Exhibit (m)(x) under Form N-1A
Exhibit (1) under Item 601/Reg. S-K
ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement is made as of this 1st day of
January, 2000, between Xxxxxxxx Funds, Inc., a Wisconsin corporation
(herein called the "Fund"), and Xxxxxxxx & Ilsley Trust Company, a
Wisconsin trust company bank (herein called "M&I").
WHEREAS, the Fund is a Wisconsin corporation, consisting of one or
more portfolios, which operates as an open-end management investment
company and will so register under the Investment Company Act of 1940 (the
"Investment Company Act"); and
WHEREAS, the Fund desires to retain M&I as its Administrator to
provide it with administrative services, and M&I is willing to render such
services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties hereto agree as follows:
1. Appointment of Administrator. The Fund hereby appoints M&I as
Administrator of the Fund on the terms and conditions set forth in this
agreement; and M&I hereby accepts such appointment and agrees to perform
the services and duties set forth in Section 2 of this Agreement in
consideration of the compensation provided for in Section 4 hereof.
2. Services and Duties. As Administrator, and subject to the
supervision and control of the Fund's Board of Directors ("Directors"), M&I
will provide facilities, equipment, and personnel to carry out the
following administrative services for operation of the business and affairs
of the Fund and each of its portfolios:
(a) prepare, file, and maintain the Fund's governing documents,
including the Articles of Incorporation (which has already been
prepared and filed), the By-laws, minutes of meetings of Directors
and shareholders, and proxy statements for meetings of shareholders;
(b) prepare and file with the Securities and Exchange
Commission and the appropriate state securities authorities the
registration statement for the Fund and the Fund's shares and all
amendments thereto, reports to regulatory authorities and
shareholders, prospectuses, proxy statements, and such other
documents as may be necessary or convenient to enable the Fund to
make a continuous offering of its shares;
(c) prepare, negotiate, and administer contracts on behalf of
the Fund with, among others, the distributor, custodian, and transfer
agent;
(d) supervise the Fund's custodian and fund accountant in the
maintenance of the Fund's general ledger and in the preparation of
the Fund's financial statements, including oversight of expense
accruals and payments, of the determination of the net asset value of
the Fund's assets and of the Fund's shares, and of the declaration
and payment of dividends and other distributions to shareholders;
(e) calculate performance data of the Fund for dissemination to
information services covering the investment company industry;
(f) prepare and file on a timely basis the Fund's Federal and
State income tax returns (if applicable) and other tax returns;
(g) examine and review the operations of the Fund's custodian
and transfer agent;
(h) coordinate the layout and printing of publicly disseminated
prospectuses and reports;
(i) assist with the design, development, and operation of the
Fund;
(j) provide individuals reasonably acceptable to the Fund's
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 Fund's Directors;
(k) monitor the Fund's compliance with Section 851 through 855
of the Internal Revenue Code so as to enable the Fund to maintain its
status as a "regulated investment company;" and
(l) advise the Fund and its Board of Directors on matters
concerning the Fund and its affairs.
M&I acknowledges the importance of efficient and prompt transmission
of information to the Fund's transfer agent. M&I agrees to use its best
efforts to meet the deadline for transmission of pricing information
presently set by the Fund's transfer agent and such future deadlines as may
be reasonably established by the Fund's transfer agent.
The foregoing, along with any additional services that M&I shall
agree in writing to perform for the Fund hereunder, shall hereafter be
referred to as "Administrative Services." In compliance with Rule 31a-3
under the Investment Company Act, M&I hereby agrees that all records that
it maintains for the Fund are the property of the Fund and further agrees
to surrender promptly to the Fund any such records upon the Fund's
request. M&I further agrees to preserve any records it maintains for the
period prescribed by the Investment Company Act and rules promulgated
thereunder. Administrative Services shall not include any duties,
functions, or services to be performed for the Fund by the Fund's
investment adviser, distributor, custodian, or transfer agent pursuant to
their agreements with the Fund.
3. Expenses. M&I shall be responsible for expenses incurred in
providing all the Administrative Services, as described in Section 2, to
the Fund, including the compensation of M&I employees who serve as
Directors or Officers of the Fund. The Fund shall be responsible for all
other expenses incurred by M&I on behalf of the Fund, including without
limitation postage and courier expenses, printing expenses, travel
expenses, registration fees, filing fees, fees of outside counsel and
independent auditors, insurance premiums, fees payable to directors who are
not M&I employees, taxes, and trade association dues.
