EXHIBIT 99.k(2)
SUB-ADMINISTRATION AGREEMENT
Agreement dated as of ________, 2000 by and between State
Street Bank and Trust Company, a Massachusetts trust company (the
"Sub-Administrator"), and meVC Advisers, Inc. (the "Adviser") on behalf of meVC
Xxxxxx Jurvetson Fund I, Inc. (the "Company").
WHEREAS, the Company is registered as an closed-end,
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, the Company has retained the Adviser to furnish
advisory and administrative services to the Company; and
WHEREAS, the Adviser desires to retain the Sub-Administrator
to furnish certain administrative services to the Company, and the
Sub-Administrator is willing to furnish such services, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Adviser hereby appoints the Sub-Administrator to act as
sub-administrator with respect to the Company for purposes of providing certain
sub-administrative services for the period and on the terms set forth in this
Agreement. The Sub-Administrator accepts such appointment and agrees to render
the services stated herein.
The Company will initially consist of the portfolio(s) and/or
class(es) of shares (each an "Investment Fund") listed in Schedule A to this
Agreement. In the event that the Company establishes one or more additional
Investment Funds with respect to which the Adviser wishes to retain the
Sub-Administrator to act as sub-administrator hereunder, the Adviser shall
notify the Sub-Administrator in writing. Upon written acceptance by the
Administrator, such Investment Fund shall become subject to the provisions of
this Agreement to the same extent as the existing Investment Funds, except to
the extent that such provisions (including those relating to the compensation
and expenses payable by the Adviser) may be modified with respect to each
additional Investment Fund in writing by the Adviser and the Sub-Administrator
at the time of the addition of the Investment Fund.
2. DELIVERY OF DOCUMENTS
The Adviser will promptly deliver to the Sub-Administrator
copies of each of the following documents and all future amendments and
supplements, if any:
a. The Company's Articles of Incorporation and by-laws;
b. The Company's currently effective registration
statement under the Securities Act of 1933, as
amended (the "1933 Act"), and the 1940 Act and the
Company's Prospectus(es) and Statement(s) of
Additional Information relating to all Investment
Funds and all amendments and supplements thereto as
in effect from time to time;
c. Certified copies of the resolutions of the Board of
Directors of the Adviser (the "Board") authorizing
(1) the Adviser to enter into this Agreement and (2)
certain individuals on behalf of the Company to (a)
give instructions to the Sub-Administrator pursuant
to this Agreement and (b) sign checks and pay
expenses;
d. A copy of the investment advisory agreement between
the Adviser and the Company authorizing the Adviser
to enter this Agreement; and
e. Such other certificates, documents or opinions which
the Sub-Administrator may, in its reasonable
discretion, deem necessary or appropriate in the
proper performance of its duties.
3. REPRESENTATIONS AND WARRANTIES OF THE SUB-ADMINISTRATOR
The Sub-Administrator represents and warrants to the Adviser
that:
a. It is a Massachusetts trust company, duly organized
and existing under the laws of The Commonwealth of
Massachusetts;
b. It has the corporate power and authority to carry on
its business in The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken
to authorize it to enter into and perform this
Agreement;
d. No legal or administrative proceedings have been
instituted or threatened which would impair the
Sub-Administrator's ability to perform its duties and
obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a
material breach or be in material conflict with any
other agreement or obligation of the
Sub-Administrator or any law or regulation applicable
to it.
4. REPRESENTATIONS AND WARRANTIES OF THE ADVISER
The Adviser represents and warrants to the Administrator that:
a. It is a corporation, duly organized, existing and in
good standing under the Laws of the State of
_________________;
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b. The Company is a business development company, duly
organized, existing and in good standing under the
laws of the State of Delaware;
c. It has the corporate power and authority under
applicable laws and by its charter and by-laws to
enter into and perform this Agreement;
d. All requisite proceedings have been taken to
authorize it to enter into and perform this
Agreement;
e. The Company is an investment company properly
registered under the 1940 Act;
f. A registration statement under the 1933 Act and the
1940 Act has been filed by the Company and will be
effective and remain effective during the term of
this Agreement. The Adviser also warrants to the
Administrator that as of the effective date of this
Agreement, all necessary filings under the securities
laws of the states in which the Company offers or
sells its shares have been made;
f. No legal or administrative proceedings have been
instituted or threatened which would impair the
Adviser's ability to perform its duties and
obligations under this Agreement;
g. Its entrance into this Agreement will not cause a
material breach or be in material conflict with any
other agreement or obligation of the Adviser or any
law or regulation applicable to it; and
h. As of the close of business on the date of this
Agreement, the Company is authorized to issue shares
of capital stock, and it will initially offer shares,
in the authorized amounts as set forth in Schedule A
to this Agreement.
