<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 15)
EVANS, INC.
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(Name of Issuer)
Common Stock, $.20 par value
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(Title of Class of Securities)
299155 10 1
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(CUSIP Number)
John P. Walsh, Esq.
101 South Hanley Road, Suite 1600
St. Louis, Missouri 63105
(314) 862-1200
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 29, 1995
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(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or
(4), check the following box: / /.
Check the following box if a fee is being paid with the statement:
/ /. (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item l;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See
Rule 13d-7.)
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
<PAGE> 2
CUSIP NO. 299155 10 1 13D Page 2
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1) Name of Reporting Person: Peter Cundill & Associates
(Bermuda) Ltd.
I.R.S. Identification No.: N/A
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2) Check the Appropriate Box if a Member of a Group:
(a) / /
(b) /X/
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3) SEC Use Only
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4) Source of Funds: 00
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5) Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e): / /
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6) Citizenship or Place of Organization: Bermuda
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Number of (7) Sole Voting Power: 227,000
Shares Bene- -----------------------------------------------
ficially (8) Shared Voting Power: 838,354
Owned by -----------------------------------------------
Each Report- (9) Sole Dispositive Power: 477,354
ing Person -----------------------------------------------
With (10) Shared Dispositive Power: 865,500
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11) Aggregate Amount Beneficially Owned by Each Reporting Person:
1,342,854
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12) Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares: / /
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13) Percent of Class Represented by Amount in Row (11): 27.3%
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14) Type of Reporting Person: CO, IA (Canadian)
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<PAGE> 3
CUSIP NO. 299155 10 1 13D Page 3
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1) Name of Reporting Person: Peter Cundill Holdings
(Bermuda) Ltd.
I.R.S. Identification No.: N/A
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2) Check the Appropriate Box if a Member of a Group:
(a) / /
(b) /X/
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3) SEC Use Only
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4) Source of Funds: 00
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5) Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e): / /
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6) Citizenship or Place of Organization: Bermuda
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Number of (7) Sole Voting Power: 0
Shares Bene- -----------------------------------------------
ficially (8) Shared Voting Power: 885,354
Owned by -----------------------------------------------
Each Report- (9) Sole Dispositive Power: 0
ing Person -----------------------------------------------
With (10) Shared Dispositive Power: 1,342,854
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11) Aggregate Amount Beneficially Owned by Each Reporting Person:
1,342,854
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12) Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares: / /
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13) Percent of Class Represented by Amount in Row (11): 27.3%
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14) Type of Reporting Person: HC
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<PAGE> 4
CUSIP NO. 299155 10 1 13D Page 4
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1) Name of Reporting Person: F. Peter Cundill
I.R.S. Identification No.: N/A
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2) Check the Appropriate Box if a Member of a Group:
(a) / /
(b) /X/
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3) SEC Use Only
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4) Source of Funds: 00
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5) Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e): / /
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6) Citizenship or Place of Organization: Canada
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Number of (7) Sole Voting Power: 200,000
Shares Bene- -----------------------------------------------
ficially (8) Shared Voting Power: 885,354
Owned by -----------------------------------------------
Each Report- (9) Sole Dispositive Power: 0
ing Person -----------------------------------------------
With (10) Shared Dispositive Power: 1,342,854
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11) Aggregate Amount Beneficially Owned by Each Reporting Person:
1,342,854
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12) Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares: / /
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13) Percent of Class Represented by Amount in Row (11): 27.3%
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14) Type of Reporting Person: IN
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<PAGE> 5
Page 5
This Amendment No. 15 to the Statement on Schedule 13D
heretofore filed on May 19, 1989, as amended by Amendment No. 1
filed on December 19, 1989, Amendment No. 2 filed on February 14,
1990, Amendment No. 3 filed on March 28, 1990, Amendment No. 4
filed on December 18, 1990, Amendment No. 5 filed on February 14,
1991, Amendment No. 6 filed on March 11, 1991, Amendment No. 7
filed on July 10, 1991, Amendment No. 8 filed on January 12, 1994,
Amendment No. 9 filed on February 1, 1994, Amendment No. 10 filed
April 8, 1994, Amendment No. 11 filed on September 14, 1994,
Amendment No. 12 filed on January 9, 1995, Amendment No. 13 filed
on February 24, 1995, and Amendment No. 14 filed on June 9, 1995 by
Peter Cundill & Associates (Bermuda) Ltd., a Bermuda corporation
("PCB"), Peter Cundill Holdings (Bermuda) Ltd., a Bermuda
corporation ("Holdings"), and F. Peter Cundill, a Canadian citizen
residing in England ("Cundill"), with respect to the shares of
common stock, $.20 par value ("Shares"), of Evans, Inc., a Delaware
corporation (the "Company"), whose address is 36 South State
Street, Chicago, Illinois 60603, to reflect amendments to Item Nos.
2, 5, 6 and 7, the complete text of each of which item is included
herein.
Item 2. Identity and Background.
------ -----------------------
This Statement is filed by PCB, Holdings and Cundill.
Further information regarding the identity and background of the
Reporting Persons is as follows:
A. PCB
---
(1) PCB is an investment advisor organized under the laws of
Bermuda. Its address is:
15 Alton Hill
Southampton SN 01
Bermuda
The officers of PCB are:
Name Office
---- ------
F. Peter Cundill President
John R. Talbot Vice President
and Secretary
Maureen Crocker Vice President
(2) The business or residence address, citizenship, and
present principal occupation of PCB's officers and directors are as
follows:
<PAGE> 6
Page 6
Name: F. Peter Cundill
----------------
Position: President and Director
Business Address: Grosvenor House, Apt. 104
Park Lane
London, England
Citizenship: Canadian
Principal Occupation: Investment Advisor
Name: John R. Talbot
--------------
Position: Vice President, Secretary
and Director
Business Address: The Corner House
Church & Parliament Streets
Hamilton, Bermuda
Citizenship: British
Principal Occupation: Director & Manager, Roche
International Ltd.
