Exhibit (d)
FORM OF INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this ___ day of September, 2000 between Lexington
Emerging Markets Fund, Inc. (the "Fund"), a Maryland corporation, and Pilgrim
Investments, Inc. (the "Manager"), a Delaware corporation (the "Agreement").
WHEREAS, the Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Fund is authorized to issue shares of common stock in
separate series with each such series representing interests in a separate
portfolio of securities and other assets;
WHEREAS, the Fund may offer shares of additional series in the future;
WHEREAS, the Fund desires to avail itself of the services of the
Manager for the provision of advisory and management services for the Fund; and
WHEREAS, the Manager is willing to render such services to the Fund;
NOW, THEREFORE, in consideration of the premises, the promises and
mutual covenants herein contained, it is agreed between the parties as follows:
1. Appointment. The Fund hereby appoints the Manager, subject to the
-----------
direction of the Board of Directors, for the period and on the terms set forth
in this Agreement, to provide advisory, management, and other services, as
described herein, with respect to the Lexington Emerging Markets Fund series of
the Fund (referred to herein as "Series"). The Manager accepts such appointment
and agrees to render the services herein set forth for the compensation herein
provided.
In the event the Fund establishes and designates additional series with
respect to which it desires to retain the Manager to render advisory services
hereunder, it shall notify the Manager in writing. If the Manager is willing to
render such services, it shall notify the Fund in writing, whereupon such
additional series shall become a Series hereunder.
2. Services of the Manager. The Manager represents and warrants that it
-----------------------
is registered as an investment adviser under the Investment Advisers Act of 1940
and will maintain such registration for so long as required by applicable law.
Subject to the general supervision of the Board of Directors of the Fund, the
Manager shall provide the following advisory, management, and other services
with respect to the Series:
(a) Provide general, investment advice and guidance with
respect to the Series and provide advice and guidance to the Fund's Directors,
and oversee the management of the investments of the Series and the composition
of each Series' portfolio of securities and investments, including cash, and the
purchase, retention and disposition thereof, in accordance with each Series'
investment objective or objectives and policies as stated in the Fund's current
registration statement, which management may be provided by others selected by
the Manager and approved by the Board of Directors as provided below or directly
by the Manager as provided in Section 3 of this Agreement;
(b) In the event that the Manager wishes to select others to
render investment management services, the Manager shall analyze, select and
recommend for consideration and approval by the Fund's Board of Directors
investment advisory firms (however organized) to provide investment advice to
one or more of the Series, and, at the expense of the Manager, engage (which
engagement may also be by the Fund) such investment advisory firms to render
investment advice and manage the investments of such Series and the composition
of each such Series' portfolio of securities and investments, including cash,
and the purchase, retention and disposition thereof, in accordance with the
Series' investment objective or objectives and policies as stated in the Fund's
current registration statement (any such firms approved by the Board of
Directors and engaged by the Fund and/or the Manager are referred to herein as
"Sub-Advisers");
(c) Periodically monitor and evaluate the performance of the
Sub-Advisers with respect to the investment objectives and policies of the
Series;
(d) Monitor the Sub-Advisers for compliance with the investment
objective or objectives, policies and restrictions of each Series, the 1940 Act,
Subchapter M of the Internal Revenue Code, and if applicable, regulations under
such provisions, and other applicable law;
(e) If appropriate, analyze and recommend for consideration by
the Fund's Board of Directors termination of a contract with a Sub-Adviser under
which the Sub-Adviser provides investment advisory services to one or more of
the Series;
(f) Supervise Sub-Advisers with respect to the services that
such Sub-Advisers provide under respective portfolio management agreements
("Sub-Adviser Agreements");
(g) Render to the Board of Directors of the Fund such periodic
and special reports as the Board may reasonably request; and
(h) Make available its officers and employees to the Board of
Directors and officers of the Fund for consultation and discussions regarding
the administration and management of the Series and services provided to the
Fund under this Agreement.