5. SUB-ADMINISTRATION SERVICES
The Sub-Administrator shall provide the following services, in
each case, subject to the control, supervision and direction of the Adviser and
the Company and the review and comment by the Company's auditors and legal
counsel and in accordance with procedures which may be established from time to
time between the Adviser and the Sub-Administrator:
a. Oversee the determination and publication of the
Company's net asset value in accordance with the
Company's policy as adopted from time to time by the
Board;
b. Oversee the maintenance by the Company's custodian of
certain books and records of the Company as required
under Rule 31a-1(b) of the 1940 Act;
c. Prepare the Company's federal, state and local income
tax returns for review by the Company's independent
accountants and filing by the Company's treasurer;
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d. Review calculation, submit for approval by officers
of the Company and arrange for payment of the
Company's expenses;
e. Prepare for review and approval by officers of the
Company financial information for the Company's
semi-annual and annual reports, proxy statements and
other communications required or otherwise to be sent
to Company shareholders, and arrange for the printing
and dissemination of such reports and communications
to shareholders;
f. Prepare for review by an officer of and legal counsel
for the Company the Company's periodic financial
reports required to be filed with the Securities and
Exchange Commission ("SEC") as parts of Form 10K and
10Q. Other than the financial statements, the Adviser
is responsible for preparing Forms 10K and 10Q.
g. Prepare reports relating to the business and affairs
of the Company as may be mutually agreed upon and not
otherwise prepared by the Company's investment
adviser, custodian, legal counsel or independent
accountants;
h. Make such reports and recommendations to the Board
concerning the performance of the independent
accountants as the Board may reasonably request;
i. Make such reports and recommendations to the Board
concerning the performance and fees of the Company's
custodian and transfer and dividend disbursing agent
("Transfer Agent") as the Board may reasonably
request or deems appropriate;
j. Oversee and review calculations of fees paid to the
Company's investment adviser, custodian and Transfer
Agent;
k. Consult with the Company's officers, independent
accountants, legal counsel, custodian and Transfer
Agent in establishing the accounting policies of the
Company;
l. Respond to, or refer to the Company's officers or
Transfer Agent, shareholder inquiries relating to the
Company;
m. Provide periodic testing of portfolios to assist the
Company's investment adviser in complying with
Internal Revenue Code mandatory qualification
requirements, the requirements of the 1940 Act and
Company prospectus limitations as may be mutually
agreed upon;
n. Review and provide assistance on shareholder
communications;
o. Maintain general corporate calendar;
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p. Maintain copies of the Company's charter and by-laws;
q. File annual and semi-annual shareholder reports with
the appropriate regulatory agencies; review text of
"President's letters" to shareholders and
"Management's Discussion of Company Performance"
(which shall also be subject to review by the
Company's legal counsel);
r. Organize, attend and prepare minutes of shareholder
meetings;
s. Provide consultation on regulatory matters relating
to portfolio management, Company operations and any
potential changes in the Company's investment
policies, operations or structure; act as liaison to
legal counsel to the Company and, where applicable,
to legal counsel to the Company's independent Board
members;
t. Maintain continuing awareness of significant emerging
regulatory and legislative developments which may
affect the Company, update the Board and the
investment adviser on those developments and provide
related planning assistance where requested or
appropriate;
u. Develop or assist in developing guidelines and
procedures to improve overall compliance by the
Company and its various agents;
v. Counsel and assist the Company in the handling of
routine regulatory examinations and work closely with
the Company's legal counsel in response to any
non-routine regulatory matters;
w. Review implementation of any dividend reinvestment
program authorized by the Board;
Subject to review and comment by the Company's legal counsel:
x. Prepare and file with the SEC amendments to the
Company's registration statement, including updating
the Prospectus and Statement of Additional
Information, where applicable;
y. Prepare and file with the SEC proxy statements;
provide consultation on proxy solicitation matters;
z. Prepare agenda and background materials for Board
meetings, make presentations where appropriate,
prepare minutes and follow-up on matters raised at
Board meetings; and
aa. Prepare and file with the SEC Rule 24f-2 notices.
The Sub-Administrator shall provide the office facilities and the personnel
required by it to perform the services contemplated herein.
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6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Sub-Administrator shall receive from the Adviser such
compensation for the Sub-Administrator's services provided pursuant to this
Agreement as may be agreed to from time to time in a written fee schedule
approved by the parties and initially set forth in the Fee Schedule to this
Agreement. The fees are accrued daily and billed monthly and shall be due and
payable upon receipt of the invoice. Upon the termination of this Agreement
before the end of any month, the fee for the part of the month before such
termination shall be prorated according to the proportion which such part bears
to the full monthly period and shall be payable upon the date of termination of
this Agreement. In addition, the Adviser shall reimburse the Sub-Administrator
for its out-of-pocket costs incurred in connection with this Agreement.
