Exhibit 5(e)
Form of Sub-Sub-Advisory Agreement among Orbitex Group of Funds, Orbitex
Management, Inc., Bankers Trust Company and BT Funds Management (International)
Limited
SUB-SUBADVISORY AGREEMENT
This Sub-Subadvisory Agreement is made and entered into on this day of
1997, by BT Fund Managers International Limited (the "Sub-Sub-Adviser"), a
wholly-owned subsidiary of Bankers Trust Australia Limited (located in Sydney,
Australia) which, in turn, is wholly-owned subsidiary of Bankers Trust New York
Corporation ("BTNY"), a bank holding company located in New York, and Bankers
Trust Company (the "Sub-Adviser"), a New York banking corporation which is also
a wholly-owned subsidiary of BTNY, Orbitex Management, Inc., a New York
corporation (the "Adviser, and Orbitex Group of Funds a Delaware business trust
(the "Trust").
WITNESSETH
WHEREAS, the "Adviser" is engaged pursuant to an Investment Advisory
Agreement (the "Advisory Agreement") with the Trust in the investment of the
Trust's assets in accordance with the Trust's Prospectus and Statement of
Additional Information (collectively the "Prospectus"); and
WHEREAS, pursuant to the Advisory Agreement, the Adviser may delegate
its responsibilities for the management of the investment of the assets of one
or more Funds of the Trust to one or more sub-advisers, and
WHEREAS, pursuant to a Sub-Advisory Agreement among the Trust, Adviser
and Sub-Adviser (the "Sub-Advisory Agreement") the Adviser has delegated
responsibility for management of the investments of one or more Funds of the
Trust to the Sub-Adviser and the Sub-Adviser has agreed to managed the
investment of one or more Funds in accordance with this Sub-Advisory Agreement
and Prospectus; and
WHEREAS, pursuant to the Sub-Advisory Agreement, the Sub-Adviser may
delegate its responsibilities for the management of the investment of the
Fund(s) which it has assumed therein to one or more Sub-Sub-Advisers, and
WHEREAS, the Sub-Adviser desires to so delegate responsibility for
management of the investments of one or more Funds of the Trust to the
Sub-Sub-Adviser, the Sub-Sub-Adviser agrees to manage the investment of one or
more Funds in accordance with this Sub-Subadvisory Agreement and the Prospectus;
NOW THEREFORE:, in consideration of the premises and mutual promises
hereinafter set forth, the parties hereto agree as follows;
1. The Sub-Adviser hereby appoints the Sub-Sub-Adviser to act as the investment
advisor to the Sub-Adviser with respect to one or more funds (individually or
collectively the "Fund" as identified in "Schedule A", which is attached hereto
and by this reference is incorporated herein. The Sub-Sub-Adviser hereby accepts
such appointment and agrees to render the services herein set forth for the
compensation set forth on Schedule B, which is attached hereto and by this
reference is incorporated herein. The Sub-Adviser represents to the
Sub-Sub-Adviser that it is authorized pursuant to the Sub-Advisory Agreement to
delegate to the Sub-Sub-Adviser all of the services to be performed by the
Sub-Sub-Adviser pursuant hereto.
