FORM OF
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement"), dated as of ____________
2004, is made between ASA (BERMUDA) LIMITED, a Bermuda corporation ("ASA"), and
LGN ASSOCIATES ("LGN").
WHEREAS, ASA, a registered investment company under the Investment
Company Act of 1940 with its office in Buffalo, New York, is required by the
Securities and Exchange Commission (the "SEC"), among other matters, to maintain
certain records in the United States and to provide certain services to its
shareholders living in the United States; and
WHEREAS, ASA desires that LGN provide the services hereinafter set
forth on ASA's behalf and is willing, upon the terms and conditions set forth in
this Agreement, to make such appointment; and
WHEREAS, LGN desires to perform those services for ASA in the United
States;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, ASA and LGN hereby agree as follows:
Section 1. DELEGATION TO LGN; ACCEPTANCE OF APPOINTMENT. ASA hereby
delegates to LGN the responsibility for furnishing the services described in
Section 2 hereof (the "Services"), for the period and on the terms and
conditions set forth in this Agreement. LGN hereby agrees during such period, at
its own expense, to render, or arrange for the rendering of, the Services, and
to assume the obligations herein set forth for the compensation provided for
herein. LGN may assign to any firm that he controls the responsibility to
perform any or all of the Services, but such assignment shall not relieve its
responsibility to perform under this Agreement.
Section 2. SERVICES. LGN shall perform (or arrange for the performance
of) the clerical services which the SEC requires ASA, or XXX xxxxx appropriate,
to perform in the United States and services for ASA's shareholders that ASA
shall from time to time request.
LGN shall report to ASA at the quarterly Board of Directors' meetings
concerning its performance of obligations hereunder and shall furnish
recommendations with respect to such other clerical aspects of the business and
affairs of ASA as LGN shall determine to be desirable. LGN shall also confer
with the officers of ASA as they request, at such time and in the manner
requested by ASA.
LGN will, if requested by ASA, perform the following services: oversee
all shareholder relations and communications in the United States, including
shareholder reports and statements and annual reports; respond to requests for
information from shareholders, regulatory authorities, ASA, its Board of
Directors and service providers of ASA; co-ordinate with the various service
providers and agents of ASA in the United States, including ASA's custodian,
transfer agent, counsel, fund accountant, independent accountant and others;
assist in the preparation for meetings of ASA's Board of Directors, and any
committee meetings of the Board, including travel arrangements, arrangements of
functions and activities; maintain duplicate books of records of ASA for so long
as ASA requests that this function be performed in the United States; arrange
for or oversee payment of dividends and payroll taxes in the United States;
disseminate NAV information to shareholders and others; ensure compliance with
all regulatory requirements, including arranging for all required regulatory
filings; and oversee the accounting functions of ASA in the United States.
Services to be rendered by LGN pursuant to this Agreement shall also
include its assistance as is necessary or as has been requested by ASA to effect
an orderly transition in the event that ASA determines to terminate this
Agreement and select another person or persons to render the services
contemplated by this Agreement. Such assistance would include, without
limitation, transferring the books and records of ASA and contacting other
service providers and agents of ASA to effect the orderly transition of ASA's
business.
Section 3. COMPENSATION OF LGN. Subject to the termination of this
Agreement, as describer in Sections 9 and 10 below, ASA shall pay to LGN an
annual fee of $_______ (the "Services Fee"), payable monthly in advance for
furnishing the Services. During the term of this Agreement, the Services Fee
shall be as follows:
(a) The first year's Service Fee of $_________ shall be paid in twelve
(12) installments on the first day of each month beginning
___________ 2004, with the first installment being $_________ and
each of the next eleven (11) installments being $________.
(b) The Services Fee for each subsequent year of this Agreement shall
also be paid in (12) installments on the first day of each month.
The installment to be paid on _______________ of each year shall be
$_________; each of the remaining eleven (11) installments shall be
$_________.
Section 4. ALLOCATION OF CHARGES AND EXPENSES.
(a) SERVICES EXPENSES. LGN assumes responsibility for and shall bear
the expenses involved in providing the Services.
(b) OTHER EXPENSES. All other expenses of ASA, including, without
limitation, the following, shall be paid by ASA: (i) taxes, if any,
of ASA; (ii) fees and expenses of outside auditors and counsel for
ASA; (iii) fees and expenses of consultants or other professionals
rendering services to ASA; (iv) custodian fees; (v) registrar and
transfer agent fees; and (vi) any extraordinary expenses.
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Section 5. LIMITATION OF AUTHORITY OF LGN. LGN shall for all purposes
herein be deemed to be an independent contractor and, unless otherwise expressly
provided for or authorized, shall have no authority to act for or represent ASA
in any way or otherwise be deemed an Agent of ASA.
