EXHIBIT 23(h)(2)
ADMINISTRATION AGREEMENT
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THIS AGREEMENT is made as of this ________ day of _________________, 2000,
by and between XXXXXX XXXX MULTISTOCK FUNDS, a Massachusetts business trust (the
"Company"), having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, and BISYS FUND SERVICES OHIO, INC. (the "Administrator"),
an Ohio corporation organized under the laws of the State of Ohio and having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), which may consist of one or more series of shares of beneficial interest
or common stock ("Shares"); and
WHEREAS, the Company desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
each series of the Company, all as now or hereafter may be established from time
to time ("Portfolios"), on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Administrator hereby agree as
follows:
ARTICLE 1. Retention of the Administrator. The Company hereby retains
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the Administrator to act as the administrator of the Portfolios and to furnish
the Portfolios with the management and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform
the duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Company in any way and shall
not be deemed an agent of the Company.
ARTICLE 2. Administrative Services. The Administrator shall perform or
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supervise the performance by others of other administrative services in
connection with the operations of the Portfolios, and, on behalf of the Company,
will investigate, assist in the selection of and conduct relations with
custodians, depositories, accountants, legal counsel, underwriters, brokers and
dealers, corporate fiduciaries, insurers, banks and persons in any other
capacity deemed to be necessary or desirable for the Portfolios' operations.
The Administrator shall provide the Board of Trustees/ Directors of the Company
(hereafter referred to as the "Directors") with such reports regarding
investment performance as they may reasonably request but shall have no
responsibility for supervising the performance by any investment adviser or sub-
adviser of its responsibilities.
The Administrator shall provide the Company with regulatory reporting, all
necessary office space, equipment, personnel, compensation and facilities
(including facilities for Shareholders' and Directors' meetings) for handling
the affairs of the Portfolios and such other services as the Administrator
shall, from time to time, determine to be necessary to perform its obligations
under this Agreement. In addition, at the request of the Directors, the
Administrator shall make reports to the Company's Directors concerning the
performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(a) calculate contractual Company expenses and control all
disbursements for the Company, and as appropriate, compute the
Company's yields, total return, expense ratios, portfolio turnover
rate and, if required, portfolio average dollar-weighted maturity;
(b) (i) coordinate, prepare and file with the SEC the annual update
to Form N-1A and other routine post-effective amendments and
supplements, (ii) prepare and file with the SEC Notices of Annual or
Special Meetings of Shareholders and proxy materials relating thereto
with respect to routine matters, (iii) assist Company counsel in
preparing non-routine post-effective amendments and supplements and
proxy materials, (iv) coordinate the printing and distribution of
prospectuses, supplements and proxy materials, and (v) coordinate the
solicitation and tabulation of proxies in connection with meetings of
shareholders;
(c) prepare such reports, notice filing forms and other documents
(including reports regarding the sale and redemption of Shares as may
be required in order to comply with Federal and state securities laws)
as may be necessary or desirable to make notice filings relating to
the Company's Shares with state securities authorities, monitor the
sale of Company Shares for compliance with state securities laws, and
file with the appropriate state securities authorities the
registration statements and reports for the Company and the Company's
Shares and all amendments thereto, as may be necessary or convenient
to qualify and keep effective the Company and the Company's Shares
with state securities authorities to enable the Company to make a
continuous offering of its Shares;
(d) develop and prepare, with the assistance of the Company's
investment adviser, communications to Shareholders, including the
annual report to Shareholders, coordinate the mailing of prospectuses,
notices, proxy statements, proxies and other reports to Company
Shareholders, and supervise and facilitate the proxy solicitation
process for all shareholder meetings, including the tabulation of
shareholder votes;
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(e) administer contracts on behalf of the Company with, among others,
the Company's investment adviser, distributor, custodian, transfer
agent and fund accountant;
(f) supervise the Company's transfer agent with respect to the
payment of dividends and other distributions to Shareholders;
(g) calculate performance data of the Portfolios for dissemination to
information services covering the investment company industry;
(h) coordinate and supervise the preparation and filing of the
Company's tax returns;
(i) examine and review the operations and performance of the various
organizations providing services to the Company or any Portfolio of
the Company, including, without limitation, the Company's investment
adviser, distributor, custodian, fund accountant, transfer agent,
outside legal counsel and independent public accountants, and at the
request of the Directors, report to the Board on the performance of
organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing of the
Company's semi-annual and annual reports to Shareholders;
(k) assist with the design, development, and operation of the
Portfolios, including new classes, investment objectives, policies and
structure;
(l) provide individuals reasonably acceptable to the Company's
Directors to serve as officers of the Company, who will be responsible
for the management of certain of the Company's affairs as determined
by the Company's Directors;
(m) advise the Company and its Directors on matters concerning the
Company and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Company in
accordance with the requirements of Rules 17g-1 and 17d-1(7) under the
1940 Act as such bonds and policies are approved by the Company's
Directors;
(o) monitor and advise the Company and its Portfolios on their
registered investment company status under the Internal Revenue Code
of 1986, as amended;
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(p) perform all administrative services and functions of the Company
and each Portfolio to the extent administrative services and functions
are not provided to the Company or such Portfolio pursuant to the
Company's or such Portfolio's investment advisory agreement,
distribution agreement, custodian agreement, transfer agent agreement
and fund accounting agreement;
(q) furnish advice and recommendations with respect to other aspects
of the business and affairs of the Portfolios as the Company and the
Administrator shall determine desirable; and
(r) prepare and file with the SEC the semi-annual report for the
Company on Form N-SAR and all required notices pursuant to Rule 24f-2.
