XXXXXXXXX XXXXXX EQUITY FUNDS
INVESTOR CLASS
FORM OF ADMINISTRATION AGREEMENT
This Agreement is made as of December 16, 2000, between Xxxxxxxxx
Xxxxxx Equity Funds, a Delaware business trust ("Trust"), and Xxxxxxxxx Xxxxxx
Management Inc., a New York corporation ("Administrator") with respect to the
Investor Class of shares.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end, diversified management investment
company and has established several separate series of shares ("Series"), with
each Series having its own assets and investment policies, and with each Series
having one or more classes of shares;
WHEREAS, the Trust desires to retain the Administrator to furnish
administrative services, including shareholder accounting, recordkeeping, and
other services to shareholders, to each Series listed in Schedule A attached
hereto (as it may be amended from time to time, or, as appropriate, the Investor
Class of each such Series), and the Administrator is willing to furnish such
services,
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties agree as follows:
1. SERVICES OF THE ADMINISTRATOR.
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1.1 ADMINISTRATIVE SERVICES. The Administrator shall supervise
the business and affairs of each Series and its Investor Class and shall provide
such services required for effective administration of such Series and their
Investor Class as are not provided by employees or other agents engaged by such
Series; PROVIDED, that the Administrator shall not have any obligation to
provide under this Agreement any services related to the distribution of a
Series's shares, or any other services that are the subject of a separate
agreement or arrangement between a Series and the Administrator. The
Administrator can use any of the officers and employees of Xxxxxxxxx Xxxxxx, LLC
to provide any of the services or reports required under this agreement. Subject
to the foregoing, in providing administrative services hereunder, the
Administrator shall:
1.1.1 OFFICE SPACE, EQUIPMENT AND FACILITIES. Furnish
without cost to each Series and its Investor Class, or pay the cost of, such
office space, office equipment and office facilities as are adequate for the
needs of the Series and their Investor Class;
1.1.2 PERSONNEL. Provide, without remuneration from or other
cost to each Series, the services of individuals competent to perform all of the
executive, administrative and clerical functions of each Series and its Investor
Class that are not performed by employees or other agents engaged by the Series
or by the Administrator acting in some other capacity pursuant to a separate
agreement or arrangement with the Series;
1.1.3 AGENTS. Assist each Series in selecting and
coordinating the activities of the other agents engaged by the Series, including
the Series's shareholder servicing agent, custodian, independent auditors and
legal counsel;
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1.1.4 TRUSTEES AND OFFICERS. Authorize and permit the
Administrator's directors, officers or employees who may be elected or appointed
as trustees or officers of the Trust to serve in such capacities, without
remuneration from or other cost to the Trust or any Series;
1.1.5 BOOKS AND RECORDS. Assure that all financial,
accounting and other records required to be maintained and preserved by each
Series are maintained and preserved by it or on its behalf in accordance with
applicable laws and regulations; and
1.1.6 REPORTS AND FILINGS. Assist in the preparation of
(but not pay for) all periodic reports by each Series or its Investor Class to
shareholders of such Series or Class and all reports and filings required to
maintain the registration and qualification of the Series and the Investor Class
shares, or to meet other regulatory or tax requirements applicable to the Series
or its Investor Class, under federal and state securities and tax laws.
