Exhibit 9(a)
XXXXXXXX GROWTH FUND, INC.
ADMINISTRATION AGREEMENT
AGREEMENT made this 1st day of March, 1990, by and between, XXXXXXXX GROWTH
FUND, INC. a Maryland corporation (the "Fund") and FUND/PLAN SERVICES, INC., a
Delaware corporation (the "Administrator").
W I T N E S S E T H:
Whereas, the Fund is a registered open-end, investment company under the
Investment Company Act of 1940, as amended (the "Act"); and
Whereas, the Fund and the Administrator desire to enter into an agreement to
provide administration services for the Fund on the terms and conditions
hereinafter set forth;
NOW THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally hound, do
hereby agree as follows:
1. Appointment
The Fund hereby appoints the Administrator as administrator of the Fund for
the period and on the terms set forth in this Agreement. The Administrator
accepts such appointment and agrees to render the services herein set forth, for
the compensation herein provided.
2. Duties and Obligations of the Administrator
(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 Administrator
shall provide certain administrative services to the Fund other than those
relating to the investment portfolio of the Fund, compliance with Subchapter M
of the Internal Revenue Code, the distribution of the Fund and the maintenance
of its financial records. A complete list of the Administrators obligations is
set forth in Appendix A to this Agreement. The Administrator shall:
(i) provide its own office space, facilities and equipment and personnel
for the performance of its duties under this Agreement.
(ii) take, on behalf of the Fund, all actions which appear to the Fund's
Board of Directors necessary to carry into effect the administration
of the Fund's affairs.
(b) The Directors of the Fund shall cause the officers, Advisor,
Distributor, legal counsel, independent accountants, custodian and transfer
agent of the Fund to cooperate with the Administrator and to provide the
Administrator, upon request, with such information, documents and advice
relating to the Fund as is within the possession or knowledge of such persons,
in order to enable the Administrator to perform its duties hereunder. In
connection with its duties hereunder, the Administrator shall be entitled to
rely, and shall be held harmless by the Fund when acting in reliance, upon the
instructions, advice or any documents relating to the Fund provided to the
Administrator by any of the aforerment toned persons. Fees charged by such
persons shall he a Fund expense.
(c) Any activities performed by the Administrator under this section shall
be performed on a best efforts basis to conform, in all material respects, to
any requirements imposed by: (1) the provisions of the Investment Company Act of
1940 (the "Act") and the Securities Act of 1933 and of any rules or regulations
in force thereunder; (2) any other applicable provision of state and federal
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; and (5) the fundamental policies of the Fund, as
reflected in its registration statement under the Act.
(d) Nothing in this Agreement shall prevent the Administrator or any
officer thereof xxxx acting as administrator for or with any other person, firm
or corporation. While the administrative services supplied to the Fund may be
different than those supplied to other persons, firms or corporations, the
Administrator shall give the Fund equitable treatment in supplying services. The
Fund recognizes that it is not to receive preferential treatment from the
Administrator as compared wi th the treatment given other persons, firms or
corporations.
(e) The Administrator will treat confidentially and as proprietary informal
ion of the Fund al1 records and other information reletive to the Fund and its
prior or present shareholders, and except as provided below, will not use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder. Any other use by the Administrator of the
information and records referred to above may be made only after prior
notification to and approval in writing by the Fund. Such approval shall not be
unreasonably withheld and may not be withheld where (i) the Administrator may be
exposed to civil or criminal contempt proceedings for failure to develop such
information; (ii) the Administrator is requested to divulge such information by
duly constituted authorities; or (iii) the Administrator is so required by the
Fund.
3. Allocation of Expenses
All costs and expenses of the Fund shall be paid by the Fund, including,
but not limited to (i) fees paid to the Advisor and fees and out-of-pocket
expenses paid to the Administrator; (ii) interest and taxes; (iii) brokerage
fees and carrmissions; (iv) insurance premiums; (v) compensation and expenses of
its directors who are not affiliated persons of the Adviser; (vi) legal,
accounting and audit expenses; (vii) custodian and transfer agent, or
shareholder servicing agent, fees and expenses; (viii) expenses, including
clerical expenses, incident to the issuance, redemption or repurchase of its
shares, including issuance on the payment of, or reinvestment of, dividends;
(ix) fees and expenses incident to the registration under Federal or state
securities laws of the Fund or its shares; (x) expenses of preparing, setting in
type, printing and mailing prospectuses, statements of additional information,
reports and notices and proxy material to shareholders of the Fund; (xi) all
expenses incidental to holding meetings of the Fund's shareholders and
Directors; and (xii) such extraordinary expenses as may arise, including
litigation affecting the Fund and the legal obligations which the Fund may have
to indemnify its officers and Directors wi th respect thereto.
