Exhibit 5(d)
Form of Sub-Advisory Agreement among Orbitex Group of Funds, Orbitex
Management, Inc. and Bankers Trust Company
SUBADVISORY AGREEMENT
This Subadvisory Agreement is made and entered into on this day of 1997,by
Bankers Trust Australia Limited a [ ] (the "Sub-Adviser"), Orbitex Management,
Inc., a New York corporation (the "Adviser"), and Orbitex Group of Funds, a
Delaware business trust (the "Trust").
WlTNESSETH:
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 series of the Trust to one or more sub-advisers; and
WHEREAS, the Adviser desires to so delegate responsibility for
management of the investments of one or more series of the Trust to the
Sub-Adviser, and the Sub-Adviser agrees to manage the investment of one or more
series of the Trust in accordance with this 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 Adviser hereby appoints the Sub-Adviser to act as the investment adviser
to the Adviser with respect to one or more Series of the Trust (singly or
collectively the "Fund") as identified in Schedule A, which is attached hereto
and by this reference is incorporated herein. The 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 Adviser represents to the Sub-Adviser that
it is authorized pursuant to the Advisory Agreement to delegate to the
Sub-Adviser all of the services to be performed by the Sub-Adviser pursuant
hereto.
2. Subject to the supervision of the Trustees of the Trust and the Adviser, the
Sub-Adviser will manage the securities and investments (including cash) of the
Fund, including the purchase, retention, disposition and lending thereof, and
the execution of agreements relating thereto in accordance with the Fund's
investment objective(s), policies and restrictions as those are stated in the
Prospectus and further subject to the following understandings:
(a) The Sub-Adviser shall furnish a continuous investment program for
the Fund and in so doing shall determine from time to time what investments or
securities will be purchased, retained, sold or lent by the Fund, and what
portion of the assets will be invested or held uninvested as cash;
(b) The Sub-Adviser in the performance of its duties and obligations
under this Subadvisory Agreement shall act in conformity with 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 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-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 any broker and/or
dealer in such securities. The 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-Adviser shall maintain, or arrange for others to maintain,
all books and records with respect to the securities transactions of the Fund
and shall render to the Adviser or Adviser's designees, such periodic and
special reports as the Adviser may reasonably request;
(e) The Sub-Adviser shall, to the extent the information is within its
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);
(f) The investment advisory services of the Sub-Adviser to the Fund
under this Subadvisory Agreement are not to be deemed exclusive, and the
Sub-Adviser shall be free to render similar service to others;
(g) The Sub-Adviser is authorized, subject to the supervision of the
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-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-Adviser may, on behalf of
the Fund, pay brokerage commissions to a broker which provides brokerage and
research services to the Sub-Adviser in excess of the amount another broker
would have charged for effecting the transaction, provided the 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-Adviser's overall
responsibilities with respect to the Fund and the accounts as to which the
Sub-Adviser exercises investment discretion. It is recognized that the services
provided by such brokers may be useful to the Sub-Adviser in connection with the
Sub-Adviser's service to other clients. On occasions when the Sub-Adviser deems
the purchase or sale of a security to be in the best interests of the Fund as
well as other customers, the Sub-Adviser may, to the extent permitted by
applicable laws and regulations, but shall not be obligated to, aggregate the
securities to be so 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-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. The Trust and the Adviser acknowledge that in order to
comply with Federal securities laws and related regulatory requirements, there
may be periods when the 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-Adviser are performing investment banking services, and
neither the Trust nor the Adviser will be advised of that fact. For example,
during certain periods when affiliates of the Sub-Adviser are engaged in an
underwriting or other distribution of a company's securities, the Sub-Adviser
may be prohibited from purchasing or recommending the purchase of certain
securities of that company for its clients. Similarly, the 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.
(h) The Sub-Adviser shall provide marketing support to the Adviser in
connection with the sale of Trust shares, as reasonably requested by the
Adviser. Such support shall include, but not
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necessarily be limited to, presentations by representatives of the Sub-Adviser
at investment seminars, conferences and other industry meetings. Any materials
utilized by the Adviser which contain any information relating to the
Sub-Adviser shall be submitted to the Sub-Adviser for approval prior to use, not
less than five (5) business days before such approval is needed by the Adviser.
Any materials utilized by the Sub-Adviser which contain any information relating
to the Adviser or the Trust shall be submitted to the Adviser for approval prior
to use, not less than five (5) business days before such approval is needed by
the Sub-Adviser, which approval shall not be unreasonably withheld.
(i) The Trust represents that is has delivered true and correct copies
to the Sub-Adviser of, and agrees to promptly notify and deliver to the
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 relevant to the Sub-Adviser's performance of its
duties under this Agreement, the Advisory Agreement and the Trust's Registration
Statement on Form N1-A.
