Exhibit k.5
FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of November,
2002, by and between MeVC Xxxxxx Xxxxxx Jurvetson Fund I, Inc., a Delaware
corporation (the "Fund"), and U.S. Bancorp Fund Services, LLC, a Wisconsin
limited liability company ("USBFS").
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as a closed-end management investment company,
which has elected to do business as a business development company;
WHEREAS, USBFS is, among other things, in the business of providing fund
administration services for the benefit of its customers; and
WHEREAS, the Fund desires to retain USBFS to provide fund administration
services for the Fund.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. APPOINTMENT OF USBFS AS ADMINISTRATOR
The Fund hereby appoints USBFS as administrator of the Fund on the terms
and conditions set forth in this Agreement, and USBFS hereby accepts such
appointment and agrees to perform the services and duties set forth in
this Agreement.
2. SERVICES AND DUTIES OF USBFS
USBFS shall provide the following fund administration services for the
Fund, including but not limited to:
A. General Fund Management:
(1) Act as liaison among all Fund service providers.
(2) Supply:
a. Corporate secretarial services.
b. Office facilities (which may be in USBFS's or its
affiliate's own offices).
c. Non-investment-related statistical and research data as
needed.
(3) Coordinate the Fund's Board of Directors' (the "Board of
Directors" or the "Directors") communication:
a. Establish meeting agendas.
b. Prepare reports for the Board of Directors based on
financial and administrative data.
c. Evaluate independent auditor.
d. Secure and monitor fidelity bond and director and
officer liability coverage, and make the necessary
Securities and Exchange Commission (the "SEC") filings
relating thereto.
e. Prepare minutes of meetings of the Board of Directors
and Fund shareholders.
f. Recommend dividend declarations to the Board of
Directors, prepare and distribute to appropriate parties
notices announcing declaration of dividends and other
distributions to shareholders.
g. Provide personnel to serve as officers of the Fund if so
elected by the Board of Directors, attend Board of
Directors meetings and present materials for Directors'
review at such meetings.
(4) Audits:
a. Prepare appropriate schedules and assist independent
auditors.
b. Provide information to the SEC and facilitate audit
process.
c. Provide office facilities.
(5) Assist in overall operations of the Fund.
(6) Pay Fund expenses upon written authorization from the Fund.
(7) Monitor arrangements under shareholder services or similar
plan.
(8) Monitor and communicate activity under share repurchase or
tender offer plans.
B. Compliance:
(1) Regulatory Compliance:
a. Monitor compliance with the 1940 Act requirements,
including:
(i) Asset diversification tests.
(ii) Total return and SEC yield calculations.
(iii) Maintenance of books and records under Rule 31a-3.
(iv) Code of Ethics for the disinterested Directors of
the Fund.
(v) Business development company requirements.
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b. Monitor Fund's compliance with the policies and
investment limitations of the Fund as set forth in its
current prospectus (the "Prospectus") and statement of
additional information (the "SAI").
c. Maintain awareness of applicable regulatory and
operational service issues and recommend dispositions.
(2) Blue Sky Compliance:
a. Prepare and file with the appropriate state securities
authorities any and all required compliance filings
relating to the registration of the securities of the
Fund, if applicable.
b. Monitor status and maintain registrations in each state.
c. Provide information regarding material developments in
state securities regulation.
(3) SEC Registration and Reporting:
a. Assist corporate counsel in updating the Prospectus and
SAI, as necessary, and in preparing and filing proxy
materials.
b. Prepare and file annual report, Form 10Q, Form 10K and
Form 8K filings.
c. Coordinate the printing, edgarization, filing and
mailing of publicly disseminated Prospectuses and
reports and dissemination of disclosure made via press
releases.
d. Prepare and file fidelity bond under Rule 17g-1.
e. File shareholder reports under Rule 30b2-1, if
applicable.
f. Monitor sales of each Fund's shares and ensure that such
shares are properly registered with the SEC and the
appropriate state authorities, if applicable.
g. Prepare and file reports and other documents required by
U.S. stock exchanges on which the Company's shares are
listed.
