EX99.23(d)(2)
INVESTMENT COUNSEL AGREEMENT
Between
XXXXX & XXXXXX, INC.
and
XXXXX X. XXXXXX & CO. INC.
THIS AGREEMENT made this 30th day of June, 1995 by and between XXXXX &
XXXXXX, INC. (hereinafter referred to as the "Manager"), and XXXXX X. XXXXXX
& CO. INC. (hereinafter referred to as the "Investment Counsel"), 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.
WITNESSETH:
WHEREAS, the Directors of the Manager want to enter into a contract with
the Investment Counsel to render the Manager the following services:
To furnish research, analysis, advice and recommendations with respect
to the purchase and sale of securities and the making of investment
commitments; to place at the disposal of the Manager such statistical
information and reports as may reasonably be required, and in general to
superintend the investments of the BABSON ENTERPRISE FUND, INC. (Fund),
subject to the control of the Directors of the Fund and 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, XXXXX & BABSON, INC. 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. Seventy one-hundredths of one percent (70/100 of 1%) of the average
daily total net assets of the Fund which do not exceed thirty million
dollars ($30,000,000).
b. Fifty one-hundredths of one percent (50/100 of 1%) of the average
daily total net assets of the Fund which exceed thirty million
dollars ($30,000,000).
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3. This Agreement shall become effective concurrently with the
investment Management Agreement between XXXXX & XXXXXX, INC. and the BABSON
ENTERPRISE FUND, INC. pursuant to the approval of the shareholders of the Fund
according to the provisions of the Investment Company Act of 1940 (Act).
4. This Agreement shall continue for a period ending October 31, 1996.
It may be renewed thereafter 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 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 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 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.
5. It is expressly 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 the Manager or 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 Directors.
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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