EX99.23(d)(3)(A)
MANAGEMENT AGREEMENT
Between
XXXXX & XXXXXX, INC.
and
X. X. XXXXXX TAX-FREE INCOME FUND, INC.
THIS AGREEMENT, made and entered into this 30th day of
June, 1995, by and between X. X. XXXXXX TAX-FREE INCOME
FUND, INC., (a Maryland corporation, hereinafter referred to
as the "Fund") and XXXXX & BABSON, 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 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. With respect to Portfolio MM (Money Market): fifty one-
hundredths of one percent (50/100 of 1%) of the average
total net assets of the Fund thereof.
b. With respect to Portfolio S (Shorter Term) and
Portfolio L (Longer Term): ninety-five one-hundredths of one
percent (95/100 of 1%) of the average total net assets of
the Fund thereof.
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.
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, 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, X. X. XXXXXX TAX-FREE INCOME FUND,
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 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.
X. X. XXXXXX TAX-FREE INCOME FUND, 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
President
ATTEST:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Vice President and Secretary
EX99.23(d)(3)(B)
INVESTMENT COUNSEL AGREEMENT
Between
XXXXX & BABSON, INC.
and
XXXXX X. XXXXXX & CO. INC.
THIS AGREEMENT made this 30th day of June, 1995 by and
between XXXXX & BABSON, 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 X. X. XXXXXX TAX-FREE INCOME 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.With respect to Portfolio MM (Money Market): ten one-
hundredths of one percent (10/100 of 1%) of the average
daily total net assets of the Fund.
b.With respect to Portfolio S (Shorter Term) and Portfolio
L (Longer Term): 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 concurrently with
the investment Management Agreement between XXXXX & XXXXXX, INC.
and the X. X. XXXXXX TAX-FREE INCOME 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.
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
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
ATTEST:
/s/ Xxxxx X. Xxxxxx
XXXXX & XXXXXX, INC.
By /s/ Xxxxx X. Xxxxx
ATTEST:
/s/ Xxxxxx X. Xxxxxx