(4) IRS Compliance:
a. Monitor the Fund's status as a regulated investment
company under Subchapter M, including without
limitation, review of the following:
(i) Asset diversification requirements.
(ii) Qualifying income requirements.
(iii) Distribution requirements.
b. Calculate required distributions (including excise tax
distributions).
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C. SEC Inspections:
(1) Assist in producing materials requested by the SEC.
(2) Maintain records of all materials produced as requested by the
Securities and Exchange Commission.
D. Financial Reporting:
(1) Provide financial data required by the Fund's Prospectus and
SAI.
(2) Prepare financial reports for officers, shareholders, tax
authorities, performance reporting companies, the Board of
Directors, the SEC, independent auditors, and the New York
Stock Exchange.
(3) Supervise the Fund's custodian and fund accountants in the
maintenance of the Fund's general ledger and in the
preparation of the Fund's financial statements, including
oversight of expense accruals and payments, of the
determination of net asset value of the Fund's net assets and
of the Fund's shares, and of the declaration and payment of
dividends and other distributions to shareholders.
(4) Compute the yield, total return and expense ratio of the Fund
and the Fund's portfolio turnover rate.
(5) Monitor the expense accruals and notify the Fund's management
of any proposed adjustments.
(6) Prepare monthly financial statements, which include without
limitation the following items:
a. Schedule of Investments.
b. Statement of Assets and Liabilities.
c. Statement of Operations.
d. Statement of Changes in Net Assets.
e. Cash Statement.
f. Schedule of Capital Gains and Losses.
g. Schedule of Shareholders Equity.
(7) Prepare quarterly broker security transaction summaries.
(8) Coordinate certification requirements pursuant to the
Xxxxxxxx-Xxxxx Act.
E. Tax Reporting:
(1) Prepare and file on a timely basis appropriate federal and
state tax returns including, without limitation, Forms
1120/8610 with any necessary schedules.
(2) Prepare state income breakdowns where relevant.
(3) File Form 1099 Miscellaneous for payments to Directors and
other service providers.
(4) Monitor wash losses.
(5) Calculate eligible dividend income for corporate shareholders.
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3. COMPENSATION
USBFS shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit A
hereto (as amended from time to time). The Fund shall pay all fees and
reimbursable expenses within thirty (30) calendar days following receipt
of the billing notice, except for any fee or expense subject to a good
faith dispute. The Fund shall notify USBFS in writing within thirty (30)
calendar days following receipt of each invoice if the Fund is disputing
any amounts in good faith. The Fund shall settle such disputed amounts
within ten (10) calendar days of the day on which the parties agree to the
amount to be paid. With the exception of any fee or expense the Fund is
disputing in good faith as set forth above, unpaid invoices shall accrue a
finance charge of one and one-half percent (1-1/2%) per month, after the
due date. Notwithstanding anything to the contrary, amounts owed by the
Fund to USBFS shall only be paid out of the assets and property of the
particular Fund involved.
4. INDEMNIFICATION; LIMITATION OF LIABILITY
A. USBFS shall exercise reasonable care in the performance of its
duties under this Agreement. USBFS shall not be liable for any error
of judgment or mistake of law or for any loss suffered by the Fund
in connection with matters to which this Agreement relates,
including losses resulting from mechanical breakdowns or the failure
of communication or power supplies beyond USBFS's control, except a
loss arising out of or relating to USBFS's refusal or failure to
comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the performance of
its duties under this Agreement. Notwithstanding any other provision
of this Agreement, if USBFS has exercised reasonable care in the
performance of its duties under this Agreement, the Fund shall
indemnify and hold harmless USBFS from and against any and all
claims, demands, losses, expenses, and liabilities of any and every
nature (including reasonable attorneys' fees) which USBFS may
sustain or incur or which may be asserted against USBFS by any
person arising out of any action taken or omitted to be taken by it
in performing the services hereunder, (i) in accordance with the
standard of care set forth herein, or (ii) in reliance upon any
written or oral instruction provided to USBFS by any duly authorized
officer of the Fund, such duly authorized officer to be included in
a list of authorized officers furnished to USBFS and as amended from
time to time in writing by resolution of the Board of Directors,
except for any and all claims, demands, losses, expenses, and
liabilities arising directly or indirectly out of or relating to
USBFS's refusal or failure to comply with the terms of this
Agreement or from bad faith, negligence or from willful misconduct
on its part in performance of its duties under this Agreement.
