EX-99.B5
ASM INDEX 30 FUND, INC.
MANAGEMENT AGREEMENT
AGREEMENT made this 28th day of February, 1999 by and between ASM Index 30
Fund, Inc. (the "Fund'), a Maryland corporation, and ORBITEX Management, Inc.
(the "Manager"), a New York corporation.
WITNESSETH:
In consideration of the mutual promises and agreements herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, it is hereby agreed by and between the parties hereto as follows:
1. In General.
The Fund hereby appoints the Manager to act as investment adviser. The
Manager agrees, all as more fully set forth herein, to provide professional
investment management with respect to the investment of the assets of the Fund
and to supervise and arrange the purchase and sale of securities held in the
portfolio of the Fund and generally administer the affairs of the Fund.
2. Duties and Obligations of the Manager with respect to Management of the
Fund.
(a) Subject to the succeeding provisions of this section and subject
to the direction and control of the Board of Directors of the Fund,
the Manager shall:
(i) Decide what securities shall be purchased or sold by the
Fund and when; and
(ii) Arrange for the purchase and sale of securities for the
portfolio of the Fund by placing purchase and sale orders for
theFund.
(b) Any investment purchases or sales made by the Manager shall at
all times conform to, and be in accordance with, any requirements
imposed by:
(1) the provisions of the Investment Company Act of 1940, as
amended (the "Act"), and of any rules or regulations in
force thereunder;
(2) any other applicable provisions of law;
(3) the provisions of the Articles of Incorporation and By-Laws of
the Fund as amended from time to time;
(4) any policies and determinations of the Board of Directors of
the Fund of which the Manager has been notified; and
(5) the fundamental policies of the Fund, as reflected in its
registration statement under the Act, or as amended by
the shareholders of the Fund.
(c) The Manager shall also administer the affairs of the Fund and, in
connection therewith, shall be responsible for (i) maintaining the
Fund's books and records, (other than financial or accounting books
and records maintained by the Fund's custodian or transfer agent);
(ii) overseeing the Fund's insurance relationships; (iii) preparing
for the Fund (or assisting counsel and/or auditors in the preparation
of) all required tax returns, proxy statements and reports to the
Fund's shareholders and Directors and reports to and other filings
with the Securities and Exchange Commission and any other
governmental agency (the Fund agreeing to supply or cause to be
supplied to the Manager all necessary financial and other information
in connection with the foregoing); (iv) preparing such applications
and reports as may be necessary to register or maintain the Fund's
registration and/or the registration of the shares of the Fund under
the securities or "blue sky" laws of the various states selected by
the Fund's Distributor (the Fund agreeing to pay all filing fees or
other similar fees in connection therewith); (v) responding to all
inquiries or other communications of shareholders, if any, which are
directed to the Manager, or if any such inquiry or communication is
more properly to be responded to by the Fund's custodian, transfer
agent or accounting services agent, overseeing their response
thereto; (vi) overseeing all relationships between the Fund and its
custodian(s), transfer agent(s) and accounting services agent(s),
including the negotiation of agreements and the supervision of the
performance of such agreements; and (vii) authorizing and directing
any of the Manager's directors, officers and employees who may be
elected as Directors or officers of the Fund to serve in the
capacities in which they are elected. All services to be furnished by
the Manager under this Agreement may be furnished through the medium
of any such directors, officers or employees of the Manager.
(d) The Manager shall give the Fund the benefit of its best judgment
and effort in rendering services hereunder. In the absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of
obligations or duties ("disabling conduct") hereunder on the part of
the Manager (and its officers, directors, agents, employees,
controlling persons, shareholders and any other persons or entity
affiliated with the Manager) the Manager shall not be subject to
liability to the Fund or to any shareholder of the Fund for any act
or omission in the course of, or connected with rendering services
hereunder, including without limitation, any error of judgment or
mistake of law or for any loss suffered by any of them in connection
with the matters to which this Agreement relates, except to the
extent specified in Section 36(b) of the Act concerning loss
resulting from a breach of fiduciary duty with respect to the receipt
of compensation for services. Except in the case of disabling conduct
by the Manager, the Fund shall indemnify the Manager (and its
officers, directors, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the
Manager) from any liability arising from the Manager's conduct under
this Agreement except as prohibited by the Articles of Incorporation
and applicable law.
(e) Nothing in this Agreement shall prevent the Manager or any
affiliated person (as defined in the Act) of the Manager from acting
as investment adviser or manager and/or principal underwriter for any
other person, firm or corporation and shall not in any way limit or
restrict the Manager or any such affiliated person from buying,
selling or trading any securities for its or their own accounts or
the accounts of others for whom it or they my be acting.
(f) It is agreed that the Manager shall have no responsibility or
liability for the accuracy or completeness of the Fund's Registration
Statement under the Act or the Securities Act of 1933, as amended,
except for information supplied by the Manager in writing for
inclusion therein.