Name: Maureen Crocker
---------------
Position: Vice President
Business Address: 1200 Sunlife Plaza
1100 Melville Street
Vancouver, B.C. V6E 4A6
Citizenship: Canadian
Principal occupation: Executive Assistant to
F. Peter Cundill
Name: Nicolas Trollepe
----------------
Position: Director
Business Address: Clarendon House
Church Street
Hamilton, Bermuda
Citizenship: British
Principal Occupation: Partner in the law firm
of Conyers, Dill & Pearman
Name: Stephen W. Kempe
----------------
Position: Director
Business Address: 65 Front Street
Hamilton, Bermuda
Citizenship: British
Principal Occupation: Executive Vice President,
Bank of N.T. Butterfield &
Son Ltd.
Name: Graham Collis
-------------
Position: Director
Business Address: Clarendon House
Church Street
Hamilton, Bermuda
Citizenship: British
Principal Occupation: Partner in the law firm
of Conyers, Dill & Pearman
<PAGE> 7
Page 7
(3) Holdings is a controlling person of PCB. Information as
required by this Item 2 is furnished in Part C of this Item 2.
B. Holdings.
--------
(1) Holdings is a Bermuda corporation. Its address is:
15 Alton Hill
Southampton SN 01
Bermuda
The officers of Holdings are:
Name Office
---- ------
F. Peter Cundill President
John R. Talbot Vice President and
Secretary
(2) The names of the officers and directors are as follows
(the business or residence address, citizenship and present
principal occupation of each individual as required by this Item 2
are provided in part A of this Item 2):
Name: F. Peter Cundill
----------------
Office: President and Director
Name: John R. Talbot
--------------
Office: Vice President, Secretary
and Director
Name: Stephen W. Kempe
----------------
Office: Director
Name: Graham Collis
-------------
Office: Director
Name: Nicolas Trollepe
----------------
Office: Director
(3) Cundill is a controlling person of Holdings. Information
as required by this Item 2 is furnished in Part A of this Item 2.
C. Cundill.
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The business or residence address, citizenship, and
present principal occupation of Cundill and other information as
required by this Item 2 are furnished in Part A of this Item 2.
D. Proceedings.
-----------
During the last five years none of the Reporting Persons
nor, to the best knowledge of the Reporting Persons, the executive
<PAGE> 8
Page 8
officers, directors or controlling persons of any Reporting Person
have been convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors) or have been parties to any
civil, judicial or administrative proceeding as a result of which
any Reporting Person or such executive officer, director or
controlling person was or is subject to any judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
Item 5. Interest in Securities of the Issuer.
------ ------------------------------------
<TABLE>
The number of Shares which may be deemed to be
beneficially owned by the Reporting Persons are as follows:
<CAPTION>
Shares Deemed to be Nature of Percentage
Beneficially Owned By: Ownership of Class
--------------------- --------- ----------
(A) PCB:
---
<C> <S> <C>
Shared Dispositive Power
222,500 Only <F1> 4.52%
Sole Voting and Shared
181,000 Dispositive Power <F2> 3.68%
Sole Voting and Sole
477,354 Dispositive Power <F3> 9.71%
Sole Voting and Shared
227,000 Dispositive Power <F4> 4.62%
Shared Dispositive Power
200,000 Only <F5> 4.07%
Sole Voting and Sole
35,000 Shared Dispositive Power <F6> .71%
--------- -----
1,342,854 27.31%
========= =====
<CAPTION>
(B) Holdings:
--------
<C> <S> <C>
Shared Dispositive Power
222,500 Only <F7> 4.52%
Shared Voting and Shared
181,000 Dispositive Power <F8> 3.68%
Shared Voting and Shared
477,354 Dispositive Power <F9> 9.71%
Shared Voting and Shared
227,000 Dispositive Power <F9> 4.62%
<PAGE> 9
Page 9
Shared Dispositive Power
200,000 Only <F10> 4.07%
Shared Dispositive Power
35,000 Only <F10> .71%
--------- -----
1,342,854 27.31%
========= =====
<CAPTION>
(C) Cundill:
-------
<C> <S> <C>
Shared Dispositive
222,500 Only <F11> 4.52%
Shared Voting and Shared
181,000 Dispositive Power <F12> 3.68%
Shared Voting and Shared
477,354 Dispositive Power <F13> 9.71%
Shared Voting and Shared
227,000 Dispositive Power <F13> 4.62%
Sole Voting and Shared
200,000 Dispositive Power <F14> 4.07%
Shared Dispositive Power
35,000 Only <F15> .71%
--------- -----
1,342,854 27.31%
========= =====
<FN>
--------------------------
<F1> Such Shares are owned by an investment advisory client of PCA.
By reason of its investment advisory relationship with such
client, PCA (as between itself and its client) has sole
dispositive power, but no voting power, over such Shares.
PCB, because it provides investment advisory services to PCA,
could be deemed to share dispositive power over such Shares
with PCA. The economic interest in such Shares is held by the
aforementioned investment advisory client of PCA.
<F2> Such Shares are owned by investment advisory clients of PCA.