USBFS shall indemnify and hold the Fund, its officers, directors and
employees harmless from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) that the Fund may sustain or incur or
that may be asserted against the Fund by any person
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arising directlly or indirectly out of any action taken or omitted
to be taken by USBFS as a result of USBFS's refusal or failure to
comply with the terms of this Agreement, its bad faith, negligence,
or willful misconduct.
In the event of a mechanical breakdown or failure of communication
or power supplies beyond its control, USBFS shall take all
reasonable steps to minimize service interruptions for any period
that such interruption continues beyond USBFS's control. USBFS will
make every reasonable effort to restore any lost or damaged data and
correct any errors resulting from such a breakdown at the expense of
USBFS. USBFS agrees that it shall, at all times, have reasonable
contingency plans with appropriate parties, making reasonable
provision for emergency use of electrical data processing equipment
to the extent appropriate equipment is available. Representatives of
the Fund shall be entitled to inspect USBFS's premises and operating
capabilities at any time during regular business hours of USBFS,
upon reasonable notice to USBFS.
Notwithstanding the above, USBFS reserves the right to reprocess and
correct administrative errors at its own expense.
B. In order that the indemnification provisions contained in this
section shall apply, it is understood that if in any case the
indemnitor may be asked to indemnify or hold the indemnitee
harmless, the indemnitor shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is
further understood that the indemnitee will use all reasonable care
to notify the indemnitor promptly concerning any situation that
presents or appears likely to present the probability of a claim for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim that may be the subject of this
indemnification with counsel reasonably satisfactory to indemintee
unless the legal rights and defenses available to indemnitor and
indemnitee present a conflict for joint counsel. In the event that
the indemnitor so elects, it will so notify the indemnitee and
thereupon the indemnitor shall take over complete defense of the
claim, and the indemnitee shall in such situation initiate no
further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor's prior written consent.
5. PROPRIETARY AND CONFIDENTIAL INFORMATION
USBFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the
Fund all records and other information relative to the Fund and prior,
present, or potential shareholders of the Fund (and clients of said
shareholders) including all shareholder trading information, and not to
use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except after
prior notification to and approval in
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writing by the Fund, which approval shall not be unreasonably withheld and
may not be withheld where USBFS may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the
Fund. USBFS acknowledges that it may come into possession of material
nonpublic information with respect to the Fund and confirms that it has in
place effective procedures to prevent the use of such information in
violation of applicable xxxxxxx xxxxxxx laws.
Further, USBFS will adhere to the privacy policies adopted by the Fund
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time (the "Act"). Notwithstanding the foregoing, USBFS will not
share any nonpublic personal information concerning any of the Fund's
shareholders to any third party unless specifically directed by the Fund
or allowed under one of the exceptions noted under the Act.
6. TERM OF AGREEMENT; AMENDMENT
This Agreement shall become effective as of the date first written above
and will continue in effect for a period of three years; provided however,
the Fund may terminate the agreement by giving USBSF ninety (90) days
prior written notice in the event that USBFS breaches the standard of care
set forth herein. Subsequent to the initial three-year term, this
Agreement may be terminated by either party upon giving ninety (90) days
prior written notice to the other party or such shorter period as is
mutually agreed upon by the parties. However, this Agreement may be
amended by mutual written consent of the parties.
7. RECORDS
USBFS shall keep records relating to the services to be performed
hereunder in the form and manner, and for such period, as it may deem
advisable and is agreeable to the Fund, but not inconsistent with the
rules and regulations of appropriate government authorities, in
particular, Section 31 of the 1940 Act and the rules thereunder. USBFS
agrees that all such records prepared or maintained by USBFS relating to
the services to be performed by USBFS hereunder are the property of the
Fund and will be preserved, maintained, and made available in accordance
with such applicable sections and rules of the 1940 Act and will be
promptly surrendered to the Fund on and in accordance with its request.