4. Compensation. For the Administrative Services provided, the
Funds hereby agree to pay and M&I hereby agrees to accept as full
compensation for its services rendered hereunder an administrative fee at
an annual rate as a percentage of the aggregate daily net assets of the
Fund, payable daily, as specified below:
Maximum Administrative Average Aggregate Daily Net
Fee Assets of the Portfolios
.15% on the first $250 million
.125% on the next $250 million
.100% on the next $250 million
.075% on assets in excess of
$750 million
However, in no event shall the administrative fee received during any
year of this contract be less than, or be paid at a rate less than would
aggregate, $50,000, per portfolio.
Notwithstanding the foregoing table, for the Administrative Services
provided to the Xxxxxxxx Small-Cap Stock Fund ("Small-Cap"), the
Corporation hereby agrees to pay and M&I hereby agrees to accept as full
compensation for its services rendered to Small-Cap, an administrative fee
equal to .12 of 1% of Small-Cap's average daily net assets, payable daily.
5. Responsibility of Administrator.
(a) M&I shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection
with the matters to which this Agreement relates, except 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 Agreement. M&I shall
be entitled to rely on and may act upon advice of counsel, approved
in each case by the Directors and acceptable to M&I, on all matters
relating to the Fund, and shall be without liability for any action
reasonably taken or omitted pursuant to such advice. Any person,
even though 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 duties of M&I hereunder) in accordance with his
responsibilities to the Fund as such officer, director, employee, or
agent to be rendering such services to or acting solely for the Fund
and not as an officer, director, partner, employee or agent or one
under the control or direction of M&I even though paid by M&I.
(b) M&I shall be kept indemnified by the Fund and be without
liability for any action taken or thing done by it in performing the
Administrative Services in accordance with the above standards;
provided, however, that the Fund will not indemnify M&I for the
portion of any loss or claim caused, directly or indirectly, by the
gross negligence of M&I. In order that the indemnification
provisions contained in this Section 5 shall apply, however, it is
understood that if in any case the Fund may be asked to indemnify or
save M&I harmless, the Fund shall be fully and promptly advised of
all pertinent facts concerning the situation in questions, and it is
further understood that M&I 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. The Fund shall have the option to
defend M&I against any claim which may be the subject of this
indemnification. In the event that the Fund so elects it will so
notify M&I and thereupon the Fund shall take over complete defense of
the claim, and M&I shall in such situation initiate no further legal
or other expenses for which it shall seek indemnification under this
Section. M&I shall in no case confess any claim or make any
compromise in any case in which the Fund will be asked to indemnify
M&I except with the Fund's written consent.
6. Duration and Termination.
(a) The initial term of this Agreement shall commence on the
date hereof, and extend for a period of one year from the effective
date hereof.
(b) Thereafter, this Agreement shall continue in effect for
successive one year periods if such continuance is approved at least
annually by the Directors of the Fund including a majority of the
members of the Board of Directors that are not "interested persons"
as defined by the Investment Company Act.
(c) Notwithstanding the foregoing, this Agreement may be
terminated at any time by mutual agreement of the parties hereto or
for "cause" (as defined below) in either case on not less than 60
days notice given by the Fund's Directors or given by M&I. For
purposes of this agreement "cause" shall mean (i) a determination
that M&I has acted in a manner that constitutes willful misfeasance,
bad faith, gross negligence or a reckless disregard for its duties
and obligations described herein; (ii) a final judicial, regulatory
or administrative ruling or order in which M&I has been found guilty
of criminal misconduct or of unethical behavior in the operation of
its business; (iii) the dissolution or liquidation of either party or
other cessation of business other than reorganization or
recapitalization as an ongoing business; (iv) financial difficulties
on the part of either party which is evidenced by the authorization
or commencement of, or acquiescence in, a voluntary or involuntary
case under Title 11 of the United States Code, as may be in effect
from time to time, or any applicable law, or any applicable law of
any jurisdiction relating to the liquidation or reorganization of
debtors or to the modification or attention of the rights of
creditors; or (v) any other circumstances which substantially impairs
the performance of either party's obligations hereunder. For
purposes of subsection (c)(i) and (v) hereof, "cause" shall be
determined by an arbitrator selected and acting pursuant to the rules
of the American Arbitration Association. Both parties agree to use
their best efforts to expedite the holding of the arbitration and to
request that the arbitrator issue his finding at the earliest
possible date.