By reason of its investment advisory relationship with such
clients, PCA (as between itself and its clients) has shared
voting power and shared dispositive power over such Shares.
PCB, because it provides investment advisory services to PCA,
could be deemed to share voting power and dispositive power
over such Shares with PCA. The economic interest in such
Shares is held by the aforementioned investment advisory
clients of PCA.
<F3> Such Shares are owned by Cundill Value Fund, an unincorporated
trust governed by the laws of British Columbia ("Value Fund"),
<PAGE> 10
Page 10
the investment portfolio of which entity is managed by PCB.
PCB has sole dispositive power and sole voting power of the
Shares under an agreement dated June 1, 1995. The economic
interest in such Shares is held by Value Fund.
<F4> Such Shares are owned by International, which has shared
dispositive power over such Shares with PCB. PCB is the
investment manager of International and has sole voting and
shared dispositive power over such Shares. The economic
interest in such Shares is held by International.
<F5> Such Shares are owned by Cundill Limited. The general partner
of Cundill Limited has sole voting power over such Shares.
PCB is the investment advisor of Cundill Limited and has
shared dispositive power over such Shares. The economic
interest in such Shares is held by the limited partners of
Cundill Limited.
<F6> Such Shares are owned by Global Advisors, the investment
portfolio of which is managed by PCB. PCB has shared
dispositive power over such Shares under an agreement dated
April 15, 1994. The economic interest in such Shares is held
by Global Advisors.
<F7> Holdings, because it owns a controlling portion of the
outstanding stock of PCB, which provides investment advisory
services to PCA, could be deemed to share the power to dispose
or direct the disposition of such Shares.
<F8> Holdings, because it owns a controlling portion of the
outstanding stock of PCB, which provides investment advisory
services to PCA, could be deemed to share the power to vote
and dispose or direct the disposition of such Shares.
<F9> Holdings, because it owns a controlling portion of the
outstanding stock of PCB, could be deemed to share the power
to vote and dispose or direct the disposition of such Shares.
<F10> Holdings, because it owns a controlling portion of the
outstanding stock of PCB, could be deemed to share the power
to dispose or direct the disposition of such Shares.
<F11> Cundill, because he owns a controlling portion of the
outstanding stock of Holdings, which owns a controlling
portion of the outstanding stock of PCB, which provides
investment advisory services to PCA, could be deemed to share
the power to dispose or direct the disposition of such Shares.
<F12> Cundill, because he owns a controlling portion of the
outstanding stock of Holdings, which owns a controlling
portion of the outstanding stock of PCB, which provides
investment advisory services to PCA, could be deemed to share
<PAGE> 11
Page 11
the power to vote and dispose or direct the disposition of
such Shares.
<F13> Cundill, because he owns a controlling portion of the
outstanding stock of Holdings, which owns a controlling
portion of the outstanding stock of PCB, could be deemed to
share the power to vote and dispose or direct the disposition
of such Shares.
<F14> Cundill, because he is a controlling person of the general
partner of Cundill Limited, could be deemed to have sole
voting power of such Shares. Cundill, because he owns a
controlling portion of the outstanding stock of Holdings,
which owns a controlling portion of the outstanding stock of
PCB, could be deemed to share the power to dispose or direct
the disposition of such Shares.
<F15> Cundill, because he owns a controlling portion of the
outstanding stock of Holdings, which owns a controlling
portion of the stock of PCB, could be deemed to share the
power to dispose or direct the disposition of Shares.
</TABLE>
On June 30, 1995, Cundill Value Fund Ltd. (which prior to
this Amendment No. 15 was a Reporting Person referred to as "Value
Fund") transferred substantially all of its assets (including the
Shares previously reported on this Schedule 13D) to Value Fund in
a reorganization that resulted in the conversion from a corporation
to an unincorporated trust.
TRANSACTIONS
------------
No transactions in the Shares were effected since May 15, 1995
(the date of the last transaction report on Amendment No. 14 to
Statement on Schedule 13D) by the Reporting Persons or to the best
knowledge of the Reporting Persons, by any executive officer,
director, affiliate or subsidiary thereof, except the following
transactions:
The disposition of 125,000 Shares results from the recision of
an arrangement whereby PCB had been vested with sole voting and
sole dispositive power by one of PCB's investment advisory clients
in connection with PCB's management of such client's investment
portfolio.
Item 6. Contracts, Arrangements, Understandings or Relation-
------ ---------------------------------------------------
ships With Respect to Securities of the Issuer.
----------------------------------------------
PCB and Value Fund (as successor to Cundill Value Fund
Ltd.) are parties to an agreement, a copy of which is attached
hereto as Exhibit 1, pursuant to which PCB is granted the exclusive
---------
right to supervise the assets and securities portfolio of Value
Fund.
<PAGE> 12
Page 12
PCB has entered into an agreement with PCA, a copy of
which is incorporated herein by reference, pursuant to which PCB is
required to provide the investment counselling and transaction
skills of Cundill which are required by PCA to fulfill its
portfolio management contracts with its clients.
PCB has entered into a management agreement with
International, a copy of which is incorporated herein by reference,
pursuant to which PCB has sole voting and shared dispositive power
over the investments of International.
Cundill Limited has arranged with PCB that PCB shall act
as investment counsel as shown on the excerpt from the Cundill
Limited Partnership Agreement which is incorporated herein by
reference, pursuant to which PCB has shared dispositive power over
the investments of Cundill Limited.
PCB has entered into an agreement with Global Advisors,
a copy of which is incorporated herein by reference, pursuant to
which PCB is required to provide investment management services.
