. or its successor in
interest.
9. 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 Investment Counsel. Should such
circumstances occur, XXXXX X. XXXXXX & CO. INC., or its successor may elect to
terminate its services, even though the Fund would want to continue to use the
name "Xxxxx X. Xxxxxx" (or any part thereof) and continue XXXXX & XXXXXX,
INC., or its successor, as manager with XXXXX X. XXXXXX & CO. INC., or its
successor, as Investment Counsel. Upon receipt of such a written notice, the
Fund, its officers, directors and shareholders, have agreed in the Management
Agreement between the Fund and XXXXX & XXXXXX, INC., for the benefit of XXXXX
X. XXXXXX & CO. INC., to take all necessary corporate action and proceed
expeditiously to change the name of the Fund (but if necessary, take up to one
year from the effective date of the termination of the Management Agreement)
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. In consideration
for this right, XXXXX X. XXXXXX & CO. INC. agrees that should it so request
the withdrawal of the name "Xxxxx X. Xxxxxx" (or any part thereof) it will not
permit another investment company, whether or not registered under the
Investment Company Act of 1940, to use the name "Xxxxx X. Xxxxxx" (or any part
thereof) 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 a duly constituted 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
"Xxxxx X. Xxxxxx" (or any part thereof) from the use of the Fund, XXXXX X.
XXXXXX & CO. INC. agrees that it will not compete with XXXXX & BABSON, 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
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constituted meeting of the shareholders of XXXXX & XXXXXX, INC.
Each party hereby executes this Agreement as of the 30th day of June,
1995, pursuant to the authority granted by its Board of Trustees.
XXXXX X. XXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
ATTEST:
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
XXXXX & XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
ATTEST:
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
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