EXHIBIT 9(a)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this __ day of _______, 1998, by and
between The Nevis Fund, Inc., a Maryland corporation, (the "Fund"), and SEI
Investments Mutual Fund Services (the "Administrator"), a Delaware business
trust.
WHEREAS, the Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
WHEREAS, the Fund desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
such series of the Fund as the Fund and the Administrator may agree on
("Portfolios") and as listed on the schedules attached hereto ("Schedules") and
made a part of this Agreement, on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Fund and the Administrator hereby agree as follows:
ARTICLE 1. Retention of the Administrator. The Fund hereby retains the
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Administrator to act as the administrator of the Portfolios and to furnish the
Portfolios with the management and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform the
duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Fund in any way and shall
not be deemed an agent of the Fund.
ARTICLE 2. Administrative and Accounting Services. The Administrator
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shall perform or supervise the performance by others of administrative services
in connection with the operations of the Portfolios, and, on behalf of the Fund,
will investigate, assist in the selection of and conduct relations with
custodians, depositories, accountants, legal counsel, underwriters, brokers and
dealers, corporate fiduciaries, insurers, banks and persons in any other
capacity deemed to be necessary or desirable for the Portfolios' operations. The
Administrator shall provide the Board of Directors of the Fund with such reports
regarding investment performance and compliance with investment policies and
applicable laws, rules and regulations as they may reasonably request but shall
have no responsibility for supervising the performance by any investment adviser
or sub-adviser of its responsibilities. The Administrator may, with the prior
consent of the Fund, appoint a sub-administrator to perform certain of the
services to be performed by the Administrator hereunder.
The Administrator shall provide the Fund with administrative services,
regulatory reporting, fund accounting and related portfolio accounting services,
all necessary office space, equipment, personnel, compensation and facilities
(including facilities for shareholders' and Directors' meetings) for handling
the affairs of the Portfolios and such other services as the
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Directors may, from time to time, reasonably request and the Administrator
shall, from time to time, reasonably determine to be necessary to perform its
obligations under this Agreement. In addition, at the request of the Fund's
Board of Directors (the "Directors"), the Administrator shall make reports to
the Directors concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(A) calculate contractual Fund expenses and control all disbursements for
the Fund, and as appropriate compute the Portfolios' yields, total
returns, expense ratios, portfolio turnover rates and, if required,
portfolio average dollar-weighed maturities;
(B) assist Fund counsel with the preparation of prospectuses, statements
of additional information, registration statements, and proxy
materials;
(C) prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares as may be required in
order to comply with Federal and state securities law) as may be
necessary or desirable to register the Fund's shares with state
securities authorities, monitor sale of Fund shares for compliance
with state securities laws, and file with the appropriate state
securities authorities the registration statements and reports for the
Fund and the Fund's shares and all amendments thereto, as may be
necessary or convenient to register and keep effective the Fund and
the Fund's shares with state securities authorities to enable the Fund
to make a continuous offering of its shares;
(D) develop and prepare communications to shareholders, including the
annual report to shareholders, coordinate mailing prospectuses,
notices, proxy statements, proxies and other reports to Fund
shareholders, and supervise and facilitate the solicitation of proxies
solicited by the Fund for all shareholder meetings, including
tabulation process for shareholder meetings;
(E) coordinate with Fund counsel the preparation and negotiation of, and
administer contracts on behalf of the Fund with, among others, the
Fund's investment adviser, distributor, custodian, and transfer agent;
(F) maintain the Fund's general ledger and prepare the Fund's financial
statements, including expense accruals and payments, determine the net
asset value of the Fund's assets and of the Fund's shares, and
supervise the Fund's transfer agent with respect to the payment of
dividends and other distributions to shareholders;
(G) calculate performance data of the Portfolios for dissemination to
information services covering the investment company industry;
(H) coordinate and supervise the preparation and filing of the Portfolios'
tax returns;
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(I) examine and review the operations and performance of the various