Item 7. Materials Filed as Exhibits.
------ ---------------------------
Exhibit 1 - Master Investment Counsel Agreement dated
June 1, 1995 between PCB and the Trustee of Value Fund attached
hereto as Exhibit 1.
---------
Exhibit 2 - Agreement dated December 28, 1984 between PCB
and PCA filed with Amendment No. 7 to Schedule 13D dated July 9,
1991
Exhibit 3 - Management Agreement dated September 18, 1985
between PCB and International filed with Amendment No. 7 to
Schedule 13D dated July 9, 1991
Exhibit 4 - Excerpt from Cundill Limited Partnership
Agreement filed with Amendment No. 7 to Schedule 13D dated July 9,
1991
Exhibit 5 - Special Power of Attorney from PCB filed with
Amendment No. 7 to Schedule 13D dated July 9, 1991
Exhibit 6 - [Intentionally Omitted]
Exhibit 7- Special Power of Attorney from Holdings filed
with Amendment No. 7 to Schedule 13D dated July 9, 1991
Exhibit 8 - Special Power of Attorney from Cundill filed
with Amendment No. 7 to Schedule 13D dated July 9, 1991
<PAGE> 13
Page 13
Exhibit 9 - Advisory Agreement dated April 15, 1994,
between PCB and Global Advisors filed with Amendment No. 12 to
Schedule 13D dated January 5, 1995
<PAGE> 14
Page 14
SIGNATURES
----------
The undersigned certify, after reasonable inquiry and to the
best knowledge and belief of the undersigned, that the information
set forth in this Statement is true, complete and correct. The
undersigned agree to the filing of this single Amendment No. 15 to
Statement on Schedule 13D.
PETER CUNDILL & ASSOCIATES
(BERMUDA) LTD.
Date: September 11, 1995 By: /s/ John P. Walsh
----------------------------------
John P. Walsh, Attorney-in-Fact
PETER CUNDILL HOLDINGS
(BERMUDA) LTD.
Date: September 11, 1995 By: /s/ John P. Walsh
----------------------------------
John P. Walsh, Attorney-in-Fact
F. PETER CUNDILL
Date: September 11, 1995 By: /s/ John P. Walsh
----------------------------------
John P. Walsh, Attorney-in-Fact
<PAGE> 15
Exhibit 1
---------
MASTER
INVESTMENT COUNSEL AGREEMENT
THIS AGREEMENT made as of the 1st day of June, 1995.
BETWEEN:
THE TRUST COMPANY BANK OF MONTREAL, a trust
company incorporated under the laws of Canada,
having an office at 302 Bay Street, Toronto,
Ontario, M5X 1A1, in its capacity as Trustee
of the mutual funds listed in Schedule "A"
hereto
(the "Trustee")
OF THE FIRST PART
AND:
PETER CUNDILL & ASSOCIATES (BERMUDA) LTD., a
company duly incorporated under the laws of
Bermuda and extra-provincially registered
under the laws of the Province of British
Columbia
(the "Investment Counsel")
OF THE SECOND PART
WHEREAS:
A. Pursuant to a declaration of trust made as of the 1st day
of June, 1995 (the "Master Declaration of Trust"), the Trustee is
the sole trustee of the funds currently listed in Schedule "A" to
this Agreement, which Schedule may be amended from time to time to
add new funds or remove existing funds (each, a "Fund" and
collectively, the "Funds"), each an open-end mutual investment fund
created for the purpose of providing a convenient means for the
investment by investors in a professionally managed portfolio;
B. The Trustee desires to avail the Funds of the experience,
sources of information, advice, assistance, personnel and
facilities of and available to the Investment Counsel, and desires
to have the Investment Counsel provide advice and discretionary
portfolio management services to each of the Funds with respect to
the investment and reinvestment of the assets of the Funds in
securities; and
C. The Investment Counsel is willing to perform such
services and to furnish such facilities and personnel on the terms
<PAGE> 16
and subject to the conditions hereinafter and in the Master
Declaration of Trust set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in
consideration of the respective covenants and agreements herein
contained, the parties covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.01 DEFINITIONS
Wherever used in this Agreement, unless there is
something in the subject matter or context inconsistent therewith,
the following words and terms will have the meanings respectively
ascribed to them as follows:
a) "BOARD OF GOVERNS" means the board of governors appointed
pursuant to the Master Declaration of Trust;
b) "BUSINESS DAY" means any day upon which the Toronto Stock
Exchange is open for trading;
c) "CUSTODIAN" means the custodian of the Securities
appointed pursuant to the Custodian Agreement;
d) "CUSTODIAN AGREEMENT" means the agreement made as of the
1st day of June, 1995, among the Trustee, the Manager and
the Custodian, as amended from time to time;
e) "DISCLOSURE DOCUMENTS" means the current preliminary
prospectus, prospectus, simplified prospectus, annual
information form, annual and interim financial
statements, any material change reports and any other
documents which may from time to time be filed as part of
the permanent information record of each Fund or required
in connection with the distribution of units of each
Series of a Fund by the securities regulatory authority
in each of the jurisdictions in which units of each
Series of a Fund are qualified for distribution;
f) "FUND" or "FUNDS" means the funds currently listed in
Schedule "A" to this Agreement, which Schedule may be
amended from time to time to add new funds or remove
existing funds;
g) "INVESTMENT COUNSEL" means Peter Cundill & Associates
(Bermuda) Ltd.;
h) "INVESTMENT COUNSEL FEE" means the fee payable to the
Investment Counsel pursuant to Section 3.01;
-2-
<PAGE> 17
i) "MANAGER" means any person or corporation which, from
time to time, is appointed as manager of a Fund by the
Trustee;
j) "MASTER DECLARATION OF TRUST" means the Master
Declaration of Trust for the administration of each Fund
dated as of the 1st day of June, 1995;
k) "SECURITIES" means any securities or other property held
as investments of a Fund;
l) "SERIES" means any series of a class of Units of a Fund
which the Board of Governors may establish from time to
time in accordance with the Master Declaration of Trust;
m) "TRUSTEE" means the trustee named as such under the
Master Declaration of Trust;
n) "UNITS" means units in a Series of a Fund issued or to be
issued and for the time being outstanding and a "UNIT" in
reference to any particular Series means an undivided
interest in that Series' proportionate share of the
assets of the Fund as determined in accordance with the
Master Declaration of Trust.