The Adviser agrees promptly to reimburse the Sub-Administrator
for any equipment and supplies specially ordered by or for the Company through
the Sub-Administrator and for any other expenses not contemplated by this
Agreement that the Sub-Administrator may incur on the Company's behalf at the
Company's request or with the Company's consent.
In connection herewith, the Company hereby guaranties full
payment and punctual performance and fulfillment to the Sub-Administrator of all
liabilities, obligations and undertakings of the Adviser to the
Sub-Administrator, whether direct or indirect, absolute or contingent, due or to
become due, now existing of hereafter arising or acquired, under any fee
schedule regarding any service provided by the Sub-Administrator for the benefit
of the Company or any cost, expense disbursement relative thereto, and all
present or future agreements arising from, or relative to, the subject matter
thereof. The guaranty contained herein shall survive the termination of this
Agreement.
The Company will bear all expenses that are incurred in its
operation and not specifically assumed by the Sub-Administrator. Expenses to be
borne by the Company, include, but are not limited to: organizational expenses;
cost of services of independent accountants and outside legal and tax counsel
(including such counsel's review of the Company's registration statement, proxy
materials, federal and state tax qualification as a regulated investment company
and other reports and materials prepared by the Administrator under this
Agreement); cost of any services contracted for by the Company directly from
parties other than the Administrator; cost of trading operations and brokerage
fees, commissions and transfer taxes in connection with the purchase and sale of
securities for the Company; investment advisory fees; taxes, insurance premiums
and other fees and expenses applicable to its operation; costs incidental to any
meetings of shareholders including, but not limited to, legal and accounting
fees, proxy filing fees and the costs of preparation, printing and mailing of
any proxy materials; costs incidental to Board meetings, including fees and
expenses of Board members; the salary and expenses of any officer,
director\trustee or employee of the Company; costs incidental to the
preparation, printing and distribution of the Company's registration statements
and any amendments thereto and shareholder reports; cost of typesetting and
printing of prospectuses; cost of preparation and filing of the Company's tax
returns, Form N-2 and Form N-SAR, and all notices, registrations and amendments
associated with applicable federal and state tax and securities laws; all
applicable registration fees and filing fees required under federal and state
securities laws; fidelity bond and directors' and officers' liability insurance;
and cost of independent pricing services used in computing the Company's net
asset value.
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The Sub-Administrator is authorized to and may employ or associate with
such person or persons as the Sub-Administrator may deem desirable to assist it
in performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by the Sub-Administrator
and that the Sub-Administrator shall be as fully responsible to the Adviser for
the acts and omissions of any such person or persons as it is for its own acts
and omissions.
7. INSTRUCTIONS AND ADVICE
At any time, the Sub-Administrator may apply to any officer of
the Company for instructions and may consult with its own legal counsel or
outside counsel for the Company or the independent accountants for the Company
at the expense of the Adviser, with respect to any matter arising in connection
with the services to be performed by the Sub-Administrator under this Agreement.
The Sub-Administrator shall not be liable, and shall be indemnified by the
Adviser, for any action taken or omitted by it in good faith in reliance upon
any such instructions or advice or upon any paper or document believed by it to
be genuine and to have been signed by the proper person or persons. The
Sub-Administrator shall not be held to have notice of any change of authority of
any person until receipt of written notice thereof from the Adviser. Nothing in
this paragraph shall be construed as imposing upon the Sub-Administrator any
obligation to seek such instructions or advice, or to act in accordance with
such advice when received.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Sub-Administrator shall be responsible for the performance
of only such duties as are set forth in this Agreement and, except as otherwise
provided under Section 6, shall have no responsibility for the actions or
activities of any other party, including other service providers. The
Sub-Administrator shall have no liability for any error of judgment or mistake
of law or for any loss or damage resulting from the performance or
nonperformance of its duties hereunder unless solely caused by or resulting from
the gross negligence or willful misconduct of the Sub-Administrator, its
officers or employees. The Sub-Administrator shall not be liable for any
special, indirect, incidental, or consequential damages of any kind whatsoever
(including, without limitation, attorneys' fees) under any provision of this
Agreement or for any such damages arising out of any act or failure to act
hereunder. In any event, the Sub-Administrator's liability under this Agreement
shall be limited to its total annual compensation earned and fees paid hereunder
during the preceding twelve months for any liability or loss suffered by the
Company including, but not limited to, any liability relating to qualification
of the Company as a regulated investment company or any liability relating to
the Company's compliance with any federal or state tax or securities statute,
regulation or ruling.
The Sub-Administrator shall not be responsible or liable for
any failure or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
control, including without limitation, work stoppage, power or other mechanical
failure, computer virus, natural disaster, governmental action or communication
disruption.
