Exhibit 23(d)
MANAGEMENT AGREEMENT
AS IN EFFECT DECEMBER 10, 1986
AGREEMENT made this 30th day of October, 1978 by and between LORD XXXXXX
DEVELOPING GROWTH FUND, INC., a Maryland corporation (hereinafter called the
"Corporation"), and LORD, XXXXXX & CO., a New York partnership (hereinafter
called the "Investment Manager").
WHEREAS, the Corporation desires to obtain the investment management
services of the Investment Manager and the Investment Manager is willing to
provide services of the nature desired upon the terms and conditions hereinafter
provided.
NOW, THEREFORE, in consideration of the mutual covenants and of other good
and valuable consideration, receipt of which is hereby acknowledged, it is
agreed as follows:
1. The Corporation hereby employs the Investment Manager under the terms
and conditions of this Agreement, and the Investment Manager hereby accepts such
employment and agrees to perform supervisory functions of the Corporation with
respect to the investment and reinvestment of its property and assets (whether
or not held in trust or in the custody of a bank or trust company subject to the
Corporation's direction or control) including without limitation, the
supervision of its investment portfolio and the recommendation of investment
policies and procedures within the limitations set forth in the Corporation's
Registration Statements on file with the Securities and Exchange Commission
under the Securities Act of 1933 and the Investment Company Act of 1940.
The Investment Manager agrees to maintain an adequate organization of
competent persons to perform the supervisory functions mentioned herein.
All recommendations with respect to the investment portfolio will be made
to the Corporation's trading department which, with the approval of authorized
officers of the Corporation, will execute all trades in accordance with the
Corporation's investment procedures.
The investment Manager reserves the right, in its discretion, to purchase
or otherwise obtain statistical information and services from other sources,
including affiliated persons of the Investment Manager.
Notwithstanding the provisions of this paragraph 1, the investment policies
and procedures and all other action of the Corporation are, and shall at all
times be, subject to the control and direction of its Board of Directors.
2. The Corporation agrees to pay the Investment Manager for its services
under this Agreement and for the expenses assumed, a management fee computed and
payable monthly at
the annual rate of three-quarters (3/4) of one percent (1%) of the value of the
Corporation's average daily net assets which does not exceed $100,000,000, and
one-half (1/2) of one percent (1%) of such value which is in excess of
$100,000,000. The value of the net assets of the Corporation shall include all
assets held in trust or in custody of any bank, savings bank or trust company
for the Corporation, subject to its control or direction, and shall be
determined as provided in the Articles of Incorporation of the Corporation. The
fee shall be paid on the first day of each month for the preceding month.
The investment Manager may receive research and other statistical
information from broker-dealers and from other sources and, in accordance with
section 28(e) of the Securities Exchange Act of 1934, a broker-dealer may be
paid a commission for a transaction involving portfolio securities of the
Corporation exceeding the amount another broker-dealer would have charged for
the same transaction if it is determined by the Investment Manager that such
amount of commission is reasonable in relation to the value of the research
services provided by the executing broker-dealer, viewed in terms of either the
particular transaction or the overall responsibilities of the Investment Manager
with respect to the Corporation and other accounts (investment companies and
other investment clients) with respect to which it exercises investment
discretion. Such research services may be used by the Investment Manager in
serving all its accounts, and not all of such research services need necessarily
be used by the Investment Manager in connection with its services to the
Corporation.
It is understood that any supplemental advisory or statistical services
which may be provided to the Corporation or to the Investment Manager from time
to time by independent broker-dealers or persons other than the Investment
Manager, for whatever reason, shall not reduce the amount of the fees payable to
the Investment Manager hereunder. It is recognized that such supplementary
advisory or statistical services may be useful to the Investment Manager and the
Corporation, but their value is indeterminable and is not to be considered a
substitute for the services provided by the Investment Manager hereunder.
3. It is understood that the services of the Investment Manager are not
deemed to be exclusive, and nothing in this Agreement shall prevent the
Investment Manager, or any officer, director, partner or employee thereof, from
providing similar services to other investment companies and other clients
(whether or not their investment objectives and policies are similar to those of
the Corporation) or to engage in other activities. When other clients of the
Investment Manager desire to purchase or sell the same portfolio security at the
same time as the Corporation, it is understood that such purchases and sales
will be made as nearly as practicable on a pro rata basis in proportion to the
amounts desired to be purchased or sold by each client.
4. The Corporation will, at its own expense, furnish to the Investment
Manager periodic (but not less than semi-annually) statements of its books of
account, including balance sheets and earnings statements, and all other
information which may reasonably be required, from time to time, by the
Investment Manager, and will, at its own expense, at all times keep the
Investment Manager fully advised as to the cash, securities and other property
then comprising its assets, and furnish daily detailed price makeup sheets with
respect to its investment portfolio and shares of its capital stock.