organizations providing services to the Fund or any Portfolio,
including, without limitation, the Fund's investment adviser,
distributor, custodian, transfer agent, outside legal counsel and
independent public accountants, and at the request of the Directors,
report to the Directors on the performance of organizations;
(J) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing of the
Fund's semi-annual and annual reports to shareholders;
(K) provide internal legal and administrative services as requested by the
Fund from time to time;
(L) assist with the design, development, and operation of the Fund,
including new portfolio and class investment objectives, policies and
structure;
(M) provide individuals acceptable to the Directors for nomination,
appointment, or election as officers of the Fund, who will be
responsible for the management of certain of the Fund's affairs as
determined by the Directors;
(N) advise the Fund and its Directors on matters concerning the Fund and
its affairs;
(O) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Fund in
accordance with the requirements of Rules 17g-1 and 17d-1(d)(7) under
the 1940 Act as such bonds and policies are approved by the Fund's
Board of Directors;
(P) monitor and advise the Fund and its Portfolios on their regulated
investment company status under the Internal Revenue Code of 1986, as
amended;
(Q) perform all administrative services and functions of the Fund and each
Portfolio to the extent administrative services and functions are not
provided to the Fund or such Portfolio pursuant to the Fund's or such
Portfolio's investment advisory agreement, distribution agreement,
custodian agreement and transfer agent agreement;
(R) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Portfolios as the Fund and the
Administrator shall determine desirable; and
(S) prepare and file with the SEC the semi-annual report for the Fund on
Form N-SAR and all required notices pursuant to Rule 24f-2.
Also, the Administrator will perform other services for the Fund as agreed from
time to time, including, but not limited to performing internal audit
examinations; mailing the annual reports
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of the Portfolios; preparing an annual list of shareholders; and mailing notices
of shareholders' meetings, proxies and proxy statements, for all of which the
Fund will pay the Administrator's out-of-pocket expenses.
ARTICLE 3. Allocation of Charges and Expenses.
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(A) The Administrator. The Administrator shall furnish at its own
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expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator shall also provide the
items which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Fund as well as all Directors of the
Fund who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Fund retained by the Directors of the Fund
to perform services on behalf of the Fund.
(B) The Fund. The Fund assumes and shall pay or cause to be paid all
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other expenses of the Fund not otherwise allocated herein, including, without
limitation, organizational costs, taxes, expenses for legal and auditing
services, the expenses of preparing (including typesetting), printing and
mailing reports, prospectuses, statements of additional information, proxy
solicitation material and notices to existing shareholders, all expenses
incurred in connection with issuing and redeeming shares, the costs of pricing
services, the costs of custodial services, the cost of initial and ongoing
registration of the shares under Federal and state securities laws, fees and
out-of-pocket expenses of Directors who are not affiliated persons of the
Administrator or the investment adviser to the Fund or any affiliated
corporation of the Administrator or the investment adviser, the costs of
Directors' meetings, insurance, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Fund.
ARTICLE 4. Compensation of the Administrator.
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(A) Administration Fee. For the services to be rendered, the
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facilities furnished and the expenses assumed by the Administrator pursuant to
this Agreement, the Fund shall pay to the Administrator compensation at an
annual rate specified in the Schedules. Such compensation shall be calculated
and accrued daily, and paid to the Administrator monthly. The Fund shall also
reimburse the Administrator for its reasonable out-of-pocket expenses.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) Compensation from Transactions. The Fund hereby authorizes any
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entity or person associated with the Administrator which is a member of a
national securities exchange to effect any transaction on the exchange for the
account of the Fund which is permitted by Section
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11 (a) of the Securities Exchange Act of 1934 and Rule 11a2-2(T) thereunder, and
the Fund hereby consents to the retention of compensation for such transactions
in accordance with Rule 11a2-2(T) (a) (2) (iv).