The Adviser and the Company shall indemnify and hold the
Sub-Administrator harmless from all loss, cost, damage and expense, including
reasonable fees and expenses for counsel, incurred by the Sub-Administrator
resulting from any claim, demand, action or suit in connection with the
Sub-Administrator's acceptance of this Agreement, any action or omission by it
in the performance of its duties hereunder, or as a result of acting upon any
instructions reasonably believed by it to have been duly
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authorized by the Company, provided that this indemnification shall not apply to
actions or omissions of the Sub-Administrator, its officers or employees in
cases of its or their own gross negligence or willful misconduct.
The indemnification contained herein shall survive the
termination of this Agreement.
9. CONFIDENTIALITY
The Sub-Administrator agrees that, except as otherwise
required by law or in connection with any required disclosure to a banking or
other regulatory authority, it will keep confidential all records and
information in its possession relating to the Company or its shareholders or
shareholder accounts and will not disclose the same to any person except at the
request or with the written consent of the Company.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
The Company assumes full responsibility for complying with all
securities, tax, commodities and other laws, rules and regulations applicable to
it.
In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Sub-Administrator agrees that all records which it maintains for
the Company shall at all times remain the property of the Company, shall be
readily accessible during normal business hours, and shall be promptly
surrendered upon the termination of the Agreement or otherwise on written
request. The Sub-Administrator further agrees that all records which it
maintains for the Company pursuant to Rule 31a-1 under the 1940 Act will be
preserved for the periods prescribed by Rule 31a-2 under the 1940 Act unless any
such records are earlier surrendered as provided above. Records shall be
surrendered in usable machine-readable form.
11. SERVICES NOT EXCLUSIVE
The services of the Sub-Administrator to the Company are not
to be deemed exclusive, and the Sub-Administrator shall be free to render
similar services to others. The Sub-Administrator shall be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein or
authorized by the Company from time to time, have no authority to act or
represent the Company in any way or otherwise be deemed an agent of the Company.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective on the date of its
execution and shall remain in full force and effect for a period of two years
from the effective date and shall automatically continue in full force and
effect after such initial term unless either party terminates this Agreement by
written notice to the other party at least sixty (60) days prior to the
expiration of the initial term. Either party may terminate this Agreement at any
time after the initial term upon at least sixty (60) days' prior written notice
to the other party. Termination of this Agreement with respect to any given
Investment Fund shall in no way affect the continued validity of this Agreement
with respect to any other Investment Fund. Upon termination of this Agreement,
the Adviser shall pay to the Sub-Administrator such compensation and any
reimbursable expenses as may be due under the terms hereof as of the date of
such termination,
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including reasonable out-of-pocket expenses associated with such termination.
This Agreement may be modified or amended from time to time by mutual written
agreement of the parties hereto.
13. NOTICES
Any notice or other communication authorized or required by
this Agreement to be given to either party shall be in writing and deemed to
have been given when delivered in person or by confirmed facsimile, or posted
by certified mail, return receipt requested, to the following address (or
such other address as a party may specify by written notice to the other): if
to the Company:___________ meVC Xxxxxx Xxxxxx Jurvetson Fund I, Inc., 000
Xxxxxx Xx., Xxxxx 000, Xxx Xxxxxxxxx, XX 00000; Attn:__________ ,
fax:__________ ; if to the Adviser: meVC Advisers, Inc., Attn:__________ ,
fax:__________ ; if to the Administrator: State Street Bank and Trust
Company, 0 Xxxxxx xx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Fund
Administration Legal Department, fax: 000-000-0000.
14. NON-ASSIGNABILITY
This Agreement shall not be assigned by either party hereto
without the prior consent in writing of the other party, except that the
Sub-Administrator may assign this Agreement to a successor of all or a
substantial portion of its business, or to a party controlling, controlled by or
under common control with the Sub-Administrator.
15. SUCCESSORS
This Agreement shall be binding on and shall inure to the
benefit of the Company and the Sub-Administrator and their respective successors
and permitted assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
previous representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. WAIVER
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
18. SEVERABILITY
If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
19. GOVERNING LAW
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This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
20. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
all/each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
meVC ADVISERS, INC.
By: __________________________________
Name: __________________________________
Title: __________________________________
meVC XXXXXX XXXXXX JURVETSON FUND I, INC.
By: __________________________________
Name: __________________________________
Title: __________________________________
STATE STREET BANK AND TRUST COMPANY
By: __________________________________
Name: Xxxxxxxx X. Xxxxxxx
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Title: Senior Vice President
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SUB-ADMINISTRATION AGREEMENT
SCHEDULE A
LISTING OF INVESTMENT FUNDS AND AUTHORIZED SHARES
Investment Fund Authorized Shares
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