INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made this day of _____________, 1995 by
and between LEXINGTON SMALLCAP VALUE FUND, INC. a Maryland Corporation
having its principal place of business at Park 00 Xxxx, Xxxxx Xxx, Xxxxxx
Xxxxx, Xxx Xxxxxx 00000 (the "Fund") and LEXINGTON MANAGEMENT CORPORATION,
a Delaware corporation having its principal place of business at Park 00
Xxxx, Xxxxx Xxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 (the "Adviser"), with
respect to the following recital of fact:
RECITAL
The Fund and the Adviser desire to enter into an agreement to provide
for the management of the Fund's assets on the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Management. The Adviser shall act as investment adviser for the
Fund and shall, in such capacity, supervise the investment and reinvestment
of the cash, securities or other properties comprising the Fund's assets
subject at all times to the policies and control of the Fund's Board of
Directors. The Adviser shall give the Fund the benefit of its best
judgment, efforts and facilities in rendering its services as investment
Advisor.
2. Investment Analysis and Implementation. In carrying out its
obligation under paragraph 1 hereof, the Adviser shall:
(a) obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data, domestic,
foreign or otherwise, whether affecting the economy generally or the
portfolio of the Fund, the individual companies whose securities are
included in the Fund's portfolio or the industries in which they engage,
or with respect to securities which the Adviser considers desirable for
inclusion in the Fund's portfolio; and
(b) determine what industries and companies shall be represented
in the Fund's portfolio and regularly report them to the Fund's Board of
Directors; and
(c) formulate and implement programs for the purchases and sales
of the securities of such companies and regularly report thereon to the
Fund's Board of Directors; and
(d) provide the services of its personnel to the Fund; and
(e) take, on behalf of the Fund, all actions which appear to the
Fund necessary to carry into effect such purchase and sale programs and
supervisory functions as aforesaid, including the placing of orders for the
purchase and sale of portfolio securities.
3. Appointment of Sub-Adviser. Subject to the approval of the
Board and the shareholders of the Fund, the Adviser may enter into a Sub-
Advisory Agreement to engage a Sub-Adviser to the Adviser with respect to
the Fund. The Sub-Adviser shall render investment management services to
the Advisor in connection with the Adviser s responsibility to the Fund on
the terms and conditions hereinafter set forth.
a. Duties of Sub-Adviser.
Under a Sub-Advisory Agreement, the Sub-Adviser shall:
1. provide the Adviser with such economic research and
securities analysis as the Adviser may from time to time consider
necessary or advisable in connection with the Adviser s performance
of its duties hereunder;
2. obtain and evaluate pertinent information about
significant development and economic, statistical and financial data,
domestic, foreign or otherwise, whether affecting the economy
generally or the Fund.
b. Duties of the Adviser.
In the event the Adviser delegates certain
responsibilities hereunder to a Sub-Adviser, the Adviser shall, among
other things:
1. monitor the investment program maintained by the Sub-
Adviser for the Fund to ensure that the Fund s assets are invested
in compliance with the Sub-Advisory Agreement and the Fund s
Registration Statement;
2. consult with and assist the Sub-Adviser in
maintaining appropriate policies, procedures and records so that the
Sub-Adviser operates its business and any investment program
hereunder in compliance with applicable laws;
3. establish and maintain periodic communications with
the Sub-Adviser to share information it obtains with the Sub-Adviser
concerning the effect of developments and data on the investment
program maintained by the Sub-Adviser; and
4. oversee matters relating to Fund promotion, marketing
materials and the Sub-Adviser s reports to the Board.
4. Broker Dealer Relationships.
a. Portfolio Trades. The Adviser, at its own expense, shall
place all orders for the purchase and sale of portfolio securities
for the Fund with brokers or dealers selected by the Adviser, which
may include brokers or dealers affiliated with the Adviser. The
Adviser shall use its best efforts to seek to execute portfolio
transactions at prices that are advantageous to the Fund and at
commission rates that are reasonable in relation to the benefits
received.
b. Selection of Broker-Dealers. In selecting broker-dealers
qualified to execute a particular transaction, brokers or dealers may
be selected who also provide brokerage and research services (as
those terms are defined in Section 28(e) of the Securities Exchange
Act of 1934, as amended) to the Fund and/or the other accounts which
the Adviser or its affiliates exercise investment discretion. The
Adviser is authorized to pay a broker or dealer who provides such
brokerage and research services a commission for executing a
portfolio transactions for the Fund that is in excess of the amount
of commission another broker or dealer would have charged for
effecting that transaction if the Adviser determines in good faith
that such amount of commission is reasonable in relation to the value
of the brokerage and research services provided by such broker or
dealer. This determination may be viewed in terms of either that
particular transaction or the overall responsibilities that the
Adviser and its affiliates have with respect to accounts over which
they exercise investment discretion. The Board shall periodically
review the commissions paid by the Fund to determine if the
commissions paid over representative periods of time were reasonable
in relation to the benefits received.