1.2 SHAREHOLDER AND RELATED SERVICES. The Administrator shall
provide each of the following services as may be required by any Series, its
shareholders (each of which must be either a broker-dealer, pension plan
administrator, or other institution that provides certain accounting,
recordkeeping and other services to its accounts ("Accounts") and which has
entered into an administrative services agreement with the Administrator (each,
an "Institution")), or the Accounts, as specified; PROVIDED, that the
Administrator's obligation to furnish any service to Accounts or Account holders
of any Institution shall be dependent upon receipt of all necessary information
from that Institution:
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1.2.1 PURCHASE ORDERS. Receive for acceptance, as agent for
the Series, orders from Institutions and Accounts for the purchase of Series
shares transmitted or delivered to the office of the Administrator, note the
time and date of each order when received, promptly deliver payment for such
purchases to the Series' custodian ("Custodian"), and coordinate with the Series
or its designees for the issuance of the appropriate number of shares so
purchased to the appropriate Institution or Account;
1.2.2 RECORDS. Maintain records of the number of shares of
each Series attributable to each Account (including name, address and taxpayer
identification number), record all changes to such shares held in each Account
on a daily basis, and furnish to each Series each business day the total number
of shares of such Series attributable to all Accounts;
1.2.3 REDEMPTION REQUESTS. Receive for acceptance requests
and directions from Institutions and Accounts for the redemption of Series
shares transmitted or delivered to the office of the Administrator, note the
time and date of each request when received, process such requests and
directions in accordance with the redemption procedures set forth in the then
current Prospectus and Statement of Additional Information ("SAI") of the
Series, and deliver the appropriate documentation to the Custodian;
1.2.4 WIRE TRANSFERS. Coordinate and implement bank-to-bank
wire transfers in connection with Series share purchases and redemptions by
Institutions;
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1.2.5 REDEMPTION PAYMENTS. Upon receipt of monies paid to it
by the Custodian with respect to any redemption of Series shares, pay or cause
such monies to be paid pursuant to instructions by the appropriate Account or
Institution.
1.2.6 EXCHANGES. Receive and execute orders from Accounts
and Institutions to exchange shares by concurrent purchases and redemptions of
shares of a Series and shares of other Series or of other investment companies
or series thereof pursuant to each Series's then current Prospectus and SAI;
1.2.7 DIVIDENDS. Based upon information received from a
Series regarding dividends or other distributions on Series shares, calculate
the dividend or distribution attributable to each Account; if such dividend or
distribution is payable in shares or by reinvestment in shares, calculate such
shares for each Account and record same in the share records for each Account,
and if such dividend or distribution is payable in cash, upon receipt of monies
therefor from the Custodian, pay or cause such monies to be paid to the
appropriate Account or as such Account may direct;
1.2.8 INQUIRIES. Respond to telephonic, mail, and in-person
inquiries from Institutions, Account holders, or their representatives
requesting information regarding matters such as shareholder account or
transaction status, net asset value ("NAV") of Series shares, Series
performance, Series services, plans and options, Series investment policies,
Series portfolio holdings, and Series distributions and taxation thereof;
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1.2.9 COMPLAINTS. Deal with complaints and correspondence of
Institutions and Account holders directed to or brought to the attention of the
Administrator;
1.2.10 REPORTS; PROXIES. Distribute as appropriate to all
Account holders all Series reports, dividend and distribution notices, and proxy
material relating to any meeting of Series shareholders, and soliciting,
processing and tabulating proxies for such meetings;
1.2.11 SPECIAL REPORTS. Generate or develop and distribute
special data, notices, reports, programs and literature required by Institutions
or by Account holders generally in light of developments, such as changes in tax
laws; and
1.2.12 AGENTS. Assist any institutional servicing agent
("Agent") engaged by the Series in the development, implementation and
maintenance of the following special programs and systems to enhance each
Series's capability to service its shareholders and Account holders servicing
capability:
(a) Training programs for personnel of such Agent;
(b) Joint programs with such Agent for the
development of systems software, shareholder information reports, and other
special reports;
(c) Automatic data exchange facilities with
shareholders and such Agent;
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(d) Automated clearing house transfer procedures
between shareholders and such Agent; and
(e) Touch-tone telephone information and transaction
systems for shareholders.
2. EXPENSES OF EACH SERIES.
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2.1 EXPENSES TO BE PAID BY THE ADMINISTRATOR. The Administrator
shall pay all salaries, expenses and fees of the officers, trustees, or
employees of the Trust who are officers, directors or employees of the
Administrator. If the Administrator pays or assumes any expenses of the Trust,
Series or Class not required to be paid or assumed by the Administrator under
this Agreement, the Administrator shall not be obligated hereby to pay or assume
the same or any similar expense in the future; PROVIDED, that nothing herein
contained shall be deemed to relieve the Administrator of any obligation to the
Trust or to a Series or Class under any separate agreement or arrangement
between the parties.