2. Subject to the supervision of the Trustees of the Trust and the Adviser and
Sub-Adviser the Sub-Sub-Adviser will manage the securities and investments
(including cash) of the Fund, including the purchase, retention and disposition
thereof, and the execution of agreements relating thereto in accordance with the
Fund's investment objectives, policies and restriction as those are stated in
the Prospectus and further subject to the following understandings:
(a) The Sub-Sub-Adviser shall furnish a continuous investment program
to the Fund and in doing so shall determine from time to time what investments
or securities will be purchased, retained or sold by the Fund, and what portions
of the assets will be invested or held uninvested as cash;
(b) The Sub-Sub-Adviser, in the performance of its duties and
obligations under this Agreement shall act in conformity with the requirements
of the Declaration of Trust, Bylaws and the Prospectus of the Trust, and with
the instructions and directions of the Trustees of the Trust and, to the extent
consistent therewith and herewith, of the Adviser and/or Sub-Adviser, and will
conform to and comply with the requirements of the Investment Company Act of
1940, as amended (the "1940 Act"), and all other applicable federal and state
laws and regulations;
(c) The Sub-Sub-Adviser shall determine the securities to be purchased
or sold by the Fund and, as agent for the Fund, will effect transactions
pursuant to its determinations either directly with the issuer or with or
through any broker and/or dealer in such securities. The Sub-Sub-Adviser shall
also determine whether or not the Fund shall enter into repurchase agreements or
engage in any other investment transactions or techniques that are consistent
with subsection (b) above;
(d) The Sub-Sub-Adviser shall maintain such books and records as are
required by the 1940 Act or other applicable law with respect to the securities
transactions of the Fund and shall render to the Adviser or Sub-Adviser or
either of their designees, such periodic and special reports as they may
reasonably request;
(e) The Sub-Sub-Adviser shall, to the extent the information is within
its reasonable control, provide or cause to be provided to the Trust's Custodian
all requested information relating to all transactions concerning the assets of
the Fund (other than share transactions of the Fund). The Trust shall ensure
that its Custodian complies with the Sub-Sub-Adviser's instructions provided
that such instructions are authorized pursuant to this Agreement;
(f) The investment advisory services of the Sub-Sub-Adviser to the Fund
under its Sub-Subadvisory Agreement are not to be deemed exclusive, and the
Sub-Sub-Adviser shall be free to render similar services to others;
(g) The Sub-Sub-Adviser is authorized subject to the supervision of the
Adviser, Sub-Adviser and the Trustees of the Trust, to place orders for the
purchase and sale of the Fund's investments with or through such persons,
brokers or dealers, including the Sub-Sub-Adviser or affiliates thereof and to
negotiate commissions to be paid in such transactions in accordance with the
Fund's policy with respect to brokerage as set forth in the Prospectus. The
Sub-Sub-Adviser may, on behalf of the Fund, pay brokerage commissions to a
broker which provides brokerage and research services to the Sub-Sub-Adviser in
excess of the amount another broker would have charged for effecting the
transaction, provided the Sub-Sub-Adviser determines in good faith that the
amount is reasonable in relation to the value of the brokerage and research
services provided by the executing broker in terms of the particular transaction
or in terms of the Sub-Sub-Adviser's overall responsibilities with respect to
the Fund and the accounts as to which the Sub-Sub-Adviser exercises investment
discretion. It is recognized
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that the services provided by such brokers may be useful to the Sub-Sub-Adviser
in connection with the Sub-Adviser's services to other clients;
(h) On occasions when the Sub-Sub-Adviser deems the purchase or sale of
a security to be in the best interest of the Fund as well as other customers,
the Sub-Sub-Adviser may, to the extent permitted by applicable law and
regulations, but shall not be obligated to, aggregate the securities to be sold
or purchased in order to obtain the best execution or lower brokerage
commissions, if any. In such event, allocation of the securities so sold or
purchased, as well as the expenses incurred in the transaction, will be made by
the Sub-Sub-Adviser in the manner it considers to be the most equitable and
consistent with its fiduciary obligations to the Fund and, if applicable, to
such other customers;
(i) The Trust, the Adviser and the Sub-Adviser acknowledges that in
order to comply with U.S. and Australian securities and banking laws and related
regulatory requirements, there may be periods when the Sub-Sub-Adviser will not
be permitted to initiate or recommend certain types of transactions in the
securities of issuers for which affiliates of the Sub-Sub-Adviser performing
investment banking services, and neither the Trust nor either the Adviser or
Sub-Adviser will be advised of that fact. For example, during certain periods
when affiliates of the Sub-Sub-Adviser are engaged in an underwriting or other
distribution of a company's securities, the Sub-Sub-Adviser may be prohibited
from purchasing or recommending the purchase of certain securities of that
company for its clients. Similarly, the Sub-Sub-Adviser may on occasion be
prohibited from selling or recommending the sale of securities of a company for
which affiliates are providing investment banking services.
(j) The Sub-Sub-Adviser shall provide marketing support to the Adviser
and/or the Sub-Advisor in connection with the sale of Trust shares, as agreed
to, from time to time, by either of the Adviser or Sub-Adviser with the
Sub-Sub-Adviser. Such support shall includes attendance at meetings of the
Trust's Board of Trustees at least annually, presentations by representatives of
the Sub-Sub-Adviser at investment seminars, conferences and other industry
meetings. Any materials utilized by the Adviser or Sub-Adviser which contain any
information relating to the Sub-Sub-Adviser shall be submitted to the
Sub-Sub-Adviser for approval prior to use, not less than ten (10) business days
before such approval is needed by either of them. Any materials utilized by the
Sub-Sub-Adviser which contain any information relating to any of the Adviser,
Sub-Adviser or the Trust shall be submitted to the Adviser (if related to the
Adviser or the Trust) or to the Sub-Adviser (if related to the Sub-Adviser) for
approval prior to use, not less than ten (10) business days before such approval
is needed by the Sub-Sub-Adviser, which approval shall not be unreasonably
withheld.
