Exhibit (h)(3)
FORM OF ADMINISTRATION AGREEMENT
CLASS S SHARES
This Agreement is made as of May 1, 2002, between Xxxxxxxxx Xxxxxx
Advisers Management Trust, a Delaware business trust ("Trust"), and Xxxxxxxxx
Xxxxxx Management Inc., a New York corporation ("Administrator").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended ("1940 Act"), as an open-end, management investment company and has
established several separate series of shares ("Portfolios"), with each
Portfolio having its own assets and investment policies;
WHEREAS, each Portfolio has one or more classes of shares of beneficial
interest, and one such Class has been designated as Class S ("Class S Shares");
and
WHEREAS, the Trust desires to retain the Administrator to furnish
administrative services to the Class S Shares of each Portfolio listed in
Schedule A attached hereto, and to the Class S Shares of such other Portfolios
of the Trust hereinafter established as agreed to from time to time by the
parties, evidenced by an addendum to Schedule A (hereinafter "Portfolio" shall
refer to each Portfolio which is subject to this Agreement and all agreements
and actions described herein to be made or taken by a Portfolio shall be made or
taken by the Trust on behalf of the Portfolio), 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.
1.1 Administrative Services. The Administrator shall supervise the
business and affairs of each Portfolio and its Class S Shares and shall provide
such services required for effective administration of such Portfolio and its
Class S Shares as are not provided by employees or other agents engaged by such
Portfolio; provided, that the Administrator shall not have any obligation to
provide under this Agreement any direct or indirect services to a Portfolio's
shareholders, any services related to the distribution of a Portfolio's shares,
or any other services that are the subject of a separate agreement or
arrangement between a Portfolio 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 Portfolio and its Class S Shares, or pay the cost of, such office
space, office equipment and office facilities as are adequate for the needs of
the Portfolio and its Class S Shares;
1.1.2 Personnel. Provide, without remuneration from or other
cost to each Portfolio, the services of individuals competent to perform all of
the Portfolio's executive,
administrative and clerical functions of each Portfolio and its Class S Shares
that are not performed by employees or other agents engaged by the Portfolios or
by the Administrator acting in some other capacity pursuant to a separate
agreement or arrangement with the Portfolio;
1.1.3 Agents. Assist each Portfolio in selecting and
coordinating the activities of the other agents engaged by the Portfolio,
including the Portfolio's custodian, independent auditors and legal counsel,
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 Portfolio;
1.1.5 Books and Records. Ensure that all financial, accounting
and other records required to be maintained and preserved by each Portfolio 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 Portfolio or its Class S Shares to
shareholders of such Portfolio or Class and all reports and filings required to
maintain the registration and qualification of the Portfolio and the Class S
Shares, or to meet other regulatory or tax requirements applicable to the
Portfolio or its Class S Shares, under federal and state securities and tax
laws.
2. Expenses of each Portfolio.
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,
Portfolio 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 Portfolio or Class under any separate agreement or arrangement
between the parties.
