EXHIBIT (h.1)
MANAGEMENT AND ADMINISTRATION AGREEMENT
As of June __, 2002
Treasury Plus, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
The Xxxxxxx/Xxxxxx Investment Group, a Delaware business trust
(the "Trust"), herewith confirms its Agreement with Treasury Plus, Inc., a
California corporation ("Administrator"), as follows:
The Trust desires to employ a portion of its capital by investing
and reinvesting the same in investments of the type and in accordance with the
limitations specified in its Declaration of Trust and in the Prospectuses and
Statements of Additional Information relating to each of the investment
portfolios and any additional investment portfolios of the Trust, as each are or
will be identified on Schedule A hereto (such investment portfolios and any
additional investment portfolios together called the "Funds"), copies of which
have been or will be submitted to Administrator, and in resolutions of the
Trust's Board of Trustees. The Trust and Administrator hereby agree that
Administrator will serve as the manager and administrator for the Funds upon the
following terns and conditions.
1. Services as Manager and Administrator
Subject to the direction and control of the Board of Trustees and
officers of the Trust, Administrator will supervise all aspects of the
operations of the Funds except those performed by the investment adviser for the
Funds under its Investment Management Agreement, the custodian for the Funds
under its Custodian Agreement, the transfer agent for the Funds under its
Transfer Agency Agreement and the fund accountant for the Funds under its Fund
Accounting Agreement.
Administrator will maintain office facilities (which may be in
the offices of Administrator or an affiliate but shall be in such location as
the Trust shall reasonably determine); furnish statistical and research data,
clerical and certain bookkeeping services and
stationery and office supplies; prepare the periodic reports to the Securities
and Exchange Commission (the "Commission") on Form N-SAR or any replacement
forms therefor; compile data for, prepare for execution by the Funds and file
all the Funds' federal and state tax returns and required tax filings other than
those required to be made by the Funds' custodian and transfer agent; prepare
compliance filings pursuant to state securities laws with the advice of the
Trust's counsel; assist to the extent requested by the Trust with the Trust's
preparation of its Annual and Semi-Annual Reports to Shareholders and its
Registration Statements (on Form N-1A or any replacement therefor); compile data
for, prepare and file timely Notices to the Commission required pursuant to Rule
24f-2 under the Investment Company Act of 1940 (the "1940 Act"); keep and
maintain the financial accounts and records of the Funds, including those with
respect to calculation of daily expense accruals; in the case of money market
funds, periodically review the amount of the deviation, if any, of the current
net asset value per share (calculated using available market quotations or an
appropriate substitute that reflects current market conditions) from each money
market fund's amortized cost price per share; and generally assist in all
aspects of the operations of the Funds. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, Administrator hereby agrees that all records
which it maintains for the Trust are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the Trust's
request. Administrator further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records required to be maintained by Rule
31a-1 under the 1940 Act.
Administrator will authorize and permit any of its partners,
officers and employees who may be elected as officers of the Trust to serve in
the capacities in which they are elected. Administrator may, at its expense,
subcontract with any entity or person concerning the provision of the services
contemplated hereunder; provided, however, that Administrator shall not be
relieved of any of its obligations under this Agreement by the appointment of
such subcontractor; and provided further, that Administrator shall be
responsible, to the extent provided in Section 4 hereof, for all acts of such
subcontractor as if such acts were its own.
-2-
2. Fees; Expenses; Expense Reimbursement
In consideration of services rendered and expenses assumed
pursuant to this Agreement, each of the Funds will pay Administrator on the
first business day of each month, or at such time(s) as Administrator shall
request and the parties hereto shall agree, a fee computed daily and paid as
specified below equal to the lesser of (a) the annual rate of 0.08% of the
average daily net assets of each Fund, or (b) such other fee as may from time to
time be agreed upon in writing by the Trust Administrator. Administrator may
increase the fees it charges pursuant to Schedule A upon 90 days prior notice to
the Trust; provided, however, that Administrator may not increase such fees
until the expiration of the initial term of this Agreement unless the Trust
otherwise agrees to such change in writing.
The fee for the period from the day of the month this Agreement
is entered into until the end of that month shall be prorated according to the
proportion which such period bears to the full monthly period. Upon any
termination of this Agreement before the end of any month, the fee for such part
of a month shall be prorated according to the proportion which such period bears
to the full monthly period and shall be payable upon the date of termination of
this Agreement.
For the purpose of determining fees payable to Administrator, the
value of the net assets of a particular Fund shall be computed in the manner
described in the Trust's Declaration of Trust or in the Prospectus or Statement
of Additional information respecting that Fund as from time to time in effect
for the computation of the value of such net assets in connection with the
determination of the liquidating value of the shares of such Fund.
Administrator will from time to time employ or associate with
itself such person or persons as Administrator may believe to be particularly
fitted to assist it in the performance of this Agreement. Such person or persons
may be officers, or employees who are employed by both Administrator and the
Trust. The compensation of such person or persons shall be paid by Administrator
and no obligation may be incurred on behalf of the Funds in such respect. Other
expenses to be incurred in the operation of the Funds including taxes, interest,
brokerage fees and commissions, if any, fees of Trustees who are not officers,
directors, shareholders or employees of Administrator or the investment adviser
or distributor for the Funds, commission
-3-
fees and state Blue Sky qualification and renewal fees and expenses, investment
advisory fees, custodian fees, transfer and dividend disbursing agents' fees,
fund accounting fees (including fees for pricing of portfolio securities),
certain insurance premiums, outside and, to the extent authorized by the Trust,
inside auditing and legal fees and expenses, costs of maintenance of corporate
existence, costs of typesetting and printing prospectuses for regulatory
purposes and for distribution to current shareholders of the Funds, costs of
shareholders' and Trustees' reports and meetings and any extraordinary expenses
will be borne by Funds; provided, however, that the Funds will not bear,
directly or indirectly, the cost of any activity which is primarily intended to
result in the distribution of shares of the Funds.
