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Exhibit 5(b)
ESC STRATEGIC FUNDS, INC.
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT, effective commencing on ________________, 199__, among
Equitable Securities Corporation (the "Adviser"), ESC Strategic Funds, Inc. (the
"Company") and Equitable Asset Management, Inc. ("Portfolio Manager").
WHEREAS, the Company is a Maryland corporation of the series type
organized under Articles of Incorporation dated November 24, 1993, (the
"Articles") and is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end, management series-type investment
company;
WHEREAS, the Adviser has been appointed by the Company, pursuant to an
investment advisory agreement dated , 1996 ("Investment Advisory Agreement"), to
act as investment adviser to the Company with respect to each of its present and
future series ("Funds");
WHEREAS, the Adviser wishes to retain the Portfolio Manager to render
portfolio management services to the Company with respect to ESC Strategic Value
Fund (the "Fund") and the Portfolio Manager is willing to furnish such services
to the Fund;
WHEREAS, the Portfolio Manager is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended ("Advisers Act");
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the Adviser and the Portfolio Manager as
follows:
1. Appointment. Pursuant to authority granted in the Investment
Advisory Agreement and with the approval of the Directors, the Adviser hereby
appoints the Portfolio Manager to act as portfolio manager for the Fund for the
periods and on the terms set forth in this Agreement. The Portfolio Manager
accepts such appointment and agrees to furnish the services herein set forth,
for the compensation herein provided.
2. Portfolio Management Duties. Subject to the overall supervision of
the Directors of the Company and the Adviser, the Portfolio Manager is hereby
granted full responsibility and discretion for (a) the management of the Fund's
assets ("Assets") in accordance with the Fund's investment objectives, policies
and limitations as stated in its prospectus and Statement of Additional
Information included as part of the Company's registration statement filed with
the Securities and Exchange Commission ("SEC"), as they may be amended from time
to time, ("Registration
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Statement") copies of which shall be provided to the Portfolio Manager by the
Adviser; and (b) the placement of orders to purchase and sell securities for the
Fund. At the request of the Directors or the Adviser, the Portfolio Manager
shall report to the Board of Directors of the Company regularly at such times
and in such detail as the Board may from time to time determine to be
appropriate, in order to permit the Board to determine the adherence of the
Portfolio Manager to the investment policies of the Fund.
The Portfolio Manager further agrees that, in performing its duties
hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations thereunder,
the Advisers Act, the Internal Revenue Code (the "Code") and all other
applicable federal and state laws and regulations, and with any applicable
procedures adopted by the Directors;
(b) use reasonable efforts to manage the Assets, and to coordinate its
activities with the Adviser so that the Fund will qualify, and continue to
qualify, as a regulated investment company under Subchapter M of the Code and
regulations issued thereunder;
(c) place orders for the investment of the Assets directly with the
issuer, or with any broker or dealer, in accordance with applicable policies
expressed in the prospectus and/or Statement of Additional Information with
respect to the Fund and in accordance with applicable legal requirements;
(d) furnish to the Company and the Adviser whatever statistical
information the Company or the Adviser may reasonably request with respect to
the Assets or contemplated investments; and keep the Adviser and the Directors
informed of developments materially affecting the Fund's portfolio;
(e) make available to the Company's administrator (the
"Administrator"), the Company or the Adviser, promptly upon their request, such
copies of its investment records and ledgers with respect to the Fund as may be
required to assist the Administrator, the Company and the Adviser in their
compliance with applicable laws and regulations. The Portfolio Manager will
furnish the Directors with such periodic and special reports regarding the Fund
as the Directors may reasonably request;
(f) immediately notify the Company and the Adviser in the event that
the Portfolio Manager or any of its affiliates: (1) becomes aware that it is
subject to a statutory disqualification that prevents the Portfolio Manager from
serving as a portfolio manager pursuant to this Agreement; or (2) becomes aware
that it is the subject of an administrative proceeding or enforcement
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action by the SEC or other regulatory authority. The Portfolio Manager further
agrees to review information in the Company's Registration Statement describing
the Portfolio Manager and to notify the Company and the Adviser if the
information becomes incorrect;
(g) in making investment decisions with respect to the Assets, use no
inside information that may be in its possession or in the possession of any of
its affiliates, nor will the Portfolio Manager seek to obtain any such
information.
3. Banking and Custody Accounts. The Portfolio Manager shall not be
required to provide or arrange for banking accounts for the Fund or to hold
money or assets on the Fund's behalf. The Portfolio Manager shall not be
required to act as the registered holder of any investment or to provide or
procure any custody or settlement services in connection with its services
hereunder. The Fund has entered into one or more agreements with providers of
banking and custody services (Custodians) whom the Fund will authorize to act
upon instructions from properly authorized representatives of the Portfolio
Manager, in connection with its services hereunder, directing the Custodian(s)
to pay, deliver or receive cash and securities in settlement of transactions
authorized by the Portfolio Manager on the Fund's behalf. The Fund's
agreement(s) with such Custodian(s) will require the Custodian(s) to settle all
transactions directed by the Portfolio Manager on the Fund's behalf.
