AGREEMENT
AGREEMENT made this 3rd day of December, 1996 by and between Xxxxx Funds,
Inc., a Minnesota corporation (hereinafter called the "Company"), with respect
to Xxxxx Opportunity Fund, a series of the Company (hereinafter the "Opportunity
Fund"), and Princeton Administrators, L.P., a Delaware limited partnership
(hereinafter called the "Administrator").
W I T N E S S E T H
WHEREAS, the parties are parties to that certain Administration
Agreement dated December 4, 1995, as modified by an Addendum dated December
4, 1995 and a Second Addendum dated October 10, 1996 (collectively, the
"Agreement"); and
WHEREAS, the parties intend that the provisions of the Agreement apply
with respect to the Opportunity Fund.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the Company and the Administrator agree as
follows:
1. The provisions of the Agreement shall apply in all respects to
the Opportunity Fund, and the Opportunity Fund shall be considered a Fund under
the Agreement.
2. The Agreement shall continue to be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXX FUNDS, INC.
By:
-----------------------------
Title:
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc., General
Partner
By:
---------------------------------
Title:
ADMINISTRATION AGREEMENT
AGREEMENT made this 4th day of December, 1995 by and between Xxxxx
Funds, Inc., a Minnesota corporation (hereinafter called the "Company"), with
respect to Xxxxx U.S. Emerging Growth Fund and any other series of the Company
(each, a "Fund"), and Princeton Administrators, L.P., a Delaware limited
partnership (hereinafter called the "Administrator");
W I T N E S S E T H
WHEREAS, the Company and Xxxxx Associates, Inc. (the "Investment
Adviser") are entering into an Investment Advisory Agreement (the "Investment
Agreement") pursuant to which the Investment Adviser will agree to act as
investment adviser for, and to manage the affairs, business and investment of
the assets of each Fund; and
WHEREAS, the Company desires to retain the Administrator to render
certain administrative services for the Company in the manner and on the terms
and conditions hereafter set forth; and
WHEREAS, the Administrator desires to be retained to perform such
services on said terms and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the Company and the Administrator agree as
follows:
1. DUTIES OF THE ADMINISTRATOR. The Company hereby retains the
Administrator to act as administrator of the Company, subject to the supervision
and direction of the Board of Directors of the Company, as hereinafter set
forth. The Administrator shall perform or arrange for the performance of the
following administrative and clerical services: (i) maintain and keep certain
books and records of the Company and each Fund; (ii) prepare or review and,
subject to approval by the Company, file certain reports and other documents
required by U.S.
Federal, state (subject to and contingent upon the Company's transfer agent
providing sales and redemption data to the Administrator via an automated data
electronic feed system compatible with the Administrator's system and acceptable
to the Administrator) and other applicable U.S. laws and regulations to maintain
the Company's registration as an open-end investment company; (iii) coordinate
tax related matters; (iv) respond to inquiries from Fund shareholders; (v)
calculate and publish, or arrange for the calculation and publication of, the
net asset value of each Fund's shares; (vi) oversee, and, as the Board may
reasonably request or deem appropriate, make reports and recommendations to the
Board on, the performance of administrative and professional services rendered
to the Company and each Fund by others, including its custodian and any
subcustodian, registrar, transfer agent, dividend disbursing agent and dividend
reinvestment plan agent, as well as accounting, auditing and other services;
(vii) provide the Company with the services of persons competent to perform the
foregoing administrative and clerical functions; (viii) provide the Company with
administrative offices and data processing facilities; (ix) arrange for payment
of the Company's and each Fund's expenses; (x) consult with the Company's
officers, independent accountants, legal counsel, custodian and any sub-
custodian, registrar, transfer agent, and dividend disbursing agent and dividend
reinvestment plan agent in establishing the accounting policies of the Company;
(xi) prepare such financial information and reports as may be required by any
banks from which the Company borrows funds; and (xii) provide such assistance to
the Investment Adviser, the custodian and any sub-custodian, and the Company's
counsel and auditors as generally may be required to carry on properly the
business and operations of the Company and each Fund. The Company agrees to
cause its transfer agent, custodian and the Investment Adviser to deliver, on a
timely basis, such information to the Administrator as may be necessary or
appropriate for the Administrator's performance of its duties and
responsibilities hereunder, including but not limited to, daily records of
transactions, daily valuation of investments in local currency (which may be
based on information provided by a pricing service) as well as the daily
conversion factor in order for the Administrator to price each Fund in United
States dollars, reports of expenses borne by the Company and each Fund, the
Company's management letter to stockholders and such other information necessary
for the Administrator to prepare the
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above referenced reports and filings, and the Administrator shall be entitled to
rely on the accuracy and completeness of such information in performing its
duties hereunder.