USBFS agrees to provide any records necessary to the Fund to comply with
the Fund's disclosure controls and procedures adopted in accordance with
the Xxxxxxxx-Xxxxx Act. Without limiting the generality of the foregoing,
the USBFS shall cooperate with the Fund and assist the Fund as necessary
by providing information to enable the appropriate officers of the Fund to
execute any required certifications.
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8. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940
Act, the latter shall control, and nothing herein shall be construed in a
manner inconsistent with the 1940 Act or any rule or order of the SEC
thereunder.
9. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor to any of
USBFS's duties or responsibilities hereunder is designated by the Fund by
written notice to USBFS, USBFS will promptly, upon such termination and at
the expense of the Fund, transfer to such successor all relevant books,
records, correspondence, and other data established or maintained by USBFS
under this Agreement in a form reasonably acceptable to the Fund (if such
form differs from the form in which USBFS has maintained, the Fund shall
pay any expenses associated with transferring the data to such form), and
will cooperate in the transfer of such duties and responsibilities,
including provision for assistance from USBFS's personnel in the
establishment of books, records, and other data by such successor.
10. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower USBFS to
act as agent for the other party to this Agreement, or to conduct business
in the name, or for the account, of the other party to this Agreement.
11. DATA NECESSARY TO PERFORM SERVICES
The Fund or its agent shall furnish to USBFS the data necessary to perform
the services described herein at such times and in such form as mutually
agreed upon. If USBFS is also acting in another capacity for the Fund,
nothing herein shall be deemed to relieve USBFS of any of its obligations
in such capacity.
12. ASSIGNMENT
This Agreement may not be assigned by either party without the prior
written consent of the other party.
13. NOTICES
Any notice required or permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, upon delivery after sent by
registered or certified mail, postage prepaid,
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return receipt requested, or on the date sent and confirmed received by
facsimile transmission to the other party's address set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Fund shall be sent to:
MeVC Xxxxxx Xxxxxx Jurvetson Fund I, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements,
arrangements and understandings, whether written or oral.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer on one or more counterparts as of the date first
above written.
MEVC XXXXXX XXXXXX JURVETSON FUND I, INC. U.S. BANCORP FUND SERVICES, LLC
By: _____________________________________ By: ________________________________
Xxx X. Xxxxxxx
Title: __________________________________ Title: President
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EXHIBIT A
TO THE
FUND ADMINISTRATION SERVICING AGREEMENT
AND THE
FUND ACCOUNTING SERVICING AGREEMENT
With respect to the minimum annual fee, the Fee Schedule for the Fund
Administration Servicing Agreement shall be read in conjunction with the Fee
Schedule for the Fund Accounting Servicing Agreement between the same parties
and entered into as of the same date. That schedule in full is reproduced below:
ANNUAL FEE SCHEDULE
Aggregate Minimum Annual Fee of $85,000 or an asset based fee of 9.3 basis
points to first $100 million, 6 basis points thereafter, whichever is greater
(out-of-pockets not included).
FUND ACCOUNTING
All out-of-pocket expenses are billed monthly, included, but not limited to:
$.15 Domestic and Canadian Equities, Options
$.50 Corp/Gov/Agency Bonds, International Equities and Bonds
$.80 CMO's, Municipal Bonds, Money Market Instruments
$125 Per fund per month - Mutual Funds
Corporate Action Services
$2.00 Per equity security per month
Manual Security Pricing
$125 per month - greater than 10/day
Factor Services (BondBuyer)
Per CMO - $1.50/month
Per Mortgage Backed - $0.25/month
Minimum - $300/month
FUND ADMINISTRATION
Postage, Stationery
Programming, Special Reports
Proxies, Insurance
XXXXX filing - Approx. $11.00/page
Retention of records
Federal and state regulatory filing fees
Certain insurance premiums
Expenses from board of directors meetings
Auditing and legal expenses
Blue Sky conversion expenses (if necessary)
All other out-of-pocket expenses
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