Exhibit No. EX-99.d.4.b
INVESTMENT COUNSEL AGREEMENT
between
XXXXX & XXXXXX, INC.
and
XXXXXX-XXXXXXX IVORY INTERNATIONAL
THIS AGREEMENT by and between XXXXX & XXXXXX, INC., a Missouri corporation with
its principal office at the BMA Tower, 000 Xxxxxx Xxxxxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000 (hereinafter referred to as the "Manager"), and XXXXXX-XXXXXXX
IVORY INTERNATIONAL, a Massachusetts general partnership 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
XXXXXX-XXXXXXX IVORY INTERNATIONAL FUND, INC. ("Fund") 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
the Manager
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. Four hundred seventy-five one-thousandths of one percent
(475/1000 of 1%) of the average daily total net assets of
the Fund.
3. This Agreement shall become effective upon its approval by
shareholders of the Fund.
4. The initial period of this Agreement shall be two years from
its effectiveness. Thereafter, or at an earlier date determined
by the Board, this Agreement 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 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 and this 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. 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.
8. In compliance with the provisions of the Management Agreement
between the Fund and the Manager, 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 the Manager, or
any successor in interest, continues as Manager and
XXXXXX-XXXXXXX IVORY INTERNATIONAL, or any successor in interest,
continues as Investment Counsel. Should the Fund terminate either
the Manager, or its successor as Manager, or XXXXXX-XXXXXXX IVORY
INTERNATIONAL, or its successor as Investment Counsel, either the
Manager, or XXXXXX-XXXXXXX IVORY INTERNATIONAL, 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 the Manager, 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 XXXXXX-XXXXXXX IVORY INTERNATIONAL. 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 XXXXXX-XXXXXXX IVORY
INTERNATIONAL, or its successor in interest, or by the Manager or
its successor in interest.
9. Although it is not anticipated, there may occur some
unforeseen reason which would prohibit XXXXXX-XXXXXXX IVORY
INTERNATIONAL, as a matter of reasonable business necessity,
continuing as Investment Counsel. Should such circumstances
occur, XXXXXX-XXXXXXX IVORY INTERNATIONAL, 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 to use the Manager, or its successor, as
manager with XXXXXX-XXXXXXX IVORY INTERNATIONAL, 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 the
Manager, for the benefit of XXXXXX-XXXXXXX IVORY INTERNATIONAL,
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
XXXXXX-XXXXXXX IVORY INTERNATIONAL. In consideration for this
right, XXXXXX-XXXXXXX IVORY INTERNATIONAL 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 Act, 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 the Manager. For this right to
withdraw the name "Xxxxx X. Xxxxxx" (or any part thereof) from
the use of the Fund, XXXXXX-XXXXXXX IVORY INTERNATIONAL agrees
that it will not compete with the Manager 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 the Manager.
Each party hereby executes this Agreement as of the 1st day of August, 2000,
pursuant to the authority granted by its Board of Directors.
XXXXXX-XXXXXXX IVORY INTERNATIONAL
By: /s/ Xxxxxxx X.
ATTEST: /s/Xxxxxxx X. Xxxxx
XXXXX & XXXXXX, INC.
By:/s/Xxxxxxx X. Xxxxx
ATTEST: /s/Xxxxxx X. Xxxxxx