3. Investment Management Authority. In the event the Manager wishes
-------------------------------
to render investment management services directly to a Series, then with respect
to any such Series, the Manager, subject to the supervision of the Fund's Board
of Directors, will provide a continuous investment program for the Series'
portfolio and determine the composition of the assets of the Series' portfolio,
including determination of the purchase, retention, or sale of the securities,
cash, and other investments contained in the portfolio. The Manager will provide
investment research and conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Series' assets by determining the securities and
other investments that shall be purchased, entered into, sold, closed, offered
to the public, or exchanged for the Series, when these transactions should be
executed, and what portion of the assets of the Series should be held in the
various securities and other investments in which it may invest, and the Manager
is hereby authorized to execute and perform such services on behalf of the
Series. To the extent permitted by the investment policies of the Series, the
Manager shall make decisions for the Series as to foreign currency matters and
make determinations as to, and execute and perform, foreign currency exchange
contracts on behalf of the Series. The Manager will provide the services under
this Agreement in accordance with the Series' investment objective or
objectives, policies, and restrictions as stated in the Fund's Registration
Statement filed with the Securities and Exchange Commission (the "SEC"), as
amended. Furthermore:
-2-
(a) The Manager will manage the Series so that each will
qualify as a regulated investment company under Subchapter M of the Internal
Revenue Code. In managing the Series in accordance with these requirements, the
Manager shall be entitled to receive and act upon advice of counsel to the Fund
or counsel to the Manager.
(b) The Manager will conform with the 1940 Act and all rules
and regulations thereunder, all other applicable federal and state laws and
regulations, with any applicable procedures adopted by the Fund's Board of
Directors, and the provisions of the Registration Statement of the Fund under
the Securities Act of 1933 and the 1940 Act, as supplemented or amended.
(c) On occasions when the Manager deems the purchase or sale
of a security to be in the best interest of the Series as well as any other
investment advisory clients, the Manager may, to the extent permitted by
applicable laws and regulations and any applicable procedures adopted by the
Fund's Board of Directors, but shall not be obligated to, aggregate the
securities to be so sold or purchased with those of its other clients where such
aggregation is not inconsistent with the policies set forth in the Registration
Statement. In such event, allocation of the securities so purchased or sold, as
well as the expenses incurred in the transaction, will be made by the Manager in
a manner that is fair and equitable in the judgment of the Manager in the
exercise of its fiduciary obligations to the Fund and to such other clients.
(d) In connection with the purchase and sale of securities of
the Series, the Manager will arrange for the transmission to the custodian for
the Fund on a daily basis, of such confirmation, trade tickets, and other
documents and information, including, but not limited to, Cusip, Cedel, or other
numbers that identify securities to be purchased or sold on behalf of the
Series, as may be reasonably necessary to enable the custodian to perform its
administrative and recordkeeping responsibilities with respect to the Series.
With respect to portfolio securities to be purchased or sold through the
Depository Trust Company, the Manager will arrange for the prompt transmission
of the confirmation of such trades to the Fund's custodian.
(e) The Manager will assist the custodian or portfolio
accounting agent for the Fund in determining, consistent with the procedures and
policies stated in the Registration Statement for the Fund and any applicable
procedures adopted by the Fund's Board of Directors, the value of any portfolio
securities or other assets of the Series for which the custodian or portfolio
accounting agent seeks assistance or review from the Manager.
(f) The Manager will make available to the Fund, promptly upon
request, any of the Series' or the Manager's investment records and ledgers as
are necessary to assist the Fund to comply with requirements of the 1940 Act, as
well as other applicable laws. The Manager will furnish to regulatory
authorities having the requisite authority any information or reports in
connection with its services which may be requested in order to ascertain
whether the operations of the Fund are being conducted in a manner consistent
with applicable laws and regulations.