2.2 EXPENSES TO BE PAID BY THE SERIES. Each Series shall bear all
expenses of its operation, except those specifically allocated to the
Administrator under this Agreement or under any separate agreement between such
Series and the Administrator. Expenses to be borne by such Series shall include
both expenses directly attributable to the operation of that Series and the
offering of its shares, as well as the portion of any expenses of the Trust that
is properly allocable to such Series in a manner approved by the trustees of the
Trust ("Trustees"). (The allocation of such expenses among the classes of a
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Series, on either a class-specific or a pro rata basis, shall be made in
accordance with the Trust's Rule 18f-3 Plan.) Subject to any separate agreement
or arrangement between the Trust or a Series and the Administrator, the expenses
hereby allocated to each Series, and not to the Administrator, include, but are
not limited to:
2.2.1 CUSTODY. All charges of depositories, custodians, and
other agents for the transfer, receipt, safekeeping, and servicing of its cash,
securities, and other property;
2.2.2 SHAREHOLDER SERVICING. All expenses of maintaining and
servicing shareholder accounts, including but not limited to the charges of any
shareholder servicing agent, dividend disbursing agent or other agent (other
than the Administrator hereunder) engaged by a Series to service shareholder
accounts;
2.2.3 SHAREHOLDER REPORTS. All expenses of preparing,
setting in type, printing and distributing reports and other communications to
shareholders of a Series;
2.2.4 PROSPECTUSES. All expenses of preparing, setting in
type, printing and mailing annual or more frequent revisions of a Series's
Prospectus and SAI and any supplements thereto and of supplying them to
shareholders of the Series and Account holders;
2.2.5 PRICING AND PORTFOLIO VALUATION. All expenses of
computing a Series's net asset value ("NAV") per share, including any equipment
or services obtained for the purpose of pricing shares or valuing the Series's
investment portfolio;
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2.2.6 COMMUNICATIONS. All charges for equipment or services
used for communications between the Administrator or the Series and any
custodian, shareholder servicing agent, portfolio accounting services agent, or
other agent engaged by a Series;
2.2.7 LEGAL AND ACCOUNTING FEES. All charges for services
and expenses of a Series's legal counsel and independent auditors;
2.2.8 TRUSTEES' FEES AND EXPENSES. All compensation of
Trustees other than those affiliated with the Administrator, all expenses
incurred in connection with such unaffiliated Trustees' services as Trustees,
and all other expenses of meetings of the Trustees or committees thereof;
2.2.9 SHAREHOLDER MEETINGS. All expenses incidental to
holding meetings of shareholders, including the printing of notices and proxy
materials, and proxy solicitation therefor;
2.2.10 FEDERAL REGISTRATION FEES. All fees and expenses of
registering and maintaining the registration of the Trust and each Series under
the 1940 Act and the registration of each Series's shares under the Securities
Act of 1933 (the "1933 Act"), including all fees and expenses incurred in
connection with the preparation, setting in type, printing, and filing of any
Registration Statement, Prospectus and SAI under the 1933 Act or the 1940 Act,
and any amendments or supplements that may be made from time to time;
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2.2.11 STATE REGISTRATION FEES. All fees and expenses of
qualifying and maintaining the qualification of the Trust and each Series and of
each Series's shares for sale under securities laws of various states or
jurisdictions, and of registration and qualification of each Series under all
other laws applicable to a Series or its business activities (including
registering the Series as a broker-dealer, or any officer of the Series or any
person as agent or salesman of the Series in any state);
2.2.12 SHARE CERTIFICATES. All expenses of preparing and
transmitting a Series's share certificates, if any;
2.2.13 CONFIRMATIONS. All expenses incurred in connection
with the issue and transfer of a Series's shares, including the expenses of
confirming all share transactions;
2.2.14 BONDING AND INSURANCE. All expenses of bond,
liability, and other insurance coverage required by law or regulation or deemed
advisable by the Trustees, including, without limitation, such bond, liability
and other insurance expense that may from time to time be allocated to the
Series in a manner approved by the Trustees;
2.2.15 BROKERAGE COMMISSIONS. All brokers' commissions and
other charges incident to the purchase, sale or lending of a Series's portfolio