2.2 Expenses to be Paid by the Portfolios. Each Portfolio shall bear
all expenses of its operation, except those specifically allocated to the
Administrator under this Agreement or under any separate agreement between such
Portfolio and the Administrator. Expenses to be borne by such Portfolio shall
include both expenses directly attributable to the operation of that Portfolio
and the offering of its shares, as well as the portion of any expenses of the
Trust that is properly allocable to such Portfolio in a manner approved by the
trustees of the Trust ("Trustees"). (The allocation of such expenses among the
classes of a Series, on either a class specific or pro rata basis, shall be made
in accordance with the Trust's 18f-3 Plan.) Subject to any separate agreement or
arrangement between the Trust or a Portfolio and the Administrator, the expenses
hereby allocated to each Portfolio, and not to the Administrator, include, but
are not limited to:
2
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 Portfolio 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 Portfolio;
2.2.4 Prospectuses. All expenses of preparing, setting in
type, printing and mailing annual or more frequent revisions of a Portfolio's
Prospectus and SAI and any supplements thereto and of supplying them to
shareholders of the Portfolio and Account holders;
2.2.5 Pricing and Portfolio Valuation. All expenses of
computing a Portfolio's NAV per share, including any equipment or services
obtained for the purpose of pricing shares or valuing the Portfolio's investment
portfolio;
2.2.6 Communications. All charges for equipment or services
used for communications between the Administrator or the Portfolio and any
custodian, shareholder servicing agent, portfolio accounting services agent, or
other agent engaged by a Portfolio;
2.2.7 Legal and Accounting Fees. All charges for services and
expenses of a Portfolio'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 Portfolio
under the 1940 Act and the registration of each Portfolio'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;
2.2.11 State Registration Fees. All fees and expenses of
qualifying and maintaining the qualification of the Trust and each Portfolio and
of each Portfolio's shares for sale
3
under securities laws of various states or jurisdictions, and of registration
and qualification of each Portfolio under all other laws applicable to a
Portfolio or its business activities (including registering the Portfolio as a
broker-dealer, or any officer of the Portfolio or any person as agent or
salesman of the Portfolio in any state);
2.2.12 Share Certificates. All expenses of preparing and
transmitting a Portfolio's share certificates, if any;
2.2.13 Confirmations. All expenses incurred in connection with
the issue and transfer of a Portfolio'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 Portfolio 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 Portfolio's
securities;
2.2.16 Taxes. All taxes or governmental fees payable by or
with respect to a Portfolio to federal, state or other governmental agencies,
domestic or foreign, including stamp or other transfer taxes;
2.2.17 Trade Association Fees. Its proportionate share of all
fees, dues and other expenses incurred in connection with the Trust'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 Portfolio is a party and the
expenses a Portfolio 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 Portfolio paid or assessed by the Administrator, which such Portfolio 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 Portfolio 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
Portfolio.
3. Administration Fee.
3.1 Fee. As compensation for all services rendered, facilities
provided and expenses paid or assumed by the Administrator to or for each
Portfolio or its Class S Shares under this Agreement, the Class S Shares
4
of such Portfolio 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
Portfolio 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 Class S Shares of such Portfolio, determined in the manner set forth
in such Portfolio's then-current Class S Shares Prospectus, as of the close of
business on the last preceding business day on which such Portfolio's Class S
Shares NAV was determined.
4. Ownership of Records. All records required to be maintained and
preserved by each Portfolio 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
Portfolio are the property of such Portfolio and shall be surrendered by the
Administrator promptly on request by the Portfolio; provided, that the
Administrator may at its own expense make and retain copies of any such records.
5. Reports to Administrator. Each Portfolio shall furnish or otherwise
make available to the Administrator such copies of that Portfolio's Class S
Shares 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 Portfolio. The Administrator shall prepare and furnish
to each Portfolio such reports, statistical data and other information in such
form and at such intervals as such Portfolio 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 Portfolio 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 relate to
any Portfolio or to any of a Portfolio'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 Portfolio (which approval
will not be unreasonably withheld and may not be withheld by such Portfolio
where the Administrator advises such Portfolio 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 Portfolio.
5
9. The Administrator's Actions in Reliance on Portfolios' Instructions,
Legal Opinions, Etc.; Portfolios' Compliance with Laws.
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 Portfolio 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 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 Portfolio 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 Portfolio.
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 Portfolio by the Administrator, each Portfolio
assumes full responsibility for the preparation, contents, filing and
distribution of its Class S Shares 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 applicable laws, rules and regulations of governmental authorities
having jurisdiction over such Portfolio.
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 Portfolio for performance of this Agreement by
the Trust on behalf of such Portfolio, and neither the Trustees of the Trust nor
any of the Trust's officers, employees or agents, whether past, present or
future shall be personally liable therefor.