o) "UNITHOLDER" means a unitholder of a Fund.
1.02 INTERNAL REFERENCE
The terms "HEREOF", "HERETO" and "HEREUNDER" and similar
expressions, mean and refer to this Agreement and not to any
particular Article or Section of this Agreement.
1.03 INCLUDING
The word "including", when following any general
statement, term or matter, shall not be construed to limit such
general statement, term or matter to the specific item or matters
set forth immediately following such word or to similar items or
matters, whether or not non-limiting language (such as "without
limitation" or "but not limited to" or words of similar import) is
used with reference thereto but rather shall be deemed to refer to
all other items or matters that could reasonably fall within the
broadest possible scope of such general statement, term or matter.
1.04 COMPUTATION OF TIME PERIODS
In this Agreement and any other document delivered
hereunder, except where expressly otherwise provided, in the
computation of a period of time from a specified date to a later
specified date, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding".
-3-
<PAGE> 18
1.05 CURRENCY
Unless otherwise indicated, all dollar amounts referred
to in this Agreement are in Canadian funds.
1.06 HEADINGS
The index to this Agreement and the headings of the
Articles of Sections hereof are included for convenience only and
do not form a part of this Agreement, nor are they intended to be
full or accurate descriptions of, or to interpret, define or limit
the scope, extent or intent of, this Agreement or any provision
hereof and they will not affect its construction.
1.07 ACCOUNTING TERMS
All accounting terms not defined in this Agreement will
have those meanings generally ascribed to them in accordance with
generally accepted accounting principles.
1.08 APPLICABLE LAWS AND ATTORNMENT
This Agreement will in all respects be governed by and be
construed in accordance with the laws of the Province of British
Columbia and the laws of Canada applicable in the Province of
British Columbia. Each of the parties hereto hereby irrevocably
attorns to the jurisdiction of the courts of the Province of
British Columbia.
1.09 NUMBER AND GENDER
Wherever the singular or the masculine is used herein the
same will be deemed to include the plural or the feminine or the
body politic or corporate where the context or the parties so
require.
ARTICLE 2
APPOINTMENT AND GRANT OF POWERS
2.01 APPOINTMENT OF INVESTMENT COUNSEL
The Trustee hereby appoints the Investment Counsel as
investment counsel of each of the Funds and, subject to the
provisions of the Master Declaration of Trust, grants to the
Investment Counsel the exclusive right to provide investment advice
and discretionary portfolio management services in respect of the
assets and security portfolio of each of the Funds and to determine
what securities, deposits of money and other property shall be
purchased or sold by each of the Funds and whether, when and how
the Funds shall deal with their respective assets for the
enhancement and protection of their value and through what agencies
the Funds shall buy, sell or otherwise deal with their investments,
all in accordance with the provisions of the Master Declaration of
-4-
<PAGE> 19
Trust and this Agreement. The Investment Counsel accepts such
appointment and hereby agrees to act as, and perform the functions
of, the investment counsel of each of the Funds in accordance with
the provisions of the Master Declaration of Trust and this
Agreement.
2.02 FUNCTIONS OF INVESTMENT COUNSEL
The Investment Counsel shall:
a) act as each of the Fund's investment counsel, conduct
necessary investigations and provide research, reports,
studies and other data in connection with the Funds'
proposed securities investments and investment policies;
b) make investment decisions relating to the acquisition and
disposition of Securities and other property for each of
the Funds, provided that investment in such Securities
and other property is not prohibited by the investment
policies and restrictions applicable to that Fund;
c) provide instructions to the Manager with respect to the
voting of Securities held by each of the Funds;
d) conduct day-to-day relations, on behalf of each of the
Funds, with other persons including consultants, lenders,
brokers, bankers and management of the issuers of the
Securities owned by the Funds from time to time;
e) make reports to the Board of Governors of the Investment
Counsel's performance of the foregoing in accordance with
the Master Declaration of Trust, and as and when
requested by the Board of Governors; and
f) provide such information to the Trustee as the Trustee
may reasonably request from time to time.
2.03 DELEGATION OF RESPONSIBILITIES
Solely in connection with the duties of the Investment
Counsel herein specified, the Investment Counsel may, subject to
any limitation or delegation imposed by law or by the Trustee,
appoint or retain any persons as agents, representatives, employees
or independent contractors, including, without limitation, lawyers,
bankers, counsel, notaries, underwriters, accountants, brokers,
dealers, officers or servants in one or more capacities and any
other advisers which the Investment Counsel deems advisable;
provided that the Investment Counsel shall be fully liable to a
Fund for the selection of such persons and shall require such
persons to perform their services to a standard of care which is at
least as high as that imposed on the Investment Counselor
hereunder.