In the event of termination of this Agreement, the Adviser and
Sub-Adviser will continue to furnish to the Sub-Sub-Adviser copies of any such
materials that refer in any way to the Sub-Sub-Adviser. The Adviser and
Sub-Adviser shall furnish or otherwise make available to the Sub-Sub-Adviser
such other information relating to the business affairs of the Fund as the
Sub-Sub-Adviser at any time, or from time to time, reasonably requests in order
to discharge its obligations hereunder.
(k) The Trust represents that it has delivered true ant correct copies
to the Sub-Sub-Adviser of, and agrees to promptly notify and deliver to the
Sub-Sub-Adviser, all future amendments and supplements to, the Prospectus, the
Trust's Declaration of Trust, the Trust's Bylaws, resolutions or other
instructions of the Trustees, and such other documents or instruments governing
the instruments and investment policies and practices of the Fund which are
relevant to the Sub-Sub-Adviser's performance of its duties under this Agreement
and the Trust's Registration Statement on Form N-1A.
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(1) The Trust, Adviser and Sub-Adviser each represents, warrants and
agrees that:
(i) it has the power and has taken all necessary action,
and has obtained all necessary licenses,
authorizations and approvals (including approval by
the Trust's Board of Trustees, to execute this
Agreement which constitutes its legal, valid and
binding obligation, enforceable in accordance with
its terms;
(ii) the Fund is duly registered with the SEC under the
1940 Act as a diversified management investment
company, and that all required action has been taken
by the Fund under the Securities Act of 1933, as
amended and the l940 Act to make the public offering
and consummate the sale of its shares pursuant to the
Prospectus; and
(iii) the adviser, for the purposes of investing in
securities, controls or managers assets exceeding
$10,000,000 AUD. Such amount may include assets of a
trust managed by the Adviser and assets managed by an
affiliate of the Adviser.
3. The Sub-Sub-Adviser agrees that all records which it maintains for the Fund
pursuant to Section 2(d) of this Sub-Subadvisory Agreement are the property of
the Trust and will promptly surrender any of such records to the Adviser or
Sub-Adviser upon the request of the Trustee, the Adviser or the Sub-Adviser. The
Sub-Sub-Adviser shall preserve for periods prescribed by Rule 31a-2 of the 1940
Act any such records as are required to be maintained by the Sub-Sub-Adviser
with respect to the Fund by Rule 31a-1 of the 1940 Act and to comply in full
with the requirements of Rule 204-2 under the Investment Advisers Act of 1940
pertaining to the maintenance of books and records.
4. For performance of the services hereunder with respect to the Fund, the
Sub-Adviser shall pay the Sub-Sub-Adviser compensation pursuant to the Fee
Schedule contained in Schedule B. The fee prescribed in Schedule B shall be
calculated daily and payable monthly in arrears at an annual rate per Schedule B
of the Fund's average daily net assets as such is calculated pursuant to the
Prospectus. The Sub-Adviser shall provide the Sub-Sub-Adviser with supporting
documentation indicating how the fee is calculated each month.
5. The Sub-Sub-Adviser shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Trust, Fund, Adviser or Sub-Adviser in
connection with the matters to which this Sub-Sub-Advisory Agreement relates,
except for a loss resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement.
The Fund, and/or the Adviser and/or the Sub-Adviser will indemnify and
defend the Sub-Sub-Adviser and hold it harmless against any loss, cost or claims
or any demands or proceedings made by any person, in any way arising from its
appointment hereunder, except as may result from the Sub-Sub-Adviser's willful
misfeasance, bad faith, gross negligence or reckless disregard of its duties and
obligations hereunder. The provisions of this section 5 shall survive
termination of this Agreement.