12. Indemnification by Portfolio. Each Portfolio 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 Portfolio; or (ii) any action taken or omission to act
committed by the Administrator in the performance of its obligations hereunder
with respect to such Portfolio; 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
Portfolio; 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 confessing any claim against it which may be subject to
indemnification by a Portfolio hereunder, the Administrator shall give
6
such Portfolio 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 Portfolio and hold it harmless from and against any and all
losses, damages and expenses, including reasonable attorneys' fees and expenses,
incurred by such Portfolio which result from (i) the Administrator's failure to
comply with the terms of this Agreement with respect to such Portfolio; or (ii)
the Administrator's lack of good faith in performing its obligations hereunder
with respect to such Portfolio; or (iii) the Administrator's negligence or
misconduct or its employees, agents or contractors in connection herewith with
respect to such Portfolio. A Portfolio shall not be entitled to such
indemnification in respect of actions or omissions constituting negligence or
misconduct on the part of that Portfolio 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 Portfolio 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 Portfolio.
14. Effect of Agreement. Nothing herein contained shall be deemed to
require the Trust or any Portfolio 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
Trustees of their responsibility for and control of the conduct of the business
and affairs of the Portfolio or Trust.
15. Term of Agreement. The term of this Agreement shall begin on the date
indicated with respect to each Portfolio listed in Schedule A and, unless sooner
terminated as hereinafter provided, this Agreement shall remain in effect to the
date two years after such execution, unless renewed as hereinafter provided
prior to that date. Thereafter, in each case this Agreement shall continue in
effect with respect to each Portfolio from year to year, subject to the
termination provisions and all other terms and conditions hereof; provided, such
continuance with respect to a Portfolio 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 Portfolio 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
Portfolio, 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 Portfolio (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 Class S Shares of such Portfolio. This Agreement shall
7
terminate automatically and immediately in the event of its assignment;
provided, that with the consent of a Portfolio, the Administrator may
subcontract to another person any of its responsibilities with respect to such
Portfolio.
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 Portfolio, 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 Class S Shares of such Portfolio.
18. Use of Name. Each Portfolio hereby agrees that if the Administrator
shall at any time for any reason cease to serve as administrator to a Portfolio,
such Portfolio shall, if and when requested by the Administrator, 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
Portfolio 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 1940 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," "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 to be principally performed in
the State of New York, and except insofar as the 1940 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.
8
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.
Attest: XXXXXXXXX XXXXXX
ADVISERS MANAGEMENT TRUST
--------------------------- ----------------------------
Secretary By:
Title:
Attest: XXXXXXXXX XXXXXX
MANAGEMENT INC.
--------------------------- ----------------------------
Secretary By:
Title:
9
XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST
ADMINISTRATION AGREEMENT
CLASS S SHARES
SCHEDULE A
The Class S Shares of the Portfolios of Xxxxxxxxx Xxxxxx Advisers
Management Trust currently subject to this Agreement and the dates such
Portfolios were added to this Agreement are as follows:
Xxxxxxxx Portfolio May 1, 2002
Focus Portfolio May 1, 2002
Guardian Portfolio May 1, 2002
International Portfolio May 1, 2002
Mid-Cap Growth Portfolio January 1, 2003
Real Estate Portfolio November 1, 2002
10
XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST
ADMINISTRATION AGREEMENT
CLASS S SHARES
SCHEDULE B
Compensation pursuant to Paragraph 3 of the Xxxxxxxxx Xxxxxx Advisers
Management Trust Administration Agreement shall be:
(1) The following percentage per annum of the average daily net assets
attributable to the Class S Shares of each Portfolio:
Xxxxxxxx Portfolio 0.30%
Focus Portfolio 0.30%
Guardian Portfolio 0.30%
International Portfolio 0.30%
Mid-Cap Growth Portfolio 0.30%
Real Estate Portfolio 0.30%
(2) Certain out-of-pocket expenses for technology used for shareholder
servicing and shareholder communications, subject to the prior approval of an
annual budget by the Trust's Board of Trustees, including a majority of those
Trustees who are not interested persons of the Trust or of Xxxxxxxxx Xxxxxx
Management Inc., and periodic reports to the Board of Trustees on actual
expenses.
DATED: January 1, 2003
11