5. The Investment Manager shall be under no obligation to pay any fees,
costs, expenses or other charges of the Corporation, except the compensation of
its officer, the compensation, if any, of its directors who are affiliated with
the Investment Manager, rental for its office space, and except for its ordinary
and necessary office and clerical expenses relating to research, statistical
work and supervision of the Corporation's investment portfolio, to be performed
by the Investment Manager under paragraph 1 of this Agreement. The corporation
will pay all other fees, cost, expenses or charges relating to its assets and
operations, including without limitation, office and clerical expenses not
relating to research, statistical work and supervision of the Corporation's
investment portfolio, fees and expenses of directors not affiliated with the
Investment Manager, governmental fees, interest charges, taxes, association
membership dues, fees and charges for legal and auditing services; fees and
expenses of any custodians or trustees with respect to custody of its assets;
fees, charges and expenses of dividend disbursing agents, registrars and
transfer agents (including the cost of keeping all necessary shareholder records
and accounts, and handling any problems relating thereto and the expense of
furnishing to all shareholders including the expense of mailing); cost and
expense of repurchase and redemption of its shares; cost and expense of
preparing, printing and mailing stock certificates and reports, notices and
proxy statements to shareholders and cost of preparing reports to governmental
agencies; brokerage fees and commissions of every kind and expenses in
connection with the execution of portfolio security transactions (including the
cost of any service or agency designed to facilitate the purchase and sale of
portfolio securities); all postage; insurance premiums; and any other fee, cost,
expense or charge of any kind not expressly assumed by the Investment Manager
under this Agreement.
Notwithstanding any other provision of this Agreement, if expenses
(including the management fee hereunder but excluding interest, taxes, brokerage
fees, and where permitted, extraordinary expenses) borne by the Corporation in
any fiscal year exceed expense limitations applicable to the Corporation imposed
by state securities administrators, as such limitations may be lowered or raised
from time to time, the Investment Manager will reimburse the Corporation for any
such excess.
If the Investment Manager pays for other expenses of the Corporation or
furnishes the Corporation with services the cost of which is to be borne by the
Corporation under this Agreement, the Investment Manager shall not be deemed to
have waived its rights under this Agreement to have the Corporation pay for such
expenses or provide such services in the future.
6. The Investment Manager agrees that it shall observe and be bound by all
of the provisions of the Articles of Incorporation (including any amendments
thereto) of the Corporation which shall in any way limit or restrict or prohibit
or otherwise regulate any action by the Investment Manager.
7. The Investment Manager assumes no responsibility under this Agreement
other than to render the services called for hereunder in good faith, and the
Investment Manager shall not be held liable or accountable for any mistakes of
law or fact, or for any error or omission of its officers, directors, partners
or employees, or for any loss or damage arising or resulting therefrom suffered
by the Corporation or any of its stockholders, creditors, directors or officers;
provided however, that nothing herein shall be deemed to protect the Investment
Manager against any liability to the Corporation or to its stockholders by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties hereunder, or by reason of the reckless disregard of its
obligations and duties hereunder. The Investment Manager shall not be
responsible for any action of the Board of Directors of the Corporation in
following or declining to follow any advice or recommendation of the Investment
Manager.
8. Neither this Agreement nor any other transaction between the parties
hereto pursuant to this Agreement shall be invalidated or in any way affected by
the fact that any or all of the directors, officers, stockholders, or other
representatives of the Corporation are or may be interested in the Investment
Manager, or any successor or assignee thereof, or that any or all of the
directors, officers, partners, or other representatives of the Investment
Manager are or may be interested in the Corporation, except as otherwise may be
provided in the Investment Company Act of 1940. The Investment Manager in acting
hereunder shall be an independent contractor and not an agent of the
Corporation.
9. This Agreement shall become effective upon the effective date of the
merger of Lord Xxxxxx Developing Growth Fund, Inc. into the Corporation, subject
to shareholder approval, and shall continue in force for two years from the date
thereof, and is renewable annually thereafter by specific approval of the Board
of Directors of the Corporation or by vote of a majority of the outstanding
voting securities of the Corporation; any such renewal shall be approved by the
vote of a majority of the directors who are not parties to this Agreement or
interested persons of the Investment Manager or of the Corporation, cast in
person at a meeting called for the purpose of voting on such renewal.
This Agreement may be terminated without penalty at any time by the
Corporation upon 60 days written notice. This Agreement shall automatically
terminate in the event of its assignment. The terms "interested persons", or
"assignment" and "vote of a majority of the outstanding voting securities" shall
have the same meanings as those terms are defined in the Investment Company Act
of 1940.
10. The Investment Manager reserves the right to grant the use of the name
"LORD XXXXXX" or "LORD, XXXXXX & CO.", or any derivative thereof, to any other
investment company or business enterprise. The Investment Manager reserves the
right to withdraw from the Corporation the use of the name "LORD XXXXXX" and the
use of its registered service xxxx; at such time of withdrawal of the right to
use the name "LORD XXXXXX", the Investment Manager agrees that the question of
continuing this Agreement may be submitted to a vote of the Corporation's
shareholders. In the event of such withdrawal or the termination of this
Agreement, for any reason, the Corporation will, on the written request of the
Investment Manager, take such action as may be necessary to change its name and
eliminate all reference to the words "LORD XXXXXX" in any form, and will no
longer use such registered service xxxx.
IN WITNESS WHEREOF the Corporation has caused this Agreement to be executed
by its duly authorized officers and its corporate seal to be affixed hereto, and
the Investment Manager has caused this Agreement to be executed by one of its
partners, all on the day and year first above written.
LORD XXXXXX DEVELOPING GROWTH FUND, INC
By s/ Xxxxx X. Xxxxxx
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Vice President
s/ Xxxxxxx X. Xxxxxx
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Secretary
LORD, XXXXXX & CO.
By s/ Xxxxxx X. Driscoli
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A Partner