6. The term of this Agreement shall begin on the date first above written, and
unless sooner terminated as hereinafter provided, this Agreement shall remain in
effect for a period of two years from the date of this Agreement. Thereafter,
this Agreement shall continue in effect with respect to the Fund from year to
year, subject to the termination provisions and all other terms and conditions
hereof; provided such continuance with respect to the Fund is approved at least
annually by vote of the holders
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of a majority of the outstanding voting securities of the Fund (as defined in
the 0000 Xxx) or by the Trustees of the Trust; provided that in either event,
such continuance is also approved annually by the vote, cast in person or a
meeting called for the purpose of voting on such approval, of a majority of the
Trustees of the Trust who are not parties to this Agreement or interested
persons of any party hereto. The Sub-Sub-Adviser shall furnish to the Trust,
promptly upon its request, such information as may reasonably be necessary to
evaluate the terms of this Agreement or any extension, renewal or amendment
thereof. This Agreement may be terminated at any time by any party hereto,
without the payment of any penalty, upon sixty (60) days prior written notice to
the other parties; provided, that in the case of termination by the Trust, such
action shall have been authorized (i) resolution of the Trust's Board of
Trustees, including the vote or written consent of Trustees of the Trust who are
not parties to this Agreement or interested persons of any party hereto, or (ii)
by vote of a majority of the outstanding voting securities of the Fund as
defined in the 1940 Act). This Agreement shall automatically terminate in the
event of it's "assignment" (as defined in the 1940 Act).
7. The Sub-Sub-Adviser shall for all purposes herein be deemed to be an
independent contractor and shall not, unless otherwise expressly provided herein
or authorized by the Trustees of Trust from time to time, have any authority to
act for or represent the Fund or Trust in any way or otherwise be deemed to be
an agent of the Fund or the Trust.
8. In rendering the services required under this Agreement, the Sub-Sub-Adviser
may from time to time employ or associate itself with such person or persons as
it believes necessary to assist it in carrying out its obligations under this
Agreement, provided that the Sub-Sub-Adviser may not retain as a sub-adviser any
company that would be an "investment adviser", as that term is defined in
Section 2(a)(20) of the 1940 Act, to the Fund unless the contract with such
company has been approved by the Fund in the manner required by the 1940 Act.
9. It is understood that the Trust will pay from the assets of the Fund all of
its own expenses allocable to the Fund including, without limitation,
compensation of Trustees; governmental fees; interest charges; taxes; fees and
expenses of independent auditors, legal counsel and of any transfer agent,
administrator, distributor or shareholder servicing agent; costs associated with
printing and mailing of Prospectuses, shareholder reports, notices, proxy
statements and reports to governmental officers and commissions and to
shareholders of the Fund; expenses connected with the execution, recording and
settlement of portfolio security transactions; insurance premiums; fees and
expenses of the custodian for all services to the Fund, including safekeeping of
securities and maintaining required books and accounts; expenses of calculating
the net asset value of shares of the Fund; expenses of shareholder meetings; and
expenses relating to the issuance, registration and qualification of shares of
the Fund. Costs and expenses (other than the Sub-Sub-Adviser's overhead cost)
incurred by the Sub-Sub-Adviser in connection with its performance of its duties
hereunder that are not acceptable to the Fund (such as costs of attending
conferences at the request of the Adviser or Sub-Adviser) shall be reimbursed to
the Sub-Sub-Adviser by the Sub-Adviser.
10. The Sub-Sub-Adviser Agreement may be amended only in accordance with the
1940 Act.
11. Any notice that is required to be given by the parties to each other under
the terms of this Agreement shall be in writing, delivered, or mailed postpaid
to the other party, or transmitted by facsimile with acknowledgment of receipt,
to the parties at the following addresses or facsimile numbers, which may from
time to time be changed by the parties by notice to the other parties:
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(a) If to the Sub-Sub-Adviser:
BT Fund Manager International Ltd.
Level 42
Australia Square Tower
Sydney, New South Wales, Australia 2000
Attn:
(b) If to the Sub-Adviser:
Bankers Trust Company
Global Investment Management
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
(c) If to the Adviser:
Orbitex Management, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
(d) If to the Trust:
Orbitex Group of Funds
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
l2. This Sub-Subadvisory Agreement shall be governed and construed m accordance
with the laws of the State of New York.
13. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Sub-Subadvisory
Agreement to be executed by their respective officers designated below as of the
day and year first above written.
ORBITEX MANAGEMENT, INC. ORBITEX GROUP OF FUNDS
By: ___________________________ By: ____________________________________
Xxxxx X. Xxxxxx, President Xxxxx X. Xxxxxx, President
BANKERS TRUST COMPANY BT FUND MANAGERS INTERNATIONAL LTD.
By: ___________________________ By: ____________________________________
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