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ADMINISTRATION AGREEMENT
This Administration Agreement is made this [ _________ ]th day of
[_______________________], 2005, by and between BLACK PEARL FUNDS, a Delaware
statutory trust (the "Trust"), and FIRSTHAND CAPITAL MANAGEMENT, INC., a
California corporation (the "Administrator").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end management investment
company and is to be registered as such under the Investment Company Act of
1940, as amended (the "Act"); and
WHEREAS, the Administrator is engaged in the business of rendering
administrative and supervisory services to investment companies; and
WHEREAS, the Trust desires to continue to retain the Administrator to render
supervisory and corporate administrative services to the series of the Trust
listed on Schedule A attached hereto (each, a "Fund" and collectively, the
"Funds") in the manner and on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the terms and provisions
hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT OF THE ADMINISTRATOR. The Trust hereby employs the Administrator
to administer the affairs of the Funds subject to the direction of the Board of
Trustees and the officers of the Trust, for the period and on the terms
hereinafter set forth. The Administrator hereby accepts such employment and
agrees during such period to render the services and to assume the obligations
herein set forth for the compensation herein provided. The Administrator shall
for all purposes herein be deemed to be an independent contractor and, except as
expressly provided or authorized (whether herein or otherwise), shall have no
authority to act for or represent the Funds in any way or otherwise be deemed an
agent of the Funds. Absent written notification to the contrary by the Trust or
the Administrator, each new investment portfolio established in the future by
the Trust shall automatically become a "Fund" for all purposes hereunder as if
listed on Schedule A.
2. OBLIGATIONS OF THE ADMINISTRATOR. The Administrator, at its expense, shall
supply the Board of Trustees and officers of the Trust with all statistical
information and reports reasonably required by it and reasonably available to
the Administrator and furnish the Funds with office facilities, including space,
furniture and equipment and all personnel reasonably necessary for the operation
of each Fund. The Administrator shall oversee the maintenance of all books and
records with respect to the Funds' securities transactions and each Fund's book
of account in accordance with all applicable federal and state laws and
regulations. In compliance with the requirements of Rule 31a-3 under the Act,
the Administrator hereby agrees that any records that it maintains for a Fund
are the property of the Fund and further agrees to surrender promptly to a Fund
its records upon the Fund's request. The Administrator further agrees to arrange
for the
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preservation of the records required to be maintained by Rule 31a-1 under the
Act for the periods prescribed by Rule 31a-2 under the Act.
3. EXPENSES OF THE FUNDS. The Administrator assumes and shall pay for
maintaining its staff and personnel, and shall at its own expense provide the
equipment, office space and facilities necessary to perform its obligations
under this Agreement. In addition, the Administrator assumes and shall pay all
other expenses of each Fund (excluding independent trustees' compensation,
brokerage and commission expenses, expenses relating to short-selling (including
dividend payments), fees payable under Rule 12b-1 plans, if any, and shareholder
servicing plans, if any, litigation costs and any extraordinary and
non-recurring expenses). Such other expenses include, without limitation:
insurance, taxes, expenses for legal and auditing services, costs of printing
proxies, stock certificates and prospectuses, the insurance required by Section
17(g) of the Act, charges of a custodian for safekeeping of the Fund's
securities, Securities and Exchange Commission fees, expense of registering the
shares of the Fund under Federal and state securities laws, expenses (but not
compensation) of trustees who are not interested persons of the Fund, accounting
and pricing costs (including daily calculation of net asset value) and interest.
4. COMPENSATION. As compensation for the services rendered, the facilities
furnished and the expenses assumed by the Administrator, each Fund shall pay to
the Administrator at the end of each calendar month a fee at the annual rate of
..45% of the Fund's average daily net assets up to $200 million, .40% of such
assets from $200 million to $500 million, .35% of such assets from $500 million
to $1 billion and .30% of such assets in excess of $1 billion, as determined and
computed in accordance with the description of the method of determination of
net asset value contained in each Fund's Prospectus and Statement of Additional
Information. The compensation payable to the Administrator under the immediately
preceding sentence in each year shall be reduced by the amount of compensation
paid by the Trust during such year to the independent trustees for their
services.