(d) Upon the termination of this Agreement, the Fund shall pay
to M&I such compensation as may be payable prior to the effective
date of such termination. In the event that the Fund designates a
successor any of M&I's obligations hereunder, M&I shall, at the
direction of the Fund and at the expense of the Fund, transfer to
such successor all relevant books, records and other data established
or maintained by M&I under the foregoing provisions.
7. Amendment. No provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which an enforcement of the change,
waiver, discharge or termination is sought.
8. Proprietary and Confidential Information. M&I agrees on behalf
of itself and its directors, officers, and employees to treat
confidentially and as proprietary information of the Fund all the records
and other information relative to the Fund and prior, present, or potential
Shareholders, and not to use such records and information for any purpose
other than performance of its responsibilities and duties hereunder, except
after prior notification to and approval in writing by the Fund, which
approval may not be withheld where M&I 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. The intentional failure of M&I to comply with its obligations under
this paragraph, as determined by an arbitrator selected and acting in a
manner described in Paragraph 6(c), shall constitute "cause" as described
in that section.
9. Notices. Notices of any kind to be given to the Fund or M&I
hereunder by either party shall be in writing and shall be duly given if
delivered to the party receiving the notice at the following addresses:
Xxxxxxxx Funds, Inc., 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxx X. Xxxxxx, President; Xxxxxxxx Xxxxx Trust Company, 0000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxxx, President.
10. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court or
regulatory agency decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. Subject to the provisions of
Section 5, hereof, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and shall
be governed by Wisconsin law; provided, however, that nothing herein shall
be construed in a manner inconsistent with the Investment Company Act or
any rule or regulation promulgated by the Securities and Exchange
Commission thereunder, or the Wisconsin Business Corporation Law.
11. Assignment; Successors. This Agreement shall not be assigned by
either party without the prior written consent of the other party, except
that either party may assign all of or a substantial portion of its
business to a successor, or to a party controlling, controlled by, or under
common control with such party. Nothing in this Section 11 shall prevent
M&I from delegating its responsibilities to another entity to the extent
provided herein.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designed below as of the day and year first
above written.
XXXXXXXX FUNDS, INC. XXXXXXXX & ILSLEY TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxx
Title: President Title: President
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and General Counsel
AMENDMENT NO. 1 TO
ADMINISTRATIVE SERVICES AGREEMENT
This Amendment to the Administrative Services Agreement is effective
as of this 15th day of September, 2000, between Xxxxxxxx Funds, Inc., a
Wisconsin corporation (herein called the "Fund"), and Xxxxxxxx & Ilsley
Trust Company, a Wisconsin trust company bank (herein called "M&I").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. No Modification of Agreement. The Administrative Services Agreement
dated January 1, 2000, is hereby incorporated by reference (the
"Agreement"). Unless a meaning is specified in this Amendment, all
capitalized terms used herein shall have the meaning ascribed to them
in the Agreement. Nothing in this Amendment shall be deemed to
modify, alter, negate, supersede or otherwise change in any manner or
form any provision of the Agreement, except as may be specifically
set forth herein.
2. Section 4 of the Agreement, Compensation, is hereby amended to read
in its entirety as follows:
4. Compensation. For the Administrative Services provided, the
Funds hereby agree to pay and M&I hereby agrees to accept as full
compensation for its services rendered hereunder an administrative
fee at an annual rate as a percentage of the aggregate daily net
assets of the each Fund portfolio, payable daily, as specified below:
Maximum Administrative Fee Average Daily Net Assets of
Each Fund Portfolio
.100% On the first $250 million
.095% On the next $250 million
.080% On the next $250 million
.060% On the next $250 million
.040% On the next $500 million
.020% On assets in excess of $1.5 billion
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
XXXXXXXX FUNDS, INC. XXXXXXXX & ILSLEY TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: President Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President & Securities
Counsel