5. Control by Board of Directors. Any investment program
undertaken by the Adviser pursuant to this Agreement, as well as any other
activities undertaken by the Adviser on behalf of the Fund pursuant
thereto, shall at all times be subject to any directives of the Board of
Directors of the Fund.
6. Compliance with Applicable Requirements. In carrying out its
obligations under this Agreement, the Adviser shall at all times conform
to:
(a) all applicable provisions of the Investment Company Act of 1940
(the "Act") and any rules and regulations adopted thereunder as amended;
and
(b) the provisions of the Registration Statement of the Fund under
the Securities Act of 1933 and the Investment Company Act of 1940, as
amended; and
(c) the provisions of the Articles of Incorporation of the Fund;
and
(d) the provisions of the By-Laws of the Fund; and
(e) any other applicable provisions of state and federal law.
7. Expenses. The expenses connected with the Fund shall be
allocable between the Fund and the Adviser as follows:
(a) The Adviser shall maintain, at its expense and without cost to
the Fund, a trading function in order to carry out its obligations under
subparagraph (d) of paragraph 2 hereof to place orders for the purchase and
sale of portfolio securities for the Fund.
(b) The Adviser shall pay the Fund's expenses for office rent,
utilities, telephone, furniture and supplies utilized at the Fund's
principal office.
(c) The Adviser shall pay salaries and payroll expenses of persons
serving as officers or Directors of the Fund who are also employees of the
Adviser or any of its affiliates.
(d) Nothing in subparagraph (a) through (e) hereof shall be
construed to require the Adviser to bear other expenses.
(e) Any of the other expenses incurred in the operation of the Fund
shall be borne by the Fund, including, among other things, fees of its
custodian, transfer and shareholder servicing agent; cost of pricing and
calculating its daily net asset value and of maintaining its books and
accounts required by the Investment Company act of 1940; expenditures in
connection with meetings of the Fund's Directors and shareholders, except
those called to accommodate the Advisor; fees and expenses of Directors who
are not affiliated with or interested persons of the Advisor; in
maintaining registration of its shares under state securities laws or in
providing shareholder and dealer services; insurance premiums on property
or personnel of the Fund which inure to its benefit; costs of preparing and
printing reports, proxy statements and prospectuses of the Fund for
distribution to its shareholders; legal, auditing and accounting fees; fees
and expenses of registering and maintaining registration of its shares for
sales under Federal and applicable state securities laws; and all other
expenses in connection with issuance, registration and transfer of its
shares.
8. Compensation. The Fund shall pay the Adviser in full
compensation for services rendered hereunder an annual investment advisory
fee, payable monthly equal to 1.00% of the Fund's average daily net assets.
9. Expense Limitation. If, for any fiscal year, the total of all
ordinary business expenses of the Fund, including all investment advisory
fees but excluding brokerage commissions and fees, taxes, interest and
extraordinary expenses such as litigation, would exceed the most
restrictive expense limits imposed by any statute or regulatory authority
of any jurisdiction in which the Fund's securities are offered as
determined in the manner described above as of the close of business on
each business day during such fiscal year, the aggregate of all such
investment management fees shall be reduced by the amount of such excess
but will not be required to reimburse the Fund for any ordinary business
expenses which exceed the amount of its advisory fee for the such fiscal
year. The amount of any such reduction to be borne by the Adviser shall
be deducted from the monthly investment advisory fee otherwise payable to
the Adviser during such fiscal year; and if such amount should exceed such
monthly fee, the Adviser agrees to repay to the Fund such amount of its
investment management fee previously received with respect to such fiscal
year as may be required to make up the deficiency no later than the last
day of the first month of the next succeeding fiscal year. For purposes
of this paragraph, the term "fiscal year" shall exclude the portion of the
current fiscal year which shall have elapsed prior to the date hereof and
shall include the portion of the then current fiscal year which shall have
elapsed at the date of termination of this Agreement.