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2.04 PERMITTED ACTIVITIES
Nothing in this Agreement will in any way limit or
restrict the Investment Counsel, or any of the directors, officers,
shareholders or employees of the Investment Counsel, from buying,
selling or trading in any securities for their own account. Each
Fund acknowledges that this appointment is non-exclusive and that
the Investment Counsel may act as an investment counsel,
distributor, registrar and/or transfer agent of any person, firm,
or corporation and may take any action or do anything in relation
to such services so long as the Investment Counsel is performing
its obligations under this Agreement. No such performance of other
services or the taking of any such action or the doing of any such
thing by the Investment Counsel shall be in any manner restricted
or otherwise affected by any aspect of the relationship of the
Investment Counsel to or with the Fund nor shall it be deemed to
violate or give rise to any duty or obligation of the Investment
Counsel to the Fund.
2.05 COMPLIANCE WITH LAW
The Investment Counsel agrees to comply with and be
subject to the provisions of all applicable legislation, regulatory
policy and guidelines relating to the services to be rendered by
the Investment Counsel hereunder and to provide to each Fund, the
Trustee and the Governors all such information and reports as may
be required pursuant to applicable legislation to enable the Fund
to comply with such legislation; and, in respect of any
transactions or security trading conducted on the instructions of
the Investment Counsel in the name of the Funds, the Investment
Counsel shall ensure that same does not cause the Funds to be in
contravention of any part of the Master Declaration of Trust, their
investment objectives or their investment policies.
2.06 STANDARD OF CARE: LIABILITY OF THE INVESTMENT COUNSEL
The Investment Counsel shall exercise the powers granted
hereunder and discharge its duties to the Funds hereunder honestly,
in good faith and in the best interests of each of the Funds and,
in connection therewith, shall exercise the degree of care,
diligence and skill that a reasonably prudent person would exercise
in comparable circumstances. The Investment Counsel shall not
incur liability in respect of any action taken or thing suffered by
it in reliance upon any notice, resolution, direction, consent,
certificate, affidavit, statement or other paper or document
believed by it to be genuine and to have been passed, sealed or
signed by proper parties.
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ARTICLE 3
FEES AND CHARGES
3.01 FEES PAYABLE TO INVESTMENT COUNSEL BY FUNDS
On the first business day of each and every month, each
of the Funds shall pay to the Investment Counsel a fee in respect
of the preceding month's services. The fee shall be calculated and
accrued daily at the rate of 1.15% per annum of the average daily
net asset value of the respective Fund. For such purpose, the
aggregate of the net asset value of the respective Funds as at any
particular time shall be the then current market value of the
Fund's assets, less the Fund's liabilities (all as defined in the
Master Declaration of Trust), and the value of the Securities,
other assets and liabilities of the respective Fund shall be
determined in accordance with the Master Declaration Trust in like
manner as then in effect for purposes of the redemption of Units.
3.02 EXPENSES PAYABLE BY FUNDS
For the avoidance of doubt, it is confirmed that the
Investment Counsel shall not be responsible for paying any of the
operating expenses of the Funds (whether incurred directly or by
the Investment Counsel on behalf of either of the Funds).
3.03 ASSIGNMENT OF INVESTMENT COUNSEL FEE
The Investment Counsel shall be entitled to assign all or
any part of the Investment Counsel Fee and each of the Funds agrees
to make payment of the Investment Counsel Fee or portions thereof
to such person or persons as the Investment Counsel may in writing
direct and payment of the Investment Counsel Fee as so directed
shall fully discharge the Fund's obligation to the Investment
Counsel in respect of the payment of the Investment Counsel Fee.
3.04 ACCESS
The Investment Counsel agrees that the Trustee, the
Governors and each of the Funds shall be entitled to have access to
and to examine all records maintained by or on behalf of the
Investment Counsel with respect to the services provided by the
Investment Counsel under this Agreement. Each of the funds and the
Trustee authorizes the Investment Counsel to have full access to
the books, records, business premises and to whatever or other
information and material of the Fund that the Investment Counsel
requires to perform its services hereunder. The Investment Counsel
agrees to keep confidential all information concerning each of the
Fund's business and affairs which is not otherwise generally
disclosed to the public and shall not disclose the same except as
may be necessary or desirable to enable the Investment Counsel to
carry out its duties hereunder.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.01 REPRESENTATIONS AND WARRANTIES OF INVESTMENT COUNSEL
The Investment Counsel represents and warrants to the
Trustee that:
a) the Investment Counsel has been extra-provincially
registered under the laws of the Province of British
Columbia;
b) it is duly registered or exempt from registration in
accordance with applicable law and that it has completed
or obtained all other registrations, filings, appropriate
authorizations, consents or examinations required by any
governmental authority for the performance of its
services as Investment Counsel of each Fund and that it
will maintain such status during the term of this
Agreement;
c) the Investment Counsel, pursuant to the Master
Declaration of Trust and this Agreement, possesses proper
authority, and has taken all proper actions necessary, to
enter into this Agreement, and that this Agreement is and
shall be binding and enforceable upon the Investment
Counsel, the Funds and the Funds' property, in accordance
with its terms;
d) the Investment Counsel and the Funds are in compliance
and shall at all times continue to comply with the
material requirements imposed upon the Investment Counsel
and the Funds applicable law and any securities
administrator having jurisdiction; and
e) this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid, binding and
enforceable agreement of, the Investment Counsel.