Section 6. LIMITATION OF LIABILITY OF LGN. Neither LGN nor any of its
employees or agents shall be liable to ASA for any loss or damage incurred by
reason of any act or omission based upon errors of judgment, or other fault, or
for any loss arising out of any act or omission pursuant to this Agreement, or
for the negligence, dishonesty, or bad faith of any employee or agent of LGN
selected by LGN with reasonable care so long as the person against whom
liability is asserted acted in good faith and in a manner reasonably believed by
such person to be within the scope of its authority and in the best interests of
ASA.
Section 7. INDEMNIFICATION. ASA shall indemnify LGN and its employees
and agents (collectively referred to for purposes of this Section 7 as the
"Indemnitee") against all expenses (including attorneys' fees, judgments and
amounts paid in settlement) actually and reasonably incurred by the Indemnitee
in connection with any threatened, pending or completed action, suit or
proceeding against the Indemnitee or by, against or in the right of ASA to which
ASA was or is a party, or is threatened to be made a party, involving an alleged
cause of action for damages arising out of, or in any way related to or
connected with, the business or internal affairs of ASA, if, in the transaction
giving rise to such action, suit or proceeding, the Indemnitee acted in good
faith, without gross negligence and in a manner reasonably believed to be in the
best interests of ASA. ASA may pay the expenses incurred by the Indemnitee in
defending a civil or criminal action in advance of the final disposition of such
action, provided the Indemnitee undertakes to repay such expenses if the
Indemnitee is adjudicated not to be entitled to indemnification.
Section 8. ACTIVITIES OF LGN. The furnishing of Services to ASA shall
not be deemed to be the exclusive engagement of LGN, and LGN shall be free to
render services to others.
Section 9. TERM OF AGREEMENT; TERMINATION. This Agreement shall become
effective as of the date first written above for a term of three years, and
thereafter shall be annually renewed without notice by either party. This
agreement may be terminated at any time by ASA, or by LGN, on ninety (90) day's
prior written notice to the other party, except that ASA may not terminate this
Agreement without cause during the first yea of its effectiveness. This
Agreement will also terminate automatically upon the death, permanent insanity
or incapacity, retirement, resignation or final adjudication as a bankrupt, of
LGN.
If, during the second or third year of this Agreement, ASA terminates
this Agreement without cause, ASA shall pay an early termination fee (a
"Termination Fee"), which shall be payable immediately in a lump sum. The
Termination Fee shall be calculated as being $41,667 times the number of whole
months remaining in the original three years of this Agreement. No Termination
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Fee will be payable in the event that LGN terminates this Agreement, ASA
terminates this Agreement for cause or this Agreement is terminated
automatically. For purposes of this Agreement, "for cause" shall mean actions,
errors or omissions that amount to bad faith recklessness or gross negligence by
LGN or its employees or agents in connection with the rendering of services by
LGN or others pursuant to this Agreement.
Section 10. ORDERLY TRANSITION. In the event that this Agreement is
terminated and ASA enters into an agreement with another person or persons to
render the services contemplated by this Agreement but, despite LGN's best
efforts, transition of such business to such person or persons has not been
completed by the termination of this Agreement, LGN agrees that it shall at that
time negotiate with ASA in good faith to render assistance in order to ensure
the continuation of administrative and other services to the Fund.
Section 11. NOTICES. All notices required under the terms and
provisions hereof shall be effective, if sent by airmail (in the case of
internationals delivery) or first class U.S. mail (in the case of domestic
delivery), five business days after being deposited in the mails certified with
appropriate postage prepaid or, if delivered by hand or sent by telegram, cable,
telecopier or telex, when received, or when the sending party has received
confirmation of such delivery; and, all notices shall addressed:
IF TO ASA: 00 Xxxxxx Xxxxxx, 0xx xxxxx
Xxxxxxx, Xxx Xxxx 00000
IF TO LGN:
By hand: 000 Xxxxxxxx Xxxxxxxx, 0xx xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
By mail: X.X. Xxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Telecopier/Fax: (000) 000-0000
or at such other adders as any party may from time to time designate in writing
to the other party.
Section 12. AMENDMENT OF THIS AGREEMENT. This Agreement may be amended
only by an instrument duly signed by the parties hereto.
Section 13. COUNTERPARTS. This Agreement may be executed by the parties
hereto an separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall constitute but one and the
same instrument.
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Section 14. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
ASA LIMITED
By: ____________________________
Name: Xxxxxx X.X. Xxxxx
Title: Chairman of the Board
LGN ASSOCIATES
By: _____________________________
Name: Xxxxxxxx X. Xxxxxxxxxx
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