2. EXPENSES OF THE ADMINISTRATOR. The Administrator assumes and
shall pay for maintaining the staff and personnel necessary to perform its
obligations under this Agreement, and shall at its own expense, provide office
space, facilities, equipment and necessary personnel which it is obligated to
provide under paragraph 1 hereof, except that the Company shall pay reasonable
travel expenses of persons who perform administrative, clerical and bookkeeping
functions on behalf of the Company. The Company and the Investment Adviser
assume and shall pay or cause to be paid all other expenses of the Company and
each Fund as set forth in the Investment Agreement. The expenses of legal
counsel and accounting experts retained by the Administrator, after consulting
with the Company's counsel and independent auditors, as may be necessary or
appropriate for the Administrator's performance of its duties and
responsibilities under this Agreement are deemed expenses of, and shall be paid
by, the Company.
3. COMPENSATION OF THE ADMINISTRATOR. For the services rendered
to the Company and each Fund by the Administrator pursuant to this Agreement,
the Company shall pay to the Administrator on the first business day of each
calendar month a fee for the previous month at an annual rate equal to the
greater of (i) $125,000 per annum ($10,416.66 per month), or (ii) at an
annual rate equal to 0.20% of the Company's net assets up to and including
U.S. $600 million and 0.175% of the Company's net assets in excess of U.S.
$600 million. For the purpose of determining fees payable to the
Administrator, the net assets of the Company shall mean the value of the
total assets of the Company, minus the sum of the accrued liabilities of the
Company exclusive of capital stock and surplus. The value of the Company's
net assets shall be computed at the times and in the manner specified in the
Company's Registration Statement on Form N-BB 1A, as amended from time to
time (the "Registration Statement"). Compensation by the Company of the
Administrator shall be pro-rated for any partial month of service, according
to the proportion that such period bears to the full monthly period and shall
3
be payable within seven (7) days after the end of the period to which such
compensation relates.
4. LIMITATION OF LIABILITY OF THE ADMINISTRATOR; INDEMNIFICATION.
(a) The Administrator shall not be liable to any person for any
error of judgment or mistake of law or for any loss arising out of any act or
omission by the Administrator in the performance of its duties hereunder;
provided, however, that nothing herein contained shall be construed to protect
the Administrator against any liability to the Company to which the
Administrator shall otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its duties, or by reckless
disregard of its obligations and duties hereunder.
(b) The Administrator may, with respect to questions of law, apply
for and obtain the advice or opinion of legal counsel and, with respect to the
application of generally accepted accounting principles or Federal tax
accounting principles, apply for and obtain the advice or opinion of accounting
experts. The Administrator shall be fully protected with respect to any action
taken or omitted by it in good faith in conformity with such advice or opinion.
(c) The Company agrees to indemnify and hold harmless the
Administrator from and against all charges, claims, expenses (including legal
fees) and liabilities reasonably incurred by the Administrator in connection
with the performance of its duties hereunder, except such as may arise from the
Administrator's willful misfeasance, bad faith, gross negligence in the
performance of its duties or by reckless disregard of its obligations and duties
hereunder. The Company shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification might be
sought hereunder if the Company receives a written affirmation of the
Administrator's good faith belief that the standard of conduct necessary for
indemnification has been met and a written undertaking to reimburse the Company
unless it is subsequently determined that the
4
Administrator is entitled to such indemnification and if the Directors of the
Company determine that the facts then known to them would not preclude
indemnification. In addition, at least one of the following conditions must be
met: (A) the Administrator shall provide a security for this undertaking, (B)
the Company shall be insured against losses arising by reason of any lawful
advances, or (C) a majority of a quorum consisting of Directors of the Company
who are neither "interested persons" of the Company (as defined in Section 2(a)
(19) of the 0000 Xxx) nor parties to the proceeding ("Disinterested Non-Party
Directors") or an independent legal counsel in a written opinion, shall
determine, based on a review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that the Administrator
ultimately will be found entitled to indemnification.
(d) As used in this Paragraph 4, the term "Administrator" shall
include any affiliates of the Administrator performing services for the Company
contemplated hereby and directors, partners, officers, agents and employees of
the Administrator and such affiliates.
5. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator under this Agreement are not to be deemed exclusive, and the
Administrator and any person controlled by or under common control with the
Administrator shall be free to render similar services to others.
6. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
become effective as of the date first above written and shall remain in force
until terminated as provided herein. This Agreement may be terminated at any
time, without the payment of any penalty, by the Company on sixty days' written
notice to the Administrator and by the Administrator on ninety days' written
notice to the Company. This Agreement shall automatically terminate in the
event of its assignment.
7. AMENDMENTS OF THIS AGREEMENT. This Agreement may be amended by
the parties hereto only if such amendment is specifically approved by the Board
of Directors of the
5
Company and such amendment is set forth in a written instrument executed by each
of the parties hereto.