4.02 SURVIVAL OF REPRESENTATION AND WARRANTIES
The representations and warranties of the Investment
Counsel contained in Section 4.01 shall survive the execution of
this Agreement and the Master Declaration of Trust and shall
continue in full force and effect following such time for the
benefit of the Trustee.
ARTICLE 5
LIMITATION OF LIABILITY AND INDEMNITY
5.01 LIMITATION OF LIABILITY
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<PAGE> 23
Subject to Section 2.03, neither the Investment Counsel
nor its directors, officers, employees and agents shall be liable
to any Fund or to any Unitholder for any act, omission, receipt,
neglect or default of any other person, firm or corporation
employed or engaged by the Investment Counsel as permitted in the
Master Declaration of Trust or this Agreement, or for any loss,
damage or expense caused to the respective Fund through the
insufficiency or deficiency of any Security in or upon which any of
the moneys of or belonging to the respective Fund shall be laid out
or invested, or for any loss or damage arising out of the act or
omission of any person with whom any funds, investment or property
of the respective Fund shall be deposited, or for any loss
occasioned by any error in judgment on the part of the Investment
Counsel, or for any other loss or damage to the respective Fund
which may occur during or in the course of the performance of its
obligations, responsibilities, powers, discretions or authorities
under the Master Declaration of Trust or this Agreement, unless the
particular loss, damage or expense shall be attributable to the
willful misfeasance, dishonesty, bad faith or negligence of the
Investment Counsel in the performance of such obligations,
responsibilities, powers, discretions or authorities under the
Master Declaration of Trust or this Agreement, or shall be
attributable to the Investment Counsel's reckless disregard of such
obligations and responsibilities, powers, discretions or
authorities.
5.02 INDEMNIFICATION OF INVESTMENT COUNSEL
The Investment Counsel and each of its directors,
officers, employees and agents shall be entitled to be indemnified
and reimbursed out of the assets of each of the Funds in respect
of:
a) any liability and all costs, charges and expenses
sustained or incurred in respect of any action, suit or
proceeding that is proposed or commenced against the
Investment Counsel, or against any such director,
officer, employee or agent, as the case may be, for or in
respect of anything done or permitted to be done in
respect of the execution of the obligations,
responsibilities, powers, discretions and authorities of
the Investment Counsel under the Master Declaration of
Trust or this Agreement in relation to the respective
Fund, unless any such liability, cost, charge or expense
arises from willful misfeasance, dishonesty, bad faith or
gross negligence of the Investment Counsel in the
performance of such obligations, responsibilities,
powers, discretions and authorities, or is attributable
to the Investment Counsel's reckless disregard of such
obligations, responsibilities, powers, discretions or
authorities; and
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<PAGE> 24
b) taxes of all kinds, interest and penalties in respect of
any unpaid taxes and any other amounts payable in respect
of any unpaid taxes, interest and penalties (excluding
any taxes, interest, penalties and other amounts that may
at any time be determined to be payable in respect of
fees paid or payable to the Investment Counsel by each of
the Funds) and, except as herein otherwise provided, all
other expenses and liabilities sustained or incurred by
the Investment Counsel in respect of the administration
of the respective Fund, provided that the Investment
Counsel, its directors, officers, employees and agents
shall not be entitled to satisfy any right of indemnity
or reimbursement granted herein, or otherwise existing
under law, except out of the assets of the respective
Fund, and no Unitholder shall e personally liable with
respect to any claim for such indemnity or reimbursement
as aforesaid.
5.03 NO LIABILITY OF TRUSTEE AND INDEMNIFICATION OF TRUSTEE
The Investment Counsel acknowledges and agrees that the
Trustee shall not be subject to any liability whatsoever to a
Unitholder or any other person, in tort, contract or otherwise, in
connection with any matter pertaining to a Fund arising from any
acts, omissions, receipts, neglects or defaults of a Fund before
the Trustee was named as a trustee of the Fund. The Investment
Counsel shall indemnify and save harmless the Trustee, its
directors, officers, employees and agents from and against any and
all claims, demands, liability, loss, costs, damages or expenses
that the Trustee and such persons may at any time hereafter sustain
or incur as a result of, or arising out of, the Investment
Counsel's failure to observe or perform its obligations hereunder
or under the Master Declaration of Trust, or as a result of the
negligence of the Investment Counsel in the performance of its
duties hereunder or under the Master Declaration of Trust; any
breach of any of the representations or warranties of the
Investment Counsel herein contained; or any willful misfeasance on
the part of the Investment Counsel or any employee of the
Investment Counsel; or any act, omission, receipt, neglect or
default of the Fund before the Trustee was named as a trustee of
the Fund. The obligations of the Investment Counsel pursuant to
this Section 5.03 shall survive the termination of this Agreement
and shall not limit any indemnification of the Trustee under the
Master Declaration of Trust.
ARTICLE 6
TERM, RESIGNATION AND REMOVAL
6.01 TERM OF INVESTMENT COUNSEL AGREEMENT
The term of this Agreement shall be for ten (10) years
from the 1st day of June, 1995, subject to termination as
hereinafter provided.
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<PAGE> 25
6.02 CONDITIONS OF TERMINATION BY INVESTMENT COUNSEL
This Agreement may be terminated by the Investment
Counsel at any time upon six (6) months' notice in writing to the
Trustee of its intention to resign as Investment Counsel hereunder
and the fund shall thereupon have the right to appoint a new
Investment Counsel to take office upon the expiration of such
period of six (6) months or such shorter or longer period as the
parties may agree. At the expiration of such period of six (6)
months or such greater or lesser period as the parties may then
agree:
a) the Investment Counsel's resignation shall become
effective and, subject to Section 5.03, the Investment
Counsel shall be relieved and discharged of and from any
further duties or obligation hereunder;
b) after payment in full of all fees and receivables
hereunder, the Investment Counsel shall deliver up at its
own cost and expense to the Trustee, all records,
documents, information and papers owned by each of the
Funds which are in the possession of the Investment
Counsel.