(g) The Manager will regularly report to the Fund's Board of
Directors on the investment program for the Series and the issuers and
securities represented in the Series' portfolio, and will furnish the Fund's
Board of Directors with respect to the Series such periodic and special reports
as the Directors may reasonably request.
(h) In connection with its responsibilities under this Section
3, the Manager is responsible for decisions to buy and sell securities and other
investments for the Series' portfolio, broker-dealer selection, and negotiation
of brokerage commission rates. The Manager's primary
-3-
consideration in effecting a security transaction will be to obtain the best
execution for the Series, taking into account the factors specified in the
Prospectus and/or Statement of Additional Information for the Fund, which
include price (including the applicable brokerage commission or dollar spread),
the size of the order, the nature of the market for the security, the timing of
the transaction, the reputation, experience and financial stability of the
broker-dealer involved, the quality of the service, the difficulty of execution,
execution capabilities and operational facilities of the firms involved, and the
firm's risk in positioning a block of securities. Accordingly, the price to the
Series in any transaction may be less favorable than that available from another
broker-dealer if the difference is reasonably justified, in the judgment of the
Manager in the exercise of its fiduciary obligations to the Fund, by other
aspects of the portfolio execution services offered. Subject to such policies as
the Board of Directors may determine and consistent with Section 28(e) of the
Securities Exchange Act of 1934, as amended, the Manager shall not be deemed to
have acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused the Series to pay a broker-
dealer for effecting a portfolio investment transaction in excess of the amount
of commission another broker-dealer would have charged for effecting that
transaction, if the Manager determines in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker-dealer, viewed in terms of either that
particular transaction or the Manager's overall responsibilities with respect to
the Series and to its other clients as to which it exercises investment
discretion. To the extent consistent with these standards and in accordance with
Section 11(a) of the Securities Exchange Act of 1934 and Rule 11a2-2(T)
thereunder, the Manager is further authorized to allocate the orders placed by
it on behalf of the Series to the Manager if it is registered as a broker-dealer
with the SEC, to an affiliated broker-dealer, or to such brokers and dealers who
also provide research or statistical material or other services to the Series,
the Manager or an affiliate of the Manager. Such allocation shall be in such
amounts and proportions as the Manager shall determine consistent with the above
standards, and the Manager will report on said allocation regularly to the Board
of Directors of the Fund indicating the broker-dealers to which such allocations
have been made and the basis therefor.
4. Conformity with Applicable Law. The Manager, in the performance
------------------------------
of its duties and obligations under this Agreement, shall act in conformity with
the Registration Statement of the Fund and with the instructions and directions
of the Board of Directors of the Fund and will conform to, and comply with, the
requirements of the 1940 Act and all other applicable federal and state laws and
regulations.
5. Exclusivity. The services of the Manager to the Fund under this
-----------
Agreement are not to be deemed exclusive, and the Manager, or any affiliate
thereof, shall be free to render similar services to other investment companies
and other clients (whether or not their investment objectives and policies are
similar to those of any of the Series) and to engage in other activities, so
long as its services hereunder are not impaired thereby.
6. Documents. The Fund has delivered properly certified or
---------
authenticated copies of each of the following documents to the Manager and will
deliver to it all future amendments and supplements thereto, if any:
(a) certified resolution of the Board of Directors of the Fund
authorizing the appointment of the Manager and approving the form of this
Agreement;
(b) the Registration Statement as filed with the SEC and any
amendments thereto; and
-4-
(c) exhibits, powers of attorney, certificates and any and all
other documents relating to or filed in connection with the Registration
Statement described above.
7. Records. The Fund agrees to maintain and to preserve for the
-------
periods prescribed under the 1940 Act any such records as are required to be
maintained by the Fund with respect to the Series by the 1940 Act. The Manager
further agrees that all records of the Series are the property of the Fund and,
to the extent held by the Manager, it will promptly surrender any of such
records upon request.