securities;
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2.2.16 TAXES. All taxes or governmental fees payable by or
with respect to a Series to federal, state or other governmental agencies,
domestic or foreign, including stamp or other transfer taxes;
2.2.17 TRADE ASSOCIATION FEES. All fees, dues and other
expenses incurred in connection with a Series's membership in any trade
association or other investment organization;
2.2.18 NONRECURRING AND EXTRAORDINARY EXPENSES. Such
nonrecurring and extraordinary expenses as may arise, including the costs of
actions, suits, or proceedings to which the Series is a party and the expenses a
Series may incur as a result of its legal obligation to provide indemnification
to the Trust's officers, Trustees and agents;
2.2.19 ORGANIZATIONAL EXPENSES. All organizational expenses
of each Series paid or assessed by the Administrator, which such Series shall
reimburse to the Administrator at such time or times and subject to such
condition or conditions as shall be specified in the Prospectus and SAI pursuant
to which such Series makes the initial public offering of its shares; and
2.2.20 INVESTMENT ADVISORY SERVICES. Any fees and expenses
for investment advisory services that may be incurred or contracted for by a
Series.
3. ADMINISTRATION FEE.
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3.1 FEE. As compensation for all services rendered, facilities
provided and expenses paid or assumed by the Administrator to or for each Series
or its Investor Class under this Agreement, the Investor Class of such Series
shall pay the Administrator an annual fee as set out in Schedule B to this
Agreement.
3.2 COMPUTATION AND PAYMENT OF FEE. The administration fee shall
accrue on each calendar day, and shall be payable monthly on the first business
day of the next succeeding calendar month. The daily fee accruals for each
Series shall be computed by multiplying the fraction of one divided by the
number of days in the calendar year by the applicable annual administration fee
rate (as set forth in Schedule B hereto), and multiplying this product by the
NAV of the Investor Class of such Series, determined in the manner set forth in
such Series's then-current Investor Class Prospectus, as of the close of
business on the last preceding business day on which such Series's Investor
Class NAV was determined.
4. OWNERSHIP OF RECORDS. All records required to be maintained and
preserved by each Series pursuant to the provisions or rules or regulations of
the Securities and Exchange Commission ("SEC") under Section 31(a) of the 1940
Act and maintained and preserved by the Administrator on behalf of such Series
are the property of such Series and shall be surrendered by the Administrator
promptly on request by the Series; PROVIDED, that the Administrator may at its
own expense make and retain copies of any such records.
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5. REPORTS TO ADMINISTRATOR. Each Series shall furnish or otherwise make
available to the Administrator such copies of that Series's Investor Class
Prospectus, SAI, financial statements, proxy statements, reports, and other
information relating to its business and affairs as the Administrator may, at
any time or from time to time, reasonably require in order to discharge its
obligations under this Agreement.
6. REPORTS TO EACH SERIES. The Administrator shall prepare and furnish to
each Series such reports, statistical data and other information in such form
and at such intervals as such Series may reasonably request.
7. OWNERSHIP OF SOFTWARE AND RELATED MATERIALS. All computer programs,
written procedures and similar items developed or acquired and used by the
Administrator in performing its obligations under this Agreement shall be the
property of the Administrator, and no Series will acquire any ownership interest
therein or property rights with respect thereto.
8. CONFIDENTIALITY. The Administrator agrees, on its own behalf and on
behalf of its employees, agents and contractors, to keep confidential any and
all records maintained and other information obtained hereunder which relates to
any Series or to any of a Series's former, current or prospective shareholders,
EXCEPT that the Administrator may deliver records or divulge information (a)
when requested to do so by duly constituted authorities after prior notification
to and approval in writing by such Series (which approval will not be
unreasonably withheld and may not be withheld by such Series where the
Administrator advises such Series that it may be exposed to civil or criminal
contempt proceedings or other penalties for failure to comply with such request)
or (b) whenever requested in writing to do so by such Series.