3. Broker-Dealer Relationships.
In connection with its duties set forth in Section 2(a) (ii) of this
Agreement to arrange for the purchase and the sale of securities held by the
Fund by placing purchase and sale orders for the Fund, the Manager shall select
such broker-dealers (each, a "broker") as shall, in the Manager's judgment,
implement the policy of the Fund to achieve "best execution", i.e., prompt and
efficient execution at the most favorable securities price. In making such
selection, the Manager is authorized to consider the reliability, integrity and
financial condition of the broker. The Manager is also authorized to consider
whether the broker provides brokerage and/or research services to the Fund
and/or other accounts of the Manager. The commissions paid to such brokers, may
be higher than another broker would have charged if a good faith determination
is made by the Manager that the commission is reasonable in relation to the
services provided, viewed in terms of either that particular transaction or the
Manager's overall responsibilities as to the accounts as to which it exercises
investment discretion.
The Manager shall use its judgment in determining that the amount of
commissions paid are reasonable in relation to the value of brokerage and
research services provided and need not place or attempt to place a specific
dollar value on such services or on the portion of commission rates reflecting
such services or on the portion of commission rates reflecting such services. To
demonstrate that such determinations were in good faith, and to show the overall
reasonableness of commissions paid, the Manager shall be prepared to show that
commissions paid (i) were for purposes contemplated by this Agreement; (ii)
provide lawful and appropriate assistance to the Manager in the performance of
its decision-making responsibilities; and (iii) were within a reasonable range
as compared to the rates charged by qualified brokers to other institutional
investors as such rates may become known from available information. The Fund
recognizes that, on any particular transaction, a higher than usual commission
may be paid due to the difficulty of the transaction in question. The Manager
also is authorized to consider sales of shares as a factor in the selection of
brokers to execute brokerage and principal transaction, subject to the
requirements of "best execution," as defined above.
4. Allocation of Expenses.
The Manager agrees that it will furnish the Fund, at the Manager's
expense, with all office space and facilities, and equipment and clerical
personnel necessary for carrying out its duties under this Agreement. The
Manager will also pay all compensation of all Directors, officers and employees
of the Fund who are affiliated persons of the Manager. All costs and expenses
not expressly assumed by the Manager under this agreement shall be paid by the
Fund, including, but not limited to (i) interest and taxes; (ii) brokerage
commissions; (iii) insurance premiums; (iv) compensation and expenses of its
Directors other than those affiliated with the Manager; (v) legal and audit
expenses; (vi) fees and expenses of the Fund's custodian, shareholder servicing
or transfer agent and accounting services agent; (vii) expenses incident to the
issuance of its shares, including stock certificates and issuance of shares on
the payment of, or reinvestment of, dividends; (viii) fees and expenses incident
to the registration or qualification under Federal or state securities laws of
the Fund or its shares; (ix) expenses of preparing, printing and mailing
reports, notices, proxy material and prospectuses to shareholders of the Fund;
(x) all other expenses incidental to holding meeting of the Fund's shareholders;
(xi) dues or assessments of or contributions to the Investment Company Institute
or any successor or other industry association; (xii) such non-recurring
expenses as may arise, including litigation affecting the Fund and the legal
obligations which the Fund may have to indemnify its officers and Directors with
respect thereto; and (xiii) all expenses which the Fund agrees to bear in any
distribution agreement or in any plan adopted by the Fund pursuant to Rule 12b-1
under the Act.
Organizational expenses will be borne by the Fund. It is agreed that these
expenses are to be deferred and amortized over a five-year period from the
commencement of operations utilizing the straight-line method of amortization.
5. Compensation of the Manager.
(a) The Fund agrees to pay the Manager and the Manager agrees to
accept as full compensation for all services rendered by the Manager
as such, an annual management fee, payable monthly and computed on
the value of the net assets of the Fund as of the close of business
each business day at the annual rate of 0.08 of 1% of such net assets
of the Fund.
6. Duration and Termination.
(a) This Agreement shall go into effect on the date set forth above
and shall, unless terminated as hereinafter provided, continue in
effect until the earlier of (i) July 1, 1999; (ii) the date on which
the shareholders of the Fund have voted in a special shareholders'
meeting to approve the adoption of this Agreement in accordance with
the Act and the rules thereunder and the reorganization of the Fund
with a Delaware business trust advised by the Manager has been
consummated (the "Reorganization"); or (iii) the date on which the
shareholders of the Fund have voted in a special shareholders'
meeting to disapprove the adoption of this Agreement or the
Reorganization.
(b) This Agreement may be terminated by the Manager at any time
without penalty upon giving the Fund sixty (60) days' written notice
(which notice may be waived by the Fund) and may be terminated by the
Fund at any time without penalty upon giving the Manager sixty (60)
days' written notice (which notice may be waived by the Manager),
provided that such termination by the Fund shall be directed or
approved by the vote of a majority of all of its Directors in office
at the time or by the vote of the holders of a majority (as defined
in the Act) of the voting securities of the Fund. This Agreement
shall automatically terminate in the event of its assignment (as
defined in the Act).
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by duly authorized persons and their seals to be
hereunto affixed, all as of the day and year first above written.
ASM INDEX 30 FUND, INC
By: /S/ S. CASH XXXXX
Name: S. Cash Xxxxx
Title: Acting Chief Executive Officer
ATTEST:
/S/ W. XXXXX XXXXXXX
Name: W. Xxxxx Xxxxxxx
Title: Director
ORBITEX Management, Inc.
By: /S/ XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
ATTEST:
/S/ M. FYZUL KHAN
Name: M. Fyzul Khan, Esq.
Title: Vice President
