EXHIBIT 4(d)
INVESTMENT ADVISORY AGREEMENT
FOR MCBT PAN EUROPEAN MID CAP FUND
AGREEMENT made this 17th day of August, 2001, by and between Xxxxxx
Xxxxxx Business Trust, an unincorporated business trust organized under the
laws of The Commonwealth of Massachusetts (the "Trust"), on behalf of its
MCBT Pan European Mid Cap Fund series (the "Fund"), and Xxxxxx Xxxxxx Global
Investors Limited, a Scottish corporation (the "Adviser").
W I T N E S S E T H
WHEREAS, the Trust is engaged in business as an open-end series
management investment company and is so registered under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser is engaged in the business of rendering
investment advisory and management services and is registered as an
investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Trust desires to retain the Adviser to furnish
investment advisory services and certain other services to the Fund;
NOW, THEREFORE, the parties hereby agree as follows:
1. APPOINTMENT OF ADVISER. The Trust hereby appoints the Adviser
to act as investment adviser of the Fund for the period and on the terms
herein set forth. The Adviser accepts such appointment and agrees to render
the services herein set forth, for the compensation herein provided.
2. DUTIES OF ADVISER. (a) The Adviser, at its expense, will furnish
continuously an investment program for the Fund, will determine, subject to
the overall supervision of the Trustees of the Trust, what investments shall
be purchased, held, sold or exchanged by the Fund and what portion, if any,
of the assets of the Fund will be held uninvested, and shall, on behalf of
the Fund, make changes in the investments of the Fund. Subject always to the
supervision of the Trustees of the Trust, the Adviser will also manage,
supervise and conduct the other affairs and business of the Fund and matters
incidental thereto, subject always to the provisions of the Trust's
Declaration of Trust and Bylaws and of the 1940 Act. The Adviser, and any
affiliate thereof, shall be free to render similar services to other
investment companies and other clients and to engage in other activities, so
long as the services rendered to the Fund hereunder are not impaired.
(b) The Adviser shall provide, without cost to the Fund all
necessary office space and the services of executive personnel for
administering the affairs of the Fund.
(c) The Adviser, at its own expense, shall place all orders for the
purchase and sale of portfolio securities for the account of the Fund with
issuers, brokers or dealers selected by the Adviser. In executing portfolio
transactions and selecting brokers or dealers, the Adviser will use its best
efforts to seek, on behalf of the Fund, the best overall terms available. In
assessing the best overall terms available for any transaction, the Adviser
shall consider all factors it deems relevant, including the breadth of the
market in the security, the financial condition and execution capabilities of
the broker or dealer, and the reasonableness of the commission, if any (for
the specific transaction and on a continuing basis). In evaluating the best
overall terms available and in selecting the broker or dealer to execute a
particular transaction, the Adviser may also consider the brokerage and
research services (as those terms are defined in Section
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28(e) of the Securities Exchange Act of 1934) provided by such broker or
dealer to the Fund or other accounts over which the Adviser or any affiliate
of the Adviser exercises investment discretion. The Adviser is authorized to
pay to a broker or dealer who provides such brokerage and research services a
commission for executing a portfolio transaction for the Fund which is in
excess of the amount of commission another broker or dealer would have
charged for effecting that transaction, if, but only if, the Adviser
determines in good faith that such commission is reasonable in relation to
the value of the brokerage and research services provided by such broker or
dealer, viewed in terms of either that particular transaction or in terms of
all of the accounts over which the Adviser or any affiliate of the Adviser
exercises investment discretion.
3. COMPENSATION OF ADVISER. (a) As full compensation for the
services and facilities furnished by the Adviser under this Agreement, the
Trust agrees to pay to the Adviser a fee at the annual rate of 1.00% of the
Fund's average net asset value. Such fee shall be accrued and payable
quarterly. For purposes of calculating such fee, such net asset value shall
be determined by taking the average of all determinations of net asset value
made in the manner provided in the Fund's current Offering Memorandum and
Statement of Additional Information.
(b) For any period less than a full month during which this Agreement
is in effect the compensation payable to the Adviser hereunder shall be
prorated according to the proportion which such period bears to a full month.
(c) The Adviser agrees that if total expenses of the Fund for any
fiscal year exceed the permissible limits applicable to the Fund in any state
in which the Fund's shares are then qualified for sale, the compensation due
the Adviser for such fiscal year shall be reduced by the amount of such
excess by a reduction or refund thereof at the time such compensation is
payable
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after the end of each calendar month during such fiscal year of the Fund
subject to readjustment during the Fund's fiscal year.