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9. THE ADMINISTRATOR'S ACTIONS IN RELIANCE ON SERIES' INSTRUCTIONS,
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LEGAL OPINIONS, ETC.; SERIES' COMPLIANCE WITH LAWS.
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9.1 The Administrator may at any time apply to an officer of the
Trust for instructions, and may consult with legal counsel for a Series or with
the Administrator's own legal counsel, in respect of any matter arising in
connection with this Agreement; and the Administrator shall not be liable for
any action taken or omitted to be taken in good faith in and with due care in
accordance with such instructions or with the advice or opinion of such legal
counsel. The Administrator shall be protected in acting upon any such
instructions, advice or opinion and upon any other paper or document delivered
by a Series or such legal counsel which the Administrator believes to be genuine
and to have been signed by the proper person or persons, and the Administrator
shall not be held to have notice of any change of status or authority of any
officer or representative of the Trust, until receipt of written notice thereof
from the Series.
9.2 Except as otherwise provided in this Agreement or in any
separate agreement between the parties and except for the accuracy of
information furnished to each Series by the Administrator, each Series assumes
full responsibility for the preparation, contents, filing and distribution of
its Investor Class Prospectus and SAI, and full responsibility for other
documents or actions required for compliance with all applicable requirements of
the 1940 Act, the Securities Exchange Act of 1934, the 1933 Act, and any other
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applicable laws, rules and regulations of governmental authorities having
jurisdiction over such Series.
10. SERVICES TO OTHER CLIENTS. Nothing herein contained shall limit the
freedom of the Administrator or any affiliated person of the Administrator to
render administrative or shareholder services to other investment companies, to
act as administrator to other persons, firms, or corporations, or to engage in
other business activities.
11. LIMITATION OF LIABILITY REGARDING THE TRUST. The Administrator shall
look only to the assets of each Series for performance of this Agreement by the
Trust on behalf of such Series, and neither the Trustees of the Trust
("Trustees") nor any of the Trust's officers, employees or agents, whether past,
present or future shall be personally liable therefor.
12. INDEMNIFICATION BY SERIES. Each Series shall indemnify the
Administrator and hold it harmless from and against any and all losses, damages
and expenses, including reasonable attorneys' fees and expenses, incurred by the
Administrator that result from: (i) any claim, action, suit or proceeding in
connection with the Administrator's entry into or performance of this Agreement
with respect to such Series; or (ii) any action taken or omission to act
committed by the Administrator in the performance of its obligations hereunder
with respect to such Series; or (iii) any action of the Administrator upon
instructions believed in good faith by it to have been executed by a duly
authorized officer or representative of the Trust with respect to such Series;
PROVIDED, that the Administrator shall not be entitled to such indemnification
in respect of actions or omissions constituting negligence or misconduct on the
part of the Administrator or its employees, agents or contractors. Before
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confessing any claim against it which may be subject to indemnification by a
Series hereunder, the Administrator shall give such Series reasonable
opportunity to defend against such claim in its own name or in the name of the
Administrator.
13. INDEMNIFICATION BY THE ADMINISTRATOR. The Administrator shall
indemnify each Series and hold it harmless from and against any and all losses,
damages and expenses, including reasonable attorneys' fees and expenses,
incurred by such Series which result from: (i) the Administrator's failure to
comply with the terms of this Agreement with respect to such Series; or (ii) the
Administrator's lack of good faith in performing its obligations hereunder with
respect to such Series; or (iii) the Administrator's negligence or misconduct or
its employees, agents or contractors in connection herewith with respect to such
Series. A Series shall not be entitled to such indemnification in respect of
actions or omissions constituting negligence or misconduct on the part of that
Series or its employees, agents or contractors other than the Administrator
unless such negligence or misconduct results from or is accompanied by
negligence or misconduct on the part of the Administrator, any affiliated person
of the Administrator, or any affiliated person of an affiliated person of the
Administrator. Before confessing any claim against it which may be subject to
indemnification hereunder, a Series shall give the Administrator reasonable
opportunity to defend against such claim in its own name or in the name of the
Trust on behalf of such Series.