The Administrator shall perform such other services for the Company that
are mutually agreed upon by the parties from time to time. Such services may
include performing internal audit examinations; mailing the annual reports of
the Portfolios; preparing an annual list of Shareholders; and mailing notices of
Shareholders' meetings, proxies and proxy statements, for all of which the
Company will pay the Administrator's out-of-pocket expenses.
ARTICLE 3. Allocation of Charges and Expenses.
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(A) The Administrator. The Administrator shall furnish at its own expense
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the executive, supervisory and clerical personnel necessary to perform its
obligations under this Agreement. The Administrator shall also provide the
items which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Company as well as all Directors of the
Company who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Company retained by the Directors of the
Company to perform services on behalf of the Company.
(B) The Company. The Company assumes and shall pay or cause to be paid all
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other expenses of the Company not otherwise allocated herein, including, without
limitation, organization costs, taxes, expenses for legal and auditing services,
the expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of custodial services, the cost of
initial and ongoing registration of the Shares under Federal and state
securities laws, fees and out-of-pocket expenses of Directors who are not
affiliated persons of the Administrator or the Investment Adviser to the Company
or any affiliated corporation of the Administrator or the Investment Adviser,
insurance, interest, brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of investment advisers to the
Company.
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ARTICLE 4. Compensation of the Administrator.
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(A) Administration Fee. For the services to be rendered, the facilities
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furnished and the expenses assumed by the Administrator pursuant to this
Agreement, the Company shall pay to the Administrator such fees that are set
forth in the Omnibus Fee Agreement between the Company and the Administrator
dated as of _____________________, 2000 (the "Fee Agreement"). . Such
compensation shall be calculated and accrued daily, and paid to the
Administrator monthly. In addition to paying the Administrator the fees set
forth in the Fee Agreement, the Company shall also reimburse the Administrator
for its reasonable out-of-pocket expenses, including the travel and lodging
expenses incurred by officers and employees of the Administrator in connection
with attendance at Board meetings.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, the Administrator's compensation
for that part of the month in which this Agreement is in effect shall be
prorated in a manner consistent with the calculation of the fees as set forth
above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) Survival of Compensation Rights. All rights of compensation under this
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Agreement for services performed as of the termination date shall survive the
termination of this Agreement.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of
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the Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any act or omission in carrying
out its duties hereunder, except a loss resulting from willful misfeasance, bad
faith or negligence in the performance of its duties, or by reason of reckless
disregard of its obligations and duties hereunder, except as may otherwise be
provided under provisions of applicable law which cannot be waived or modified
hereby. (As used in this Article 5, the term "Administrator" shall include
partners, officers, employees and other agents of the Administrator as well as
the Administrator itself.)
So long as the Administrator acts in good faith and with due diligence and
without negligence, the Company assumes full responsibility and shall indemnify
the Administrator and hold it harmless from and against any and all actions,
suits and claims, whether groundless or otherwise, and from and against any and
all losses, damages, costs, charges, reasonable counsel fees and disbursements,
payments, expenses and liabilities (including reasonable investigation expenses)
arising directly or indirectly out of the Administrator's actions taken or
nonactions with respect to the performance of services hereunder. The indemnity
and defense provisions set forth herein shall indefinitely survive the
termination of this Agreement.
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The rights hereunder shall include the right to reasonable advances of
defense expenses in the event of any pending or threatened litigation with
respect to which indemnification hereunder may ultimately be merited. In order
that the indemnification provision contained herein shall apply, however, it is
understood that if in any case the Company may be asked to indemnify or hold the
Administrator harmless, the Company shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that the Administrator will use all reasonable care to identify and
notify the Company promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Company, but failure to do so in good faith shall not affect the rights
hereunder.
The Company shall be entitled to participate at its own expense or, if it
so elects, to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If the Company elects to assume the
defense of any such claim, the defense shall be conducted by counsel chosen by
the Company and satisfactory to the Administrator, whose approval shall not be
unreasonably withheld. In the event that the Company elects to assume the
defense of any suit and retain counsel, the Administrator shall bear the fees
and expenses of any additional counsel retained by it. If the Company does not
elect to assume the defense of a suit, it will reimburse the Administrator for
the reasonable fees and expenses of any counsel retained by the Administrator.
The Administrator may apply to the Company at any time for instructions and
may consult counsel for the Company or its own counsel and with accountants and
other experts with respect to any matter arising in connection with the
Administrator's duties, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance with such
instruction or with the opinion of such counsel, accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. The Administrator will not be held to have
notice of any change of authority of any officers, employees or agents of the
Company until receipt of written notice thereof from the Company.