8. GOVERNING LAW. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of New York
as at the time in effect and the applicable provisions of the 1940 Act. To the
extent that the applicable law of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
9. COUNTERPARTS. This Agreement may be executed by the parties
hereto in counterparts and if executed in more than one counterpart, the
separate instruments shall constitute one agreement.
10. NOTICES. Any notice under this Agreement, shall be in writing
and shall be deemed to be received on the earlier of the date actually received
or on the fourth day after the postmark if such notice is mailed first class
postage prepaid. Notice shall be addressed:
(a) if to the Administrator, to: President, Princeton
Administrators, L.P., X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000; or (b)
if to the Fund, to: Chairman, Xxxxx Funds, Inc., 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXX FUNDS, INC.
By:
----------------------------------------
Title:
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc., General
Partner
By:
----------------------------------------
Title:
7
ADDENDUM
TO THE
ADMINISTRATION AGREEMENT
This Addendum to the Administration Agreement dated December 4, 1995
by and between Xxxxx Funds, Inc. (the "Company"), with respect to Xxxxx U.S.
Emerging Growth Fund and any other series of the Company, and Princeton
Administrators, L.P. (the "Administrator"), for the period December 4, 1995
through December 31, 1996 or for such shorter period if the Administration
Agreement is earlier terminated in accordance with its terms (the "Period"),
modifies Section 3 of the Administration Agreement to read in its entirety as
follows:
3. COMPENSATION OF THE ADMINISTRATOR. For the services
rendered to the Company by the Administrator pursuant to this
Agreement, the Company shall pay to the Administrator on the first
business day of each calendar month a fee for the previous month at an
annual rate equal to 0.20% of the Company's net assets up to and
including U.S. $600 million and 0.175% of the Company's net assets
in excess of U.S. $600 million. For the purpose of determining fees
payable to the Administrator, the net assets of the Company shall mean
the value of the total assets of the Company, minus the sum of the
accrued liabilities of the Company exclusive of capital stock and
surplus. The value of the Company's net assets shall be computed at
the times and in the manner specified in the Company's Registration
Statement on Form N-1A, as amended from time to time (the
"Registration Statement"). Compensation by the Company of the
Administrator shall be pro-rated for any partial month of service,
according to the proportion that such period bears to the full monthly
period and shall be payable within seven (7) days after the end of the
period to which such compensation relates.
Following the termination of the Period, this Addendum shall cease to
be of force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as
of the 4th day of December, 1995.
XXXXX FUNDS, INC.
By
---------------------------
Title:
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc.,
General Partner
By
--------------------------
Title:
SECOND ADDENDUM
TO THE
ADMINISTRATION AGREEMENT
This Second Addendum to the Administration Agreement dated December 4,
1995 (the "Administration Agreement") by and between Xxxxx Funds, Inc. (the
"Company"), with respect to Xxxxx U.S. Emerging Growth Fund and any other series
of the Company, and Princeton Administrators, L.P. (the "Administrator"),
modifies the Administration Agreement for the period January 1, 1997 through
December 31, 1997 or for such shorter period if the Administration Agreement is
earlier terminated in accordance with its terms (the "Period"), modifies Section
3 of the Administration Agreement to read in its entirety as follows:
3. COMPENSATION OF THE ADMINISTRATOR. For the services
rendered to the Company by the Administrator pursuant to this
Agreement, the Company shall pay to the Administrator on the first
business day of each calendar month a fee for the previous month at an
annual rate equal to 0.20% of the Company's net assets up to and
including U.S. $600 million and 0.175% of the Company's net assets in
excess of U.S. $600 million. For the purpose of determining fees
payable to the Administrator, the net assets of the Company shall mean
the value of the total assets of the Company, minus the sum of the
accrued liabilities of the Company exclusive of capital stock and
surplus. The value of the Company's net assets shall be computed at
the times and in the manner specified in the Company's Registration
Statement on Form N-lA, as amended from time to time (the
"Registration Statement"). Compensation by the Company of the
Administrator shall be pro-rated for any partial month of service,
according to the proportion that such period bears to the full monthly
period and shall be payable within seven (7) days after the end of the
period to which such compensation relates.
Following the termination of the Period, this Addendum shall cease to
be of force and effect.
This Second Addendum, as of its effectiveness on January 1, 1997, will
supersede and replace the Addendum to the Administration Agreement executed and
delivered by the parties as of December 4, 1995.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on
the 10th day of October, 1996.
XXXXX FUNDS, INC.
By
---------------------------
Xxxxx X. Xxxxx, Chairman
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc.,
General Partner
By
---------------------------
Xxxxxxx X.X. Xxxxxx