6.03 CONDITIONS OF REMOVAL OF INVESTMENT COUNSEL
The Investment Counsel may be removed by the Trustee for
one or more of the following reasons, in which event this Agreement
shall terminate:
a) if the Investment Counsel shall be declared bankrupt or
adjudged insolvent or if the Investment Counsel shall
make an assignment for the benefit of its creditors or
resolves to wind up or liquidate or dissolves or has an
examiner appointed in relation to it or if a receiver of
any of its assets is appointed;
b) if the Investment Counsel otherwise becomes incapable of
performing its responsibilities under this Agreement;
c) in the event of the Investment Counsel's bad faith,
dishonesty, willful misfeasance, negligence or reckless
disregard of its obligations and duties or material
breach of this Agreement.
6.04 F. PETER CUNDILL
The parties hereto acknowledge that, as at the date
hereof, F. Peter Cundill is primarily responsible for the services
provided by the Investment Counsel to the Funds, and agree that
should F. Peter Cundill for any reason, including but not limited
to incompetency, death, unfitness or termination of his
relationship with the Investment Counsel, cease to be available to
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<PAGE> 26
provide investment advisory services to each of the Funds through
the Investment Counsel, then the Investment Counsel shall have the
right to propose a new individual or individuals to provide the
services previously provided by F. Peter Cundill, subject to the
approval of the Board of Governors, which approval shall not be
unreasonably withheld.
ARTICLE 7
GENERAL
7.01 AMENDMENTS TO THIS AGREEMENT
Any amendment to this Agreement must be in writing,
signed by the Trustee and the Manager.
7.02 INVESTMENT COUNSEL AGENT OF FUNDS ONLY
The Investment Counsel shall be, and shall act as, the
agent of each of the Funds for all purposes set out in this
Agreement. In the performance of their respective
responsibilities, obligations, powers, discretions and authorities,
neither the Trustee nor the Investment Counsel shall be, or shall
act as, the agent of the Unitholders or of any of the Unitholders.
7.03 INVESTMENT COUNSEL IS INDEPENDENT CONTRACTOR
The Investment Counsel is an independent contractor and
not an employee of the Funds for any purpose.
7.04 MASTER DECLARATION OF TRUST TO PREVAIL
In the event that this Agreement is in conflict with any
provision of the Master Declaration of Trust, the provisions of the
Master Declaration of Trust shall prevail. Capitalized terms used
herein which are not otherwise defined herein shall have the same
meanings, respectively, herein as in the Master Declaration of
Trust.
7.05 NOTICES
In the event that a notice or payment is required or
permitted by this Agreement to be given, or a document delivered,
to either of the parties, the same shall be delivered or mailed to
such party at the following addresses:
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a) if to the Investment Counsel:
Peter Cundill & Associates (Bermuda) Ltd.
15 Alton Hill
Southampton SN01
Bermuda
Attention: John R. Talbot
Telephone: (809) 292-8826
Facsimile: (809) 238-8404
b) if to the Trustee:
The Trust Company of Bank of Montreal
302 Bay Street
Toronto, Ontario
M5X 1A1
Attention: Senior Manager
or such other address as either party may hereafter designate by
notice to the other. Any notice which is delivered shall be deemed
to have been given on the date of delivery and any notice mailed as
aforesaid shall be deemed to have been given on the third Business
Day following the day upon which it is mailed; provided, however,
that if there shall be, between the time of mailing and the actual
date of receipt, a mail strike, slow down or other labour dispute
which might affect the delivery of such notice by mail, then such
notice shall be effective only if delivered as aforesaid. In all
cases, notice shall be given in writing.
7.06 NO ASSIGNMENT
This Agreement may not be assigned by either party
without the prior consent in writing of the other.
7.07 TIME OF THE ESSENCE
Time shall be of the essence hereof.
7.08 NOT PERSONALLY BINDING
The obligations of the Trustee and, subject to Section
5.03, the Investment Counsel are not personally binding upon the
Trustee or the Investment Counsel or any director, officer,
employee or agent of the Trustee or the Investment Counsel. Only
the Funds and Funds' property are bound by the obligations of the
Trustee and the Investment Counsel hereunder.
7.09 ENUREMENT
This Agreement shall be binding and shall enure to the
benefit of the parties and their respective successors and
permitted assigns.
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<PAGE> 28
IN WITNESS WHEREOF this Agreement has been executed by
the parties.
THE TRUST COMPANY OF BANK OF
MONTREAL, as Trustee of the
mutual funds listed in
Schedule "A" hereto
Per: /s/ Barbara M. Fedoryk
-----------------------------
Authorized Signatory
/s/ Velma J. Jones
---------------------------------
Authorized Signatory
THE CORPORATE SEAL OF PETER )
CUNDILL & ASSOCIATES (BERMUDA) )
LTD. was hereunto affixed )
in the presence of: )
)
)
)
)
/s/ John R. Talbot )
--------------------------------- )
Authorized Signatory )
)
)
)
/s/ Stephen W. Kempe )
--------------------------------- )
Authorized Signatory )
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<PAGE> 29
SCHEDULE "A"
FUNDS
1. Cundill Value Fund
2. Cundill Security Fund