(C) Survival of Compensation Rates. All rights of compensation under
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this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
ARTICLE 5. Limitation of Liability of the Administrator. The duties
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of the Administrator shall be confined to those expressly set forth herein, and
no implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or
omission in carrying out its duties hereunder, except a loss resulting from
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder, except as may otherwise be provided under provisions of applicable
law which cannot be waived or modified hereby. (As used in this Article 5, the
term "Administrator" shall include directors, officers, employees and other
agents of the Administrator as well as that corporation itself.)
So long as the Administrator, or its agents, acts in good faith and with
due diligence the Fund assumes full responsibility and shall indemnify the
Administrator and hold it harmless from and against any and all actions, suits
and claims, whether groundless or otherwise, and from and against any and all
losses, damages, costs, charges, reasonable counsel fees and disbursements,
payments, expenses and liabilities (including reasonable investigation expenses)
arising directly or indirectly out of said administration, transfer agency, and
dividend disbursing relationships to the Fund or any other service rendered to
the Fund hereunder. The indemnity and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
The rights hereunder shall include the right to reasonable advances of
defense expenses in the event of any pending or threatened litigation with
respect to which indemnification hereunder may ultimately be merited. In order
that the indemnification provision contained herein shall apply, however, it is
understood that if in any case the Fund may be asked to indemnify or hold the
Administrator harmless, the Fund shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that the Administrator will use all reasonable care to identify and
notify the Fund promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Fund, but failure to do so in good faith shall not affect the rights
hereunder.
The Fund shall be entitled to participate at its own expense or, if it
so elects, to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If the Fund elects to assume the defense of
any such claim, the defense shall be conducted by counsel chosen by the Fund and
satisfactory to the Administrator, whose approval shall not be unreasonably
withheld. In the event that the Fund elects to assume the defense of any suit
and retain counsel, the Administrator shall bear the fees and expenses of any
additional counsel retained by it. If the Fund does not elect to assume the
defense of a suit, it will reimburse the
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Administrator for the reasonable fees and expenses of any counsel retained by
the Administrator.
The Administrator may apply to the Fund at any time for instructions and
may consult counsel for the Fund or its own counsel and with accountants and
other experts with respect to any matter arising in connection with the
Administrator's duties, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance with such
instruction or with the opinion of such counsel, accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. Nor shall the Administrator be held to have
notice of any change of authority of any officers, employee or agent of the Fund
until receipt of written notice thereof from the Fund.
ARTICLE 6. Activities of the Administrator. The services of the
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Administrator rendered to the Fund are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests, so long as the services rendered to the Fund and the
Portfolios hereunder are not impaired. It is understood that Directors,
officers, employees and Shareholders of the Fund are or may be or become
interested in the Administrator, as directors, officers, employees and
shareholders or otherwise and that directors, officers, employees and
shareholders of the Administrator and its counsel are or may be or become
similarly interested in the Fund, and that the Administrator may be or become
interested in the Fund as a Shareholder or otherwise.
ARTICLE 7. Confidentiality. The Administrator agrees on behalf of
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itself and its employees to treat confidentially all records and other
information relative to the Fund and its prior, present or potential
shareholders and relative to the Fund's investment adviser and its prior,
present or potential customers, except, after prior notification to and approval
in writing by the Fund, which approval shall not be unreasonably withheld and
may not be withheld where the Administrator may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the Fund.
ARTICLE 8. Equipment Failures. In the event of equipment failures
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beyond the Administrator's control, the Administrator shall, at no additional
expense to the Fund, take reasonable steps to minimize service interruptions but
shall have no liability with respect thereto. The Administrator shall develop
and maintain a plan for recovery from equipment failures which may include
contractual arrangements with appropriate parties making reasonable provision
for emergency use of electronic data processing equipment to the extent
appropriate equipment is available.
ARTICLE 9. Compliance With Governmental Rules and Regulations. The
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Administrator undertakes to comply with all applicable requirements of the
Securities Act of 1933, the Securities Exchange Act of 1934, the 1940 Act and
any laws, rules and regulations of governmental authorities having jurisdiction
with respect to the duties to be performed by the Administrator hereunder.