8. Expenses. During the term of this Agreement, the Manager will pay
--------
all expenses incurred by it in connection with its activities under this
Agreement, except such expenses as are assumed by the Fund under this Agreement
and such expenses as are assumed by a Sub-Adviser under its Sub-Adviser
Agreement. The Manager further agrees to pay all fees payable to the
Sub-Advisers, executive salaries and expenses of the Directors of the Fund who
are employees of the Manager or its affiliates, and office rent of the Fund. The
Fund shall be responsible for all of the other expenses of its operations,
including, without limitation, the management fee payable hereunder; brokerage
commissions; interest; legal fees and expenses of attorneys; fees of auditors,
transfer agents and dividend disbursing agents, custodians and shareholder
servicing agents; the expense of obtaining quotations for calculating each
Fund's net asset value; taxes, if any, and the preparation of the Fund's tax
returns; cost of stock certificates and any other expenses (including clerical
expenses) of issue, sale, repurchase or redemption of shares; expenses of
registering and qualifying shares of the Fund under federal and state laws and
regulations (including the salary of employees of the Manager engaged in the
registering and qualifying of shares of the Fund under federal and state laws
and regulations or a pro-rata portion of the salary of employees to the extent
so engaged); salaries of personnel involved in placing orders for the execution
of the Fund's portfolio transactions; expenses of disposition or offering any of
the portfolio securities held by a Series; expenses of printing and distributing
reports, notices and proxy materials to existing shareholders; expenses of
printing and filing reports and other documents filed with governmental
agencies; expenses in connection with shareholder and director meetings;
expenses of printing and distributing prospectuses and statements of additional
information to existing shareholders; fees and expenses of Directors of the Fund
who are not employees of the Manager or any Sub-Adviser, or their affiliates;
trade association dues; insurance premiums; extraordinary expenses such as
litigation expenses. To the extent the Manager incurs any costs or performs any
services which are an obligation of the Fund, as set forth herein, the Fund
shall promptly reimburse the Manager for such costs and expenses. To the extent
the services for which the Fund is obligated to pay are performed by the
Manager, the Manager shall be entitled to recover from the Fund only to the
extent of its costs for such services.
9. Compensation. For the services provided by the Manager to each
------------
Series pursuant to this Agreement, the Fund will pay to the Manager an annual
fee equal to 0.85% of the Series' average daily net assets, payable monthly in
arrears. Payment of the above fees shall be in addition to any amount paid to
the Manager for the salary of its employees for performing services which are an
obligation of the Fund as provided in Section 8. The fee will be appropriately
pro-rated to reflect any portion of a calendar month that this Agreement is not
in effect between us.
10. Liability of the Manager. The Manager may rely on information
------------------------
reasonably believed by it to be accurate and reliable. Except as may otherwise
be required by the 1940 Act or the rules thereunder, neither the Manager nor its
stockholders, officers, directors, employees, or agents shall be subject to, and
the Fund will indemnify such persons from and against, any liability for, or any
damages, expenses, or losses incurred in connection with, any act or omission
connected with or arising out of any services rendered under this Agreement,
except by reason of willful misfeasance, bad faith, or gross negligence in the
performance of the Manager's duties, or by reason of reckless disregard of the
-5-
Manager's obligations and duties under this Agreement. Except as may otherwise
be required by the 1940 Act or the rules thereunder, neither the Manager nor its
stockholders, officers, directors, employees, or agents shall be subject to, and
the Fund will indemnify such persons from and against, any liability for, or any
damages, expenses, or losses incurred in connection with, any act or omission by
a Sub-Adviser or any of the Sub-Adviser's stockholders or partners, officers,
directors, employees, or agents connected with or arising out of any services
rendered under a Sub-Adviser Agreement, except by reason of willful misfeasance,
bad faith, or gross negligence in the performance of the Manager's duties under
this Agreement, or by reason of reckless disregard of the Manager's obligations
and duties under this Agreement. No director, officer, employee or agent of the
Fund shall be subject to any personal liability whatsoever, in his or her
official capacity, to any person, including the Sub-Adviser, other than to the
Fund or its shareholders, in connection with Fund property or the affairs of the
Fund, save only that arising from his or her bad faith, willful misfeasance,
gross negligence or reckless disregard of his or her duty to such person; and
all such persons shall look solely to the Fund property for satisfaction of
claims of any nature against a director, officer, employee or agent of the Fund
arising in connection with the affairs of the Fund. Moreover, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a Series shall be enforceable against the assets and
property of that Series only, and not against the assets or property of any
other series of the Fund.