4. Compensation of the Administrator
(a) The Fund agrees to pay the Administrator, and the Administrator agrees
to accept as full compensation for all services rendered hereunder, an annual
fee of $20,000, payable in equal monthly installments and out-of-pocket expenses
incurred by the Administrator in the performance of services hereunder. Except
as hereinafter set forth, compensation under this Agreement shall be calculated
and accrued daily and the amounts of the daily accruals shall be paid monthly.
Out-of-pocket expenses shall include telecommunication charges, postage and del
xxxxx charges, record resent ion costs, reproduct ion charges and transportation
and lodging costs when travel on Fund business is required. The Fund authorizes
the Administrator to debit the Fund's custody account for invoices which are
rendered for the services performed hereunder. The invoices for the services
will be sent to the Fund after the debiting with indication that payment has
been made. Invoices for out-of-pocket expenses shall be reviewed by the Fund
prarr~ptly upon receipt and the Administrator shall be authorized to debit the
Fund's custody account upon approval of the invoices by the Fund. Upon any
termination of this Agreement before the end of any month, the fee for such part
of a month shall be prorated according to the proportion which such period bears
to the full monthly period and shall be provable upon the date of termination of
this Agreement.
(b) Should additional or fewer services or functions beyond those outlined
in Section 2 above, or in Appendix A attached, be desired or required of the
Administrator during the time that this contract is in effect, a written
amendment to this Administration Agreement reflecting such shall he signed by
both the Administrator and the Fund, and the carnpensation stated in Section 4
may be increased or decreased accordingly.
5. Duration and Termination
(a) This Agreement shall go into effect on March 1, 1990 (the "Effective
Date") and shall continue in effect for two years from the Effective Date. This
Agreement shall continue in force from year to year thereafter, but only so long
as such continuance is approved (1) by the Administrator, (2) by vote, cast in
person at a meeting called for the purpose, of a majority of the Fund's
Directors who are not parties to this Agreement or interested persons (as
defined in the Act) of any such party, and (3) by vote of a rrejority of the
Fund's Board of Directors or a majority of the Fund ' s out s tend i ng voting
securities.
(b) This Agreement may be terminated by the Administrator at any t ime
without penalty upon giving the Fund one hundred twenty (120) days' written
notice (which notice tray be waived in writing by the Fund) and may be
terminated by the Fund at any time upon giving the Administrator one hundred
twenty (120) days' written notice (which notice may be waived in writing by the
Administrator) 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.
(c) This Agreement shall autarnatically terminate in the event of its ass
ignment.
6. Amendment
The terms of this Agreement shall not be waived, altered, modi fled,
amended or supplemented in any manner whatsoever except by a written instrument
signed by the Administrator and the Fund.
7. Applicable Law
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
8. Limitation of Liability
(a) The execution and del xxxxx of this contract have been duly authorized
by the Board of Directors of the Fund and executed on behalf of the Fund by the
undersigned officer of the Fund in his capacity as an officer of the Fund. The
obligations of this Agreement shall be binding upon the assets and property of
the Fund only and shall not be binding upon any director, officer or shareholder
of the Fund individually.
(b) The Administrator, its directors, officers, employees, shareholders and
agents shal 1 not be 1 table for any error of judgment or mistake of law or for
any loss suffered by the Fund in connection with the perforrrance of this
Agreement, except a loss resulting from willful misfeasance, bad faith or gross
negligence on the part of the Administrator in the performance of its
obligations and duties under this Agreement.
(c) Any person, even though also a director, officer, employee, shareholder
or agent of the Administrator, who may be or became an officer, director,
employee or agent of the Fund, shall be deemed, when rendering services to the
Fund or acting on any business of the Fund (other than services or business in
connection with the Administrator's duties hereunder), to be rendering such
services to or acting solely for the Fund and not as a director, officer,
employee, shareholder or agent of, or one under the control or direction of the
Administrator even though paid by it.