3. The Sub-Adviser agrees that all records which it maintains for the Fund
pursuant to Section 2(d) of this Subadvisory Agreement are the property of the
Trust and will promptly surrender any of such records to the Adviser upon the
Trustees' or the Adviser's request. The 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-Adviser with respect to the Fund by Rule 31a-1 of the 1940
Act.
4. For performance of the services hereunder with respect to the Fund, the
Adviser shall pay the Sub-Adviser pursuant to the Fee Schedule set forth 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.
5. The Sub-Adviser shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Trust, Fund or the Adviser in connection
with the matters to which this Subadvisory 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 Subadvisory Agreement.
6. The term of this Subadvisory Agreement shall begin on the date first above
written, and unless sooner terminated as hereinafter provided, this Subadvisory
Agreement shall remain in effect for a period of two years from the date of this
Subadvisory Agreement. Thereafter, this Subadvisory 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 of
a majority of the outstanding voting securities of the Fund or by the Trustees
of the Trust; provided, that in either event such continuance is also approved
annually by the vote, cast in person at 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 Subadvisory Agreement or interested persons of any party hereto.
The Sub-Adviser shall furnish to the Trust, promptly upon its request, such
information as may reasonably be necessary to evaluate the terms of this
Subadvisory Agreement or any extension, renewal or amendment thereof. This
Subadvisory 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) by 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 Subadvisory Agreement or interested persons of any party
hereto, or (ii) by vote of a majority of the outstanding voting securities of
the Fund. This Agreement shall automatically terminate in the event of its
"assignment" (as defined in the 1940 Act).
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7. The 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. Any amendment to this SubAdvisory Agreement shall be in writing signed by the
parties hereto; provided, that no such amendment shall be effective unless
authorized (i) by resolution of the Trustees of the Trust, including the vote or
written consent of a majority of the Trustees of the Trust who are not parties
to this Agreement or interested persons of either party hereto, and (ii) by vote
of a majority of the outstanding voting securities of the Fund affected by such
amendment. This Agreement shall terminate automatically and immediately in the
event of its assignment.
9. Any notice that is required to be given by the parties to each other under
the terms of this Subadvisory 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 party:
(a) If to the Sub-Adviser:
(b) If to the Adviser:
Orbitex Management, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile:
(c) If to the Trust:
Orbitex Group of Funds
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile:
10. This Subadvisory Agreement shall be governed and construed in accordance
with the laws of the State of New York.
11. The Sub-Adviser is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Trust's Declaration of Trust and
agrees that the obligations assumed by the Trust or the Fund, as the case may
be, pursuant to this Subadvisory Agreement shall be limited in all cases to the
Trust or the Fund, as the case may be, and its assets, and the Sub-Adviser shall
not seek satisfaction of any such obligation from the shareholders or any
shareholder of the Trust. In addition, the Sub-Adviser shall not seek
satisfaction of any such obligations from the Trustees or any individual
Trustee. The Sub-Adviser
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understands that the rights and obligations of any Fund under the Declaration of
Trust are separate and distinct from those of any and all other Funds. The
Sub-Adviser further understands and agrees that no Fund of the Trust shall be
liable for any claims against any other Fund of the Trust and that the
Sub-Adviser must look solely to the assets of the pertinent Fund of the Trust
for the enforcement or satisfaction of any claims against the Trust with respect
to that Fund.
12. Any question of interpretation of any term or provision of this SubAdvisory
Agreement having a counterpart in or otherwise derived from a term or provision
of the Act shall be resolved by reference to such term or provision of the Act
and to interpretation thereof, if any, by the United States courts, or, in the
absence of any controlling decision of any such court, by rules, regulations or
orders of the Securities and Exchange Commission validly issued pursuant to the
Act. Specifically, the terms "vote of a majority of the outstanding voting
securities," "interested persons," "assignment" and "affiliated person," as used
in this Agreement shall have the meanings assigned to them by Section 2(a) of
the Act. In addition, when the effect of a requirement of the Act reflected in
any provision of this Agreement is modified, interpreted or relaxed by a rule,
regulation or order of the Securities and Exchange Commission, whether of
special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
13. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
IN WlTNESS WHEREOF, the parties hereto have caused this 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 AUSTRALIA LIMITED
By: _______________________________________________
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SUBADVISORY AGREEMENT
ORBITEX GROUP OF FUNDS
Schedule A
Funds Subject to SubAdvisory Agreement
Orbitex Asian Select Advisers Fund
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SUBADVISORY AGREEMENT
ORBITEX GROUP OF FUNDS
Schedule B
Fee Schedule
For the performance of the services under the Agreement, on a monthly basis the
Adviser shall pay the Sub-Adviser a fee based on the Fund's average daily net
assets at the annualized rate .70%.
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