11. Continuation and Termination. This Agreement shall become
----------------------------
effective on the date first written above, subject to the condition that the
Fund's Board of Directors, including a majority of those Directors who are not
interested persons (as such term is defined in the ▇▇▇▇ ▇▇▇) of the Manager, and
the shareholders of each Series, shall have approved this Agreement. Unless
terminated as provided herein, the Agreement shall continue in full force and
effect for two (2) years from the effective date of this Agreement, and shall
continue from year to year thereafter with respect to each Series so long as
such continuance is specifically approved at least annually (i) by the vote of a
majority of the Board of Directors of the Fund, or (ii) by vote of a majority of
the outstanding voting shares of the Series (as defined in the 1940 Act), and
provided continuance is also approved by the vote of a majority of the Board of
Directors of the Fund who are not parties to this Agreement or "interested
persons" (as defined in the ▇▇▇▇ ▇▇▇) of the Fund or the Manager, cast in person
at a meeting called for the purpose of voting on such approval. This Agreement
may not be amended in any material respect without a majority vote of the
outstanding voting shares (as defined in the 1940 Act).
However, any approval of this Agreement by the holders of a majority
of the outstanding shares (as defined in the ▇▇▇▇ ▇▇▇) of a Series shall be
effective to continue this Agreement with respect to such Series notwithstanding
(i) that this Agreement has not been approved by the holders of a majority of
the outstanding shares of any other Series or (ii) that this Agreement has not
been approved by the vote of a majority of the outstanding shares of the Fund,
unless such approval shall be required by any other applicable law or otherwise.
This Agreement may be terminated by the Fund at any time, in its entirety or
with respect to a Series, without the payment of any penalty, by vote of a
majority of the Board of Directors of the Fund or by a vote of a majority of the
outstanding voting shares of the Fund, or with respect to a Series, by vote of a
majority of the outstanding voting shares of such Series, on sixty (60) days'
written notice to the Manager, or by the Manager at any time, without the
payment of any penalty, on sixty (60) days' written notice to the Fund. This
Agreement will automatically and immediately terminate in the event of its
"assignment" as described in the 1940 Act.
12. Use of Name. It is understood that the name "Pilgrim Investments,
-----------
Inc." or any derivative thereof (including the name "Pilgrim") or logo
associated with that name is the valuable property of the Manager and its
affiliates, and that the Fund and/or the Series have the right to use such name
(or derivative or logo) only so long as this Agreement shall continue with
respect to such Fund and/or Series. Upon termination of this Agreement, the Fund
(or Series) shall forthwith cease to use
-6-
such name (or derivative or logo) and, in the case of the Fund, shall promptly
amend its Articles of Incorporation to change its name (if such name is included
therein).
13. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original.
14. Applicable Law.
--------------
(a) This Agreement shall be governed by the laws of the State
of Arizona, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Investment Advisers Act of 1940, or any
rules or order of the SEC thereunder.
(b) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby and, to this extent, the provisions of
this Agreement shall be deemed to be severable.
(c) The captions of this Agreement are included for convenience
only and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
LEXINGTON EMERGING MARKETS FUND, INC.
---------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
PILGRIM INVESTMENTS, INC.
---------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Executive Vice President
-7-