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ARTICLE 10. Duration and Termination of this Agreement. This
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Agreement shall become effective on the date hereof and unless terminated in
accordance with the provisions of this Article 10, shall remain in effect for an
initial term of three years (the "Initial Term") and thereafter, if approved by
the Board of Directors of the Fund, shall continue in effect for successive
periods of one (1) year. This Agreement may be terminated only: (a) by the
mutual written agreement of the parties; (b) by either party hereto, as of the
end of the Initial Term or thereafter; (c) by either party hereto on such date
as is specified in written notice given by the terminating party, in the event
of a material breach of this Agreement by the other party, provided the
terminating party has notified the other party of such breach at least 45 days
prior to the specified date of termination and the breaching party has not
remedied such breach by the specified date; (d) effective upon the liquidation
of the Administrator; or (e) as to any Portfolio or the Fund, effective upon the
liquidation of such Portfolio or the Fund, as the case may be. For purposes of
this Article 10, the term "liquidation" shall mean a transaction in which the
assets of the Administrator, the Fund or a Portfolio are sold or otherwise
disposed of and proceeds therefrom are distributed in cash to the shareholders
in complete liquidation of the interests of such shareholders in the entity.
This Agreement shall not be assignable by the Administrator, without the
prior written consent of the Fund.
ARTICLE 11. Amendments. This Agreement or any part hereof may be
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changed or waived only by an instrument in writing signed by the party against
which enforcement of such change or waiver is sought.
ARTICLE 12. Certain Records. The Administrator shall maintain
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customary records in connection with its duties as specified in this Agreement.
Any records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Fund shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Fund and will be made available
to or surrendered promptly to the Fund on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Fund and follow the Fund's
instructions as to permitting or refusing such inspection; provided that the
Administrator may exhibit such records to any person in any case where it is
advised by its counsel that it may be held liable for failure to do so, unless
(in cases involving potential exposure only to civil liability) the Fund has
agreed to indemnify the Administrator against such liability.
ARTICLE 13. Definitions of Certain Terms. The terms "interested
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person" and "affiliated person," when used in this Agreement, shall have the
respective meanings specified in the 1940 Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the Securities and
Exchange Commission.
ARTICLE 14. Notice. Any notice required or permitted to be given by
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either party to
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the other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
last address furnished by the other party to the party giving notice: if to the
Fund, c/o Nevis Capital Management, Inc., 0000 Xx. Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000; and if to the Administrator at 0 Xxxxxxx Xxxxxx Xxxxx, Xxxx,
Xxxxxxxxxxxx, 00000.
ARTICLE 15. Governing Law. This Agreement shall be construed in
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accordance with the laws of the State of Maryland and the applicable provisions
of the 1940 Act. To the extent that the applicable laws of the State of
Maryland, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
ARTICLE 16. Multiple Originals. This Agreement may be executed in two
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or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 17. Binding Agreement. This Agreement, and the rights and
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obligations of the parties hereunder, shall be binding on, and inure to the
benefit of, the parties and the respective successors and assigns of each of
them.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE NEVIS FUND, INC.
By:
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Attest:
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SEI INVESTMENTS MUTUAL FUND SERVICES
By:
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Attest:
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SCHEDULE
TO THE ADMINISTRATION AGREEMENT
DATED AS OF ______________, 1998
BETWEEN
THE NEVIS FUND, INC.
AND
SEI INVESTMENTS MUTUAL FUND SERVICES
Portfolios: This Agreement shall apply to all Portfolios of the Fund, either
now or in the future created. The following is a listing of the
current portfolios of the Fund ________________ (collectively, the
"Portfolios").
Fees: Pursuant to Article 4, Section A, the Fund shall pay the
Administrator compensation for services rendered to the Portfolios
at an annual rate, which is calculated daily and paid monthly, at a
maximum administrative fee equal to the greater of 0.12% of the
first $100 million of the Portfolios' aggregate average daily net
assets, 0.10% of the next $100 million of such assets and 0.08% of
such assets in excess of $200 million, or $90,000 per Portfolio
plus $15,000 per each additional share class thereof.
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