4. Allocation of Charges and Expenses. Except as otherwise specifically
provided in this section 4, the Portfolio Manager shall pay the compensation and
expenses of all its directors, officers and employees who serve as directors,
officers and executive employees of the Company (including the Company's share
of payroll taxes), and the Portfolio Manager shall make available, without
expense to the Fund, the services of its directors, officers and employees who
may be duly elected officers or directors of the Company, subject to their
individual consent to serve and to any limitations imposed by law.
The Portfolio Manager shall not be required to pay any expenses of the
Company or the Fund other than those specifically allocated to the Portfolio
Manager in this section 4. In particular, but without limiting the generality of
the foregoing, the Portfolio Manager shall not be responsible, except to the
extent of the reasonable compensation of such of the Company's employees as are
officers or employees of the Portfolio Manager whose services may be involved,
for the following expenses of the Company or the Fund: organization and certain
offering expenses of the Company and the Fund (including out-of-pocket expenses,
but not including the Portfolio Manager's overhead and employee costs);
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fees payable to or expenses of consultants; legal expenses; auditing and
accounting expenses; interest expenses; telephone, telex, facsimile, postage and
other communications expenses; taxes and governmental fees; fees, dues and
expenses incurred by or with respect to the Company or the Fund in connection
with membership in investment company trade organizations; costs of insurance;
fees and expenses of the Company's Administrator or of any custodian,
subcustodian, transfer agent, registrar, or dividend disbursing agent of the
Company or the Fund; payments for portfolio pricing or valuation services to
pricing agents, accountants, bankers and other specialists, if any; expenses of
preparing and printing share certificates; other expenses in connection with the
issuance, offering, distribution, redemption or sale of securities issued by the
Fund; expenses relating to investor and public relations; expenses of
registering and qualifying shares of the Fund for sale; freight, insurance and
other charges in connection with the shipment of the Fund's portfolio
securities; brokerage commissions or other costs of acquiring or disposing of
any portfolio securities or other assets of the Fund, or of entering into other
transactions or engaging in any investment practices with respect to the Fund;
expenses of printing and distributing prospectuses, Statements of Additional
Information, reports, notices and dividends to stockholders; costs of preparing,
printing and filing documents with regulatory agencies; costs of stationery and
other office supplies; any litigation or other extraordinary expenses; costs of
stockholders' and other meetings; the compensation and all expenses
(specifically including travel expenses relating to the business of the Company
or the Fund) of officers, directors and employees of the Company who are not
interested persons of the Portfolio Manager; and travel expenses (or an
appropriate portion thereof) of officers or directors of the Company who are
officers, directors or employees of the Portfolio Manager to the extent that
such expenses relate to attendance at meetings of the Board of Directors of the
Company, or any committees thereof or advisory group thereto or other business
of the Company or the Funds.
5. Compensation. As compensation for the services provided and
expenses assumed by the Portfolio Manager under this Agreement, the Adviser, out
of its fees from the Fund pursuant to the Investment Advisory Agreement, will
pay the Portfolio Manager at the end of each calendar month an investment
management fee computed daily at an annual rate equal to 0.65% on the first $50
million of the Fund's average daily net assets, 0.60% on the next $50 million
of such assts, 0.55% on the next $100 million of such assets, and 0.50% on such
assets in excess of $200 million. The "average daily net value of the Assets"
shall mean the average of the values placed on the net Assets as of 4:15 p.m.
(Eastern time) on each day on which the net asset value of the Fund is
determined consistent with the provisions of Rule 22c-1 under the 1940 Act or,
if the Fund lawfully determines the value of its net assets as of some other
time on each business day, as of such other time. The value of the net Assets,
and of the net assets of the Fund, shall always be
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determined pursuant to the applicable provisions of the Articles and the
Registration Statement. If, pursuant to such provisions, the determination of
net asset value for a Fund is suspended for any particular business day, then
for the purposes of this section 5, the value of the net Assets as last
determined shall be deemed to be the value of the net Assets as of the close of
the New York Stock Exchange, or as of such other time as the value of the net
assets of the Fund's portfolio may lawfully be determined, on that day. If the
determination of the net asset value of the shares of the Fund has been so
suspended for a period including any month end when the Portfolio Manager's
compensation is payable pursuant to this section, then the Portfolio Manager's
compensation payable at the end of such month shall be computed on the basis of
the value of the net Assets as last determined (whether during or prior to such
month). If the Fund determines the value of the net assets of its portfolio more
than once on any day, then the last such determination thereof with respect to
the net Assets on that day shall be deemed to be the sole determination thereof
on that day with respect to the net Assets for the purposes of this section 5.