5. ACTIVITIES OF THE ADMINISTRATOR. The services of the Administrator to the
Funds hereunder are not to be deemed exclusive and the Administrator shall be
free to render similar services to others. Subject to, and in accordance with
the Declaration of Trust and By-Laws of the Trust and Section 10(a) of the Act,
it is understood that trustees, officers, agents and beneficial holders of the
Trust and the Funds are or may be "interested persons" (as defined in the Act)
of the Administrator or its affiliates, and that directors, officers, agents or
shareholders of the Administrator or its affiliates are or may be "interested
persons" of the Trust or the Funds as beneficial holders or otherwise.
6. LIABILITIES OF THE ADMINISTRATOR. In the absence of willful misfeasance, bad
faith, gross negligence or reckless disregard of obligations or duties hereunder
on the part of the Administrator, the Administrator shall not be liable to a
Fund or to any beneficial holder of a Fund for any act or omission in the course
of, or in connection with, rendering services hereunder or for any losses that
may be sustained in the purchase, holding or sale of any security.
7. RENEWAL. The term of this Agreement shall commence on the date hereof and
shall continue with respect to a Fund in effect until the date ending one year
from the date hereof and is renewable thereafter for successive one year periods
if such continuance is approved at least annually by (i) the Trust's Board of
Trustees, or by a vote of the holders of a majority of the
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outstanding voting securities of such Fund, and (ii) a majority of the trustees
who are not parties to the Agreement or "interested persons" (as defined in the
Act) of any such party cast in person at a meeting called for the purpose of
voting on such approval.
8. TERMINATION. This Agreement may be terminated at any time with respect to a
Fund (i) without the payment of any penalty either by vote of the Board of
Trustees of the Trust, or (ii) by vote of a majority of the outstanding voting
securities of such Fund, on 60 days' written notice to the Administrator and by
the Administrator on 60 days' written notice to the Fund.
9. AMENDMENTS. This Agreement may be amended by the parties only if such
amendment is specifically approved by (i) the Board of Trustees of the Trust, or
by a vote of the holders of a majority of the outstanding voting securities of
the affected Fund or Funds, and (ii) a majority of those trustees of the Trust
who are not parties to this Agreement or interested persons of any such party
cast in person at a meeting called for the purpose of voting on such approval.
10. NOTICES. Any and all notices or other communications required or permitted
under this Agreement shall be in writing and shall be deemed sufficient when
mailed by United States certified mail, return receipt requested, or delivered
in person against receipt to the party to whom it is to be given, at the address
of such party set forth below: If to the Administrator: Firsthand Capital
Management, Inc. 000 Xxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxx, XX 00000. If to the
Trust: Firsthand Funds, 000 Xxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxx, XX 00000 or to
such other address as the party shall have furnished in writing in accordance
with the provisions of this Section.
11. SEVERABILITY. If any provision of this Agreement is invalid, illegal or
unenforceable, the balance of this Agreement shall remain in full force and
effect and this Agreement shall be construed in all respects as if such invalid,
illegal or unenforceable provision were omitted.
12. HEADINGS. Any paragraph headings in this Agreement are for convenience of
reference only, and shall be given no effect in the construction and
interpretation of this Agreement or any provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the date first written above.
BLACK PEARL FUNDS FIRSTHAND CAPITAL MANAGEMENT, INC.
By: By:
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Xxxxx Xxxxxx, President Xxxxx Xxxxxx, President
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ADMINISTRATION AGREEMENT
SCHEDULE A
List of Funds
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Black Pearl Focus Fund; and
Black Xxxxx Xxxx Short Fund