If in any fiscal year the aggregate expenses of a particular Fund
(as defined under the securities regulations of any state having jurisdiction
over the Trust) exceed the expense limitations of any such state, Administrator
will reimburse such Fund for a portion of such excess expenses equal to such
excess times the ratio of the fees respecting such Fund otherwise payable to
Administrator hereunder to the aggregate fees respecting such Fund otherwise
payable to Administrator hereunder and to Xxxxxxx-Xxxxxx, LLC under the
Investment Management Agreement between Xxxxxxx-Xxxxxx, LLC and the Trust. The
expense reimbursement obligation of Administrator is limited to the amount of is
fees hereunder for such fiscal year, provided, however, that notwithstanding the
foregoing Administrator shall reimburse a particular Fund for such proportion of
such excess expenses regardless of the amount of fees paid to it during such
fiscal year to the extent the securities regulations of any state having
jurisdiction over the Trust so require. Such expense reimbursement, if any, will
be estimated daily and reconciled and paid on a monthly basis.
3. Proprietary and Confidential Information
Administrator agrees on behalf of itself and its directors,
officers and employees to treat confidentially and as proprietary information of
the Trust all records and other information relative to the Trust 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
Trust, which approval shall be in the sole discretion of the Trust; provided
however, that such approval may not be withheld
-4-
where Administrator may be exposed to civil or criminal contempt proceedings for
failure to comply or when requested to divulge such information by duly
constituted authorities.
4. Limitation of Liability
Administrator shall not be liable for any loss suffered by the
Funds in connection with the matters to which this Agreement relates, except for
a loss resulting from willful misfeasance, bad faith or negligence on
Administrator's part in the performance of its duties or from reckless disregard
regard by it of its obligations and duties under this Agreement. Any person,
even though also a director, officer, employee, or agent of Administrator, who
may be or become an officer, Trustee, employee, or agent of the Trust or the
Funds shall be deemed, when rendering services to the Trust or the Funds (other
than services required to be performed on behalf of the Trust or the Funds by
Administrator pursuant to this Agreement), or when acting on any business of
that party (other than business required to be performed on behalf of that party
by Administrator pursuant to this Agreement), to be rendering such services to
or acting solely for that party and not as a director, officer, employee, or
agent or one under the control or direction of Administrator even though paid by
it.
5. Term
This Agreement shall become effective as of the date first
written above (or, if a particular Fund is not in existence on the date, on the
date an amendment to Schedule A to this Agreement relating to that Fund is
executed) and shall continue until June __, 2004, and thereafter shall be
renewed automatically for successive one-year terns upon annual approval by the
Trust's Board of Trustees. Notwithstanding the foregoing, after the initial term
this Agreement is terminable by either party with respect to a particular Fund
at any time on not less than 60 days notice by the Trust's Board of Trustees or
by Administrator.
6. Governing Law and Matters Relating to the Trust as a
Delaware Business Trust
This Agreement shall be governed by the law of the State of
Delaware. The name "The Xxxxxxx/Xxxxxx Investment Group" and "Trustees of The
Xxxxxxx/Xxxxxx Investment Group" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under the
-5-
Declaration of Trust dated as of ________, 2002, to which reference is hereby
made and a copy of which is on file at the office of the Secretary of State of
the State of Delaware and elsewhere as required by law, and to any and all
amendments thereto so filed or hereafter filed. Administrator acknowledges and
agrees that the obligations of "The Xxxxxxx/Xxxxxx Investment Group" entered
into in the name or on behalf thereof by any of the Trustees, representatives or
agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, shareholders or representatives of the Trust
personally, but bind only the assets of the Trust, and that Administrator must
look solely to the assets of the Trust for the enforcement of any claims against
the Trust.
7. Representatives
Each party represents and warrants to the other that this
Agreement has been duly authorized by such party and, when executed and
delivered by such party, will constitute a legal, valid and binding obligations
of such party, enforceable against such party in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and secured
parties, and to general equitable principles.
8. Miscellaneous
Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement. No
provision of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by a party against which the
enforcement of the change, waiver, discharge or termination is sought. Notices
of any kind to be given to the Trust hereunder by Administrator shall be in
writing and shall be duly given if mailed or delivered to the Trust at 000 Xxxxx
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: President,
or at such other address or to such other individual as shall be so specified by
the Trust to Administrator hereunder. Notices of any kind to be given to
Administrator hereunder by the Trust shall be in writing and shall be duly given
if mailed or delivered to Administrator at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, Attention: President, or at such
-6-
other address or to such other individual as shall be so specified by
Administrator to the Trust hereunder.
If the foregoing is in accordance with your understanding, kindly
so indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
THE XXXXXXX/XXXXXX INVESTMENT GROUP
By:
----------------------------------------
Accepted:
TREASURY PLUS, INC.
By:
-------------------------------
-7-
MANAGEMENT AND ADMINISTRATION AGREEMENT
EXHIBIT A
Xxxxxxx/Xxxxxx International Equity Fund
Xxxxxxx/Xxxxxx ADR Equity Fund
Xxxxxxx/Xxxxxx European Equity Fund