10. Additional Services. Upon the request of the Board, the
Adviser may perform certain accounting, shareholder servicing or other
administrative services on behalf of the Fund that are not required by this
Agreement. Such services will be performed on behalf of the Fund and the
Adviser may receive from the Fund such reimbursement for costs or
reasonable compensation for such services as may be agreed upon between the
Adviser and the Board on a finding by the Board that the provision of such
services by the Adviser is in the best interests of the Fund and its
shareholders. Payment or assumption by the Adviser of any Fund expense
that the Adviser is not otherwise required to pay or assume under this
Agreement shall not relieve the Adviser of any of its obligations to the
Fund nor obligate the Adviser to pay or assume any similar Fund expense on
any subsequent occasions. Such services may include, but are not limited
to, (a) the services of a principal financial officer of the Fund
(including applicable office space, facilities and equipment) whose normal
duties consist of maintaining the financial accounts and books and records
of the Fund, and the services (including applicable office space,
facilities and equipment) of any of the personnel operating under the
direction of such principal financial officer; (b) the services of staff
to respond to shareholder inquiries concerning the status of their
accounts; providing assistance to shareholders in exchanges among the
investment companies managed or advised by the Adviser; changing account
designations or changing addresses; assisting in the purchase or redemption
of shares; or otherwise providing services to shareholders of the Fund; and
(c) such other administrative services as may be furnished from time to
time by the Adviser to the Fund at the request of the Board.
11. Term and Approval. This Agreement shall become effective at
the close of business on the date hereof and shall remain in force and
effect for two years and shall thereafter continue in force and effect from
year to year provided that such continuance is specifically approved at
least annually:
(a) (i) by the Fund's Board of Directors or (ii) by the vote of a
majority of the Fund's outstanding voting securities (as defined in Section
2(a)(42) of the 1940 Act), and
(b) by the affirmative vote of a majority of the Directors who are
not parties of this Agreement or interested persons of a party to the
Agreement (other than as Fund Directors), by votes cast in person at a
meeting specifically called for such purposes.
12. Termination. This Agreement may be terminated at any time,
without the payment of any penalty, by vote of the Fund's Board of
Directors or by vote of a majority of the Fund's outstanding voting
securities or by the Advisor, on sixty (60) days' written notice to the
other party. This Agreement shall automatically terminate in the event of
its assignment, the term "assignment" for the purposes having the meaning
defined in Section 2(a)(42) of the Investment Company Act of 1940.
13. Non-Exclusivity. The services of the Adviser to the Fund are
not to be deemed to be exclusive, and the Adviser shall be free to render
investment management and corporate administrative or other services to
others (including other investment companies) and to engage in other
activities, so long as its services under this Agreement are not impaired
thereby. It is understood and agreed that officers and directors of the
Adviser may serve as officers or Directors of the Fund, and that officers
or Directors of the Fund may serve as officers or Directors of the Adviser
to extent permitted by law; and that the officers and directors of the
Adviser are not prohibited from engaging in any other business activity or
from rendering services to any other person, or from serving as partners,
officers, directors or Directors of any other firm or corporation,
including other investment companies.
14. Liability of Adviser and Indemnification. In the absence of
willful misfeasance, bad faith, gross negligence or reckless disregard of
obligations or duties hereunder on the part of the Adviser or any of its
officers, directors or employees, it shall not be subject to liability to
the Fund or to any shareholder of the Fund for any act or omission in the
course of, or connected with, rendering services hereunder or for any
losses that may be sustained in the purchase, holding or sale of any
security.
15. Notices. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice.
Until further notice to the other party, it is agreed that the address of
the Adviser shall be Park 00 Xxxx, Xxxxx Xxx, Xxxxxx Xxxxx, Xxx Xxxxxx
00000, and that of the Fund for this purpose shall be Park 00 Xxxx, Xxxxx
Xxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000.
16. Questions of Interpretation. Any question of interpretation
of any term or provision of this Agreement having a counterpart in or
otherwise derived from a term or provision of the Investment Company Act
of 1940, as amended, shall be resolved by reference to such term or
provision of the Act and to interpretations thereof, if any, by the United
States Courts or in the absence of any controlling decision of any such
court, by rules, regulations or orders of the Securities and Exchange
Commission issued pursuant to said Act. In addition, where the effect of
a requirement of the Investment Company Act of 1940, as amended, reflected
in any provision of this Agreement is released by rules, regulations or
order of the Securities and Exchange Commission, such provisions shall be
deemed to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in duplicate by their respective officers on the day and year
first above written.
LEXINGTON SMALLCAP VALUE FUND, INC.
Attest: By_______________________________
President
_________________________
LEXINGTON MANAGEMENT CORPORATION
By______________________________
Executive Vice President
Attest
_________________________