6. Books and Records. The Portfolio Manager agrees to maintain such
books and records with respect to its services to the Fund as are required by
Section 31 under the 1940 Act, and rules adopted thereunder, and by other
applicable legal provisions, and to preserve such records for the periods and in
the manner required by that Section, and those rules and legal provisions. The
Portfolio Manager also agrees that records it maintains and preserves pursuant
to Rules 31a-1 and 31a-2 under the 1940 Act and otherwise in connection with its
services hereunder are the property of the Company and will be surrendered
promptly to the Company upon its request. And the Portfolio Manager further
agrees that it will furnish to regulatory authorities having the requisite
authority any information or reports in connection with its services hereunder
which may be requested in order to determine whether the operations of the
Company and the Fund are being conducted in accordance with applicable laws and
regulations.
7. Standard of Care and Limitation of Liability. The Portfolio Manager
shall exercise its best judgment in rendering the services provided by it under
this Agreement. The Portfolio Manager shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Company or the Fund
or the holders of the Fund's shares in connection with the matters to which this
Agreement relates, provided that nothing in this Agreement shall be deemed to
protect or purport to protect the Portfolio Manager against any liability to the
Company, the Fund or to holders of the Fund's shares to which the Portfolio
Manager would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence on its part in the performance of its duties or by reason of
the Portfolio Manager's reckless disregard
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of its obligations and duties under this Agreement. As used in this Section 7,
the term "Portfolio Manager" shall include any officers, directors, employees or
other affiliates of the Portfolio Manager performing services with respect to
the Company or the Fund.
8. Services Not Exclusive. It is understood that the services of the
Portfolio Manager are not exclusive, and that nothing in this Agreement shall
prevent the Portfolio Manager from providing similar services to other
investment companies or to other series of investment companies (whether or not
their investment objectives and policies are similar to those of the Fund or
another fund of the Company) or from engaging in other activities, provided such
other services and activities do not, during the term of this Agreement,
interfere in a material manner with the Portfolio Manager's ability to meet its
obligations to the Company, the Adviser and the Fund hereunder. When the
Portfolio Manager recommends the purchase or sale of a security for other
Portfolios of the Company, other investment companies or other clients, and at
the same time the Portfolio Manager recommends the purchase or sale of the same
security for the Fund, it is understood that in light of its fiduciary duty to
the Fund, such transactions will be executed on a basis that is fair and
equitable to the Fund. In connection with purchases or sales of portfolio
securities for the account of the Fund, neither the Portfolio Manager nor any of
its directors, officers or employees shall act as a principal or agent or
receive any commission. If the Portfolio Manager provides any advice to its
clients concerning the shares of the Fund or other funds of the Company, the
Portfolio Manager shall act solely as investment counsel for such clients and
not in any way on behalf of the Company, the Fund or another fund of the
Company.
9. Duration and Termination. This Agreement shall continue until
__________________, 199___, and thereafter shall continue automatically for
successive annual periods, provided such continuance is specifically approved at
least annually by (i) the Directors or (ii) by vote of a "majority" (as defined
in the 0000 Xxx) of the Fund's outstanding voting securities (as defined in the
1940 Act), provided that in either event the continuance is also approved by a
majority of the Directors who are not parties to this Agreement or "interested
persons" (as defined in the 0000 Xxx) of any party to this Agreement, by vote
cast in person at a meeting called for the purpose of voting on such approval.
Notwithstanding the foregoing, this Agreement may be terminated: (a) at any time
without penalty (i) by the Adviser, (ii) by the Company upon the vote of a
majority of the Directors or (iii) by vote of the majority of the Fund's
outstanding voting securities, each upon sixty
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(60) days' written notice to the Portfolio Manager; or (b) by the Portfolio
Manager at any time without penalty, upon sixty (60) days' written notice to the
Company or the Adviser. This Agreement will also terminate automatically in the
event of its assignment (as defined in the 1940 Act).
10. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought, and no amendment of this Agreement shall be effective
until approved by an affirmative vote of (i) a majority of the outstanding
voting securities of the Fund, and (ii) a majority of the Directors, including a
majority of Directors who are not interested persons of any party to this
Agreement, cast in person at a meeting called for the purpose of voting on such
approval, if such approval is required by applicable law.
11. Proxies and Rights. Unless the Company or the Adviser gives written
instructions to the contrary, the Portfolio Manager shall (a) vote all proxies
solicited by or with respect to the issuers of securities in which the Assets
are invested, using its best good faith judgment to vote such proxies in a
manner which best serves the interests of the Fund's shareholders, and (b)
exercise all other rights attaching to or arising with respect to the Assets,
subject to the Fund's investment objectives, policies and limitations as stated
in its Registration Statement, directing the Custodian to make any required
payment or settlement in connection therewith.
12. Miscellaneous.
a. This Agreement shall be governed by the laws of the State of
Tennessee, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act, or rules or orders of the SEC
thereunder.
b. 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.
c. 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 hereby and, to this extent, the provisions of this
Agreement shall be deemed to be severable.
d. Nothing herein shall be construed as constituting the Portfolio
Manager as an agent of the Company or the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of ______________, 199___.
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EQUITABLE SECURITIES CORPORATION
By ______________________________
President
EQUITABLE ASSET MANAGEMENT, INC.
By ______________________________
Title: _______________________
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