14. EFFECT OF AGREEMENT. Nothing herein contained shall be deemed to
require the Trust or any Series to take any action contrary to the Trust
Instrument or By-laws of the Trust or any applicable law, regulation or order to
which it is subject or by which it is bound, or to relieve or deprive the
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Trustees of their responsibility for and control of the conduct of the business
and affairs of the Series or Trust.
15. TERM OF AGREEMENT. The term of this Agreement shall begin on December
16, 2000 with respect to each Series and, unless sooner terminated as
hereinafter provided, this Agreement shall remain in effect through June 30,
2001. Thereafter, this Agreement shall continue in effect with respect to each
Series from year to year, subject to the termination provisions and all other
terms and conditions hereof; PROVIDED, such continuance with respect to a Series
is approved at least annually by vote or written consent of the Trustees,
including a majority of the Trustees who are not interested persons of either
party hereto ("Disinterested Trustees"); and PROVIDED FURTHER, that the
Administrator shall not have notified a Series in writing at least sixty days
prior to the first expiration date hereof or at least sixty days prior to any
expiration date in any year thereafter that it does not desire such
continuation. The Administrator shall furnish any Series, promptly upon its
request, such information as may reasonably be necessary to evaluate the terms
of this Agreement or any extension, renewal or amendment thereof.
16. AMENDMENT OR ASSIGNMENT OF AGREEMENT. Any amendment to this Agreement
shall be in writing signed by the parties hereto; PROVIDED, that no such
amendment shall be effective unless authorized on behalf of any Series (i) by
resolution of the Trustees, including the vote or written consent of a majority
of the Disinterested Trustees, or (ii) by vote of a majority of the outstanding
voting securities of the Investor Class of such Series. This Agreement shall
terminate automatically and immediately in the event of its assignment;
provided, that with the consent of a Series, the Administrator may subcontract
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to another person any of its responsibilities with respect to such Series.
17. TERMINATION OF AGREEMENT. This Agreement may be terminated at any
time by either party hereto, without the payment of any penalty, upon at least
sixty days' prior written notice to the other party; PROVIDED, that in the case
of termination by any Series, such action shall have been authorized (i) by
resolution of the Trustees, including the vote or written consent of the
Disinterested Trustees, or (ii) by vote of a majority of the outstanding voting
securities of the Investor Class of such Series.
18. NAME OF A SERIES. Each Series hereby agrees that if the Administrator
shall at any time for any reason cease to serve as administrator to a Series,
such Series shall, if and when requested by the Administrator, eliminate from
such Series's name the name "Xxxxxxxxx Xxxxxx" and thereafter refrain from using
the name "Xxxxxxxxx Xxxxxx" or the initials "NB" in connection with its business
or activities, and the foregoing agreement of each Series shall survive any
termination of this Agreement and any extension or renewal thereof.
19. INTERPRETATION AND DEFINITION OF TERMS. Any question of
interpretation of any term or provision of this 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 1940 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
SEC validly issued pursuant to the 1940 Act. Specifically, the terms "vote of a
majority of the outstanding voting securities," "interested persons,"
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"assignment" and "affiliated person," as used in this Agreement shall have the
meanings assigned to them by Section 2(a) of the 1940 Act. In addition, when the
effect of a requirement of the 1940 Act reflected in any provision of this
Agreement is modified, interpreted or relaxed by a rule, regulation or order of
the SEC, whether of special or of general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
20. CHOICE OF LAW. This Agreement is made and to be principally performed
in the State of New York, and except insofar as the Act or other federal laws
and regulations may be controlling, this Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New
York.
21. CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
22. EXECUTION IN COUNTERPARTS. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed by their respective officers thereunto duly authorized and their
respective seals to be hereunto affixed, as of the day and year first above
written.
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XXXXXXXXX XXXXXX EQUITY FUNDS
By:
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Title:
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XXXXXXXXX XXXXXX MANAGEMENT INC.
By:
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Title:
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