(d) Notwithstanding any other provision of this Agreement, the Fund shall
indemnify and hold harmless the Administrator, its directors, officers,
employees, shareholders and agents frarn and against any and all claims,
demands, expenses and liabilities (whether with or without basis in fact or law)
of any and every nature which the Administrator may sustain or incur or which
may be asserted against the Administrator by any person by reason of, or as a
result of (i) any action taken or Knitted to be taken by the Administrator in
good faith hereunder, (ii) in reliance upon any certificate, instrument, order
or stock certificate or other document reasonably believed by it to be genuine
and to he signed, countersigned or executed by any duly authorized person, upon
the oral instructions or written instructions of an authorized person of the
Fund or upon the opinion of legal counsel for the Fund or its awn counsel; or
(iii) any action taken or omitted to be taken by the Acininistrator in
connection with its appointment in good faith in reliance upon any law, act,
regulat ion or interpretat ion of the same even though the same may thereafter
have been altered, changed, amended or repealed. However, indemnification under
this subparagraph shall not apply to actions or omissions of the A~ninistrator
or its directors, officers, employees, shareholders or agents in cases of its or
their own negligence, willful misconduct, bad faith, or reckless disregard of
its or their own duties hereunder .
(e) The Administrator shall give written notice to the Fund within ten (lo)
business days of receipt by the Administrator of a written assertion or claim of
any threatened or pending legal proceeding which may be subject to this
indemnification. However, the failure to notify the Fund of such written
assertion or claim shall not operate in any manner whatsoever to relieve the
Fund of any liability arising frarn this Section or otherwise.
(f) For any legal proceeding giving rise to this indemnification, the Fund
shall be entitled to defend or prosecute any claim in the name of the
Administrator at its awn expense and through counsel of its own choosing if it
gives written notice to the Administrator within ten (lo) business days of
receiving notice of such claim. Notwithstanding the foregoing, the Administrator
may participate in the litigation at its own expense through counsel of its own
choosing. If the Fund does choose to defend or prosecute such claim, then the
parties shall cooperate in the defense or prosecution thereof and shall furnish
such records and other information as are reasonably necessary.
(g) The terms of Paragraph 8 shal] survive the termination of this
Agreement.
9. Notices
All notices, requests, consents and other communications pursuant to this
Agreement shall be in writing and shall be deemed to have been given when sent
by registered or certified mail, return receipt requested, or by personal
delivery.
(a) Notice to Administrator shall be directed to the following address:
Fund/Plan Services, Inc.
0 Xxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, President
(b) Notices to Fund shall be directed to the following address:
Xxxxxxxx Growth Fund, Inc.
Plymouth Meeting Executive Campus
000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, President
10. Invalidity
Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
11. Section Headings
Section and Paragraph headings are for convenience only and shall not be
construed as part of this Agreement.
12. Entire Agreement
This Agreement constitutes the entire Agreement of the parties hereto, and
supersedes any and all prior agreements, arrangements and understandings
relating to such services.
13. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original agreement but such counterparts shall together
constitute but one and the same instrument.
IN WITNESS I, the part ies hereto have caused the foregoing instrument to
be executed by their duly authorized officers and their seals to be hereunto
affixed, all as of the day and year first above written.
XXXXXXXX GROWTH FUND
By /s/ Xxxxx X. Xxxxxxxx
Title: Chairman
(SEAL)
Attest: /s/ Xxxxxxxx X. Xxxxx
FUND/PLAN SERVICES, Inc.
By /s/ Xxxx Xxxxxxxxx
Title: President
(SEAL)
Attest /s/ X.X. Xxxxxx
APPENDIX A
FUND/PLAN SERVICES, INC.
FUND ADMINISTRATION RESPONSIBILITIES
REGULATORY COMPLIANCE
SEC
N-1A, and all Post-Effective Amendments thereto
N-SAR
24f-2
proxy, when necessary
fidelity bond, preparation, review and filing
under 17g-1
filing shareholder reports under 30b2-1
BLUE SKY
registration shares (initial/renewal)
" as issuer/dealer and renewals
" of agent and renewals interim filing of all shareholder reports
and pertinent SEC filings
CORPORATE BUSINESS
Maintain Blue Sky Calendar
Respond to all services/listing questionnaires
Update and maintain XXX Xxxxx/403b7 material
APPENDIX B
FEES
The Fund shall pay Fund/Plan Services, Inc. $20,000 annually, payable in equal
monthly installments, to be debited to the Fund's custody account on the first
business day of each month, plus out of pocket expenses incurred by the
Administrator in the performance of its services.