4. LIMITATION OF LIABILITY OF ADVISER. The Adviser shall not be
liable for any error of judgment or mistake of law or for any loss suffered
by the Fund in connection with any investment policy or the purchase, sale,
or retention of any security on the recommendation of the Adviser; provided,
however, that nothing herein contained shall be construed to protect the
Adviser against any liability to the Fund by reason of willful misfeasance,
bad faith or gross negligence in the performance of its duties, or by reason
of reckless disregard of its obligations and duties under this Agreement.
5. TERM AND TERMINATION. (a) This Agreement shall become effective
on the date first written above. Unless terminated as herein provided, this
Agreement shall remain in full force and effect as to the Fund for two years
from the date hereof and shall continue in full force and effect for
successive periods of one year thereafter, but only so long as each
continuance is approved (i) by either the Trustees of the Trust or by vote of
a majority of the outstanding voting securities (as defined in the 0000 Xxx)
of the Fund, and, in either event, (ii) by vote of a majority of the Trustees
of the Trust who are not parties to this Agreement or interested persons (as
defined in the 0000 Xxx) of any such party, cast in person at a meeting
called for the purpose of voting on such approval.
(b) This Agreement may be terminated at any time without the payment of
any penalty by vote of the Trustees of the Trust or by vote of a majority of the
outstanding voting securities (as defined in the 0000 Xxx) of the Fund or by the
Adviser, on sixty days' written notice to the other party.
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(c) This Agreement shall automatically terminate in the event of
its assignment (as defined in the 1940 Act).
6. USE OF NAME. The Adviser and/or its affiliates own the name "Xxxxxx
Xxxxxx" and the initials "MCBT," which may be used by the Trust only with the
consent of the Adviser. The Adviser consents to the use by the Trust of the
name "Xxxxxx Xxxxxx Business Trust" and "MCBT Pan European Mid Cap Fund" or
any other name embodying the name "Xxxxxx Xxxxxx" or the initials "MCBT,"
into such forms as the Adviser shall in writing approve, but only on
condition and so long as (i) this Agreement shall remain in full force and
(ii) the Trust shall fully perform, fulfill and comply with all provisions of
this Agreement expressed herein to be performed, fulfilled or complied with
by it. No such name shall be used by the Trust at any time or in any place or
for any purposes or under any conditions except as provided in this section.
The foregoing authorization by the Adviser to the Trust to use said name and
initials as part of a business or name is not exclusive of the right of the
Adviser itself to use, or to authorize others to use, the same; the Trust
acknowledges and agrees that as between the Adviser and the Trust, the
Adviser has the exclusive right so to use, or authorize others to use, said
name and initials and the Trust agrees to take such action as may reasonably
be requested by the Adviser to give full effect to the provisions of this
section (including, without limiting the generality of the foregoing, the
Trust agrees that, upon any termination of this Agreement by either party or
upon the violation of any of its provisions by the Trust, the Trust will, at
the request of the Adviser made within six months after the Adviser has
knowledge of such termination or violation, use its best efforts to change
the name of the Trust so as to eliminate all reference, if any, to the name
"Xxxxxx Xxxxxx" or initials "MCBT" and will not thereafter transact any
business in a name containing the name "Xxxxxx Xxxxxx" or initials "MCBT" in
any form or combination whatsoever,
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or designate itself as the same entity as or successor to an entity of such
name, or otherwise use the name "Xxxxxx Xxxxxx" or initials "MCBT" or any
other reference to the Adviser. Such covenants on the part of the Trust shall
be binding upon it, its trustees, officers, stockholders, creditors and all
other persons claiming under or through it.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed as of the date first written above
XXXXXX XXXXXX BUSINESS TRUST
By: /s/ Xxxxxxx X.X. Xxxx
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Xxxxxxx X.X. Xxxx, President
XXXXXX XXXXXX GLOBAL INVESTORS LIMITED
By: /s/ Xxxxx X. X. Xxxxxxxx
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Name: Xxxxx X. X. Xxxxxxxx
Title: Vice President
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NOTICE
A copy of the Agreement and Declaration of Trust of the Trust is on file
with the Secretary of State of The Commonwealth of Massachusetts and notice
is hereby given that this Agreement is executed with respect to the Trust's
MCBT Pan European Mid Cap Fund series on behalf of the Trust by officers of
the Trust as officers and not individually and that the obligations of this
instrument are not binding upon the Trustees, officers or holders of shares
individually but are binding only upon the assets and property of the MCBT
Pan European Mid Cap Fund series.
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