ARTICLE 6. Activities of the Administrator. The services of the
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Administrator rendered to the Company are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that directors, officers, employees
and Shareholders of the Company are or may be or become interested in the
Administrator, as officers, employees or otherwise and that partners, officers
and employees of the Administrator and its counsel are or may be or become
similarly interested in the Company, and that the Administrator may be or become
interested in the Company as a Shareholder or otherwise.
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ARTICLE 7. Duration of this Agreement. The Term of this Agreement shall
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be as specified in Schedule A hereto.
ARTICLE 8. Assignment. This Agreement shall not be assignable by either
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party without the written consent of the other party; provided, however, that
the Administrator may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder. The
Administrator shall not, however, be relieved of any of its obligations under
this Agreement by the appointment of such subcontractor and provided further,
that the Administrator shall be responsible, to the extent provided in Article 5
hereof, for all acts of such subcontractor as if such acts were its own. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
ARTICLE 9. Amendments. This Agreement may be amended by the parties
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hereto only if such amendment is specifically approved (i) by the vote of a
majority of the Directors of the Company, and (ii) by the vote of a majority of
the Directors of the Company who are not parties to this Agreement or interested
persons of any such party, cast in person at a Directors meeting called for the
purpose of voting on such approval.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and the
Administrator may conclusively assume that any special procedure which has been
approved by the Company does not conflict with or violate any requirements of
its Articles of Incorporation or then current prospectuses, or any rule,
regulation or requirement of any regulatory body.
ARTICLE 10. Certain Records. The Administrator shall maintain customary
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records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and 31a-
2 under the 1940 Act which are prepared or maintained by the Administrator on
behalf of the Company shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Company and will be made
available to or surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Company and follow the
Company's instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records to any person in any case where
it is advised by its counsel that it may be held liable for failure to do so,
unless (in cases involving potential exposure only to civil liability) the
Company has agreed to indemnify the Administrator against such liability.
ARTICLE 11. Definitions of Certain Terms. The terms "interested person"
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and "affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
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ARTICLE 12. Notice. Any notice provided hereunder shall be sufficiently
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given when sent by registered or certified mail to the party required to be
served with such notice at the following address: if to the Company, to it at
_________________, Attn: _______________________; if to the Administrator, to it
at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attn: President, or at such other
address as such party may from time to time specify in writing to the other
party pursuant to this Section.
ARTICLE 13. Governing Law. This Agreement shall be construed in
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accordance with the laws of the State of Ohio and the applicable provisions of
the 1940 Act. To the extent that the applicable laws of the State of Ohio, or
any of the provisions herein, conflict with the applicable provisions of the
1940 Act, the latter shall control.
ARTICLE 14. Multiple Originals. This Agreement may be executed in two or
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more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
XXXXXX XXXX MULTISTOCK FUNDS
By:____________________________
Title: ________________________
BISYS FUND SERVICES OHIO, INC.
By:____________________________
Title: ________________________
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF
__________________
BETWEEN __
XXXXXX XXXX MULTISTOCK FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
Portfolios: This Agreement shall apply to all Portfolios of the Company,
either now or hereafter created (individually, the "Portfolio",
and collectively, the "Portfolios"). The current Portfolios of
the Company are set forth below:
Xxxxxx Xxxx Swiss Stock Fund
Term: Pursuant to Article 7, the term of this Agreement shall commence
on _______________________, 2000 and shall remain in effect
through _______________________, 2002 ("Initial Term").
Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed automatically for successive one-year
periods ("Rollover Periods"). This Agreement may be terminated
without penalty (i) by provision of a notice of nonrenewal in the
manner set forth below, (ii) by mutual agreement of the parties
or (iii) for "cause," as defined below, upon the provision of
sixty (60) days advance written notice by the party alleging
cause. Written notice of nonrenewal must be provided at least
sixty (60) days prior to the end of the Initial Term or any
Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty
(30) days following written notice of such breach from the non-
breaching party; (b) a final, unappealable judicial, regulatory
or administrative ruling or order in which the party to be
terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; (c) financial
difficulties on the part of the party to be terminated which are
evidenced by the authorization or commencement of, or involvement
by way of pleading, answer, consent or acquiescence in, a
voluntary or involuntary case under Title 11 of the United States
Code, as from time to time is in effect, or any applicable law,
other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification
or alteration of the rights of creditors; (d) any failure on the
part of the Company to collect from the investment adviser any
payment or reimbursement that is due and payable by the
investment adviser to the Company (including an amount due the
Company that directly or indirectly represents amounts payable to
the Administrator in its
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capacity as fund administrator to the Company) within sixty (60) days
following the due date; or (e) any failure on the part of the Company
to pay an amount that is due and payable to the Administrator or any
of its affiliates under any other agreement to which the Company is a
party within sixty (60) days following the due date. For purposes of
this definition of "cause," a material breach shall include, but not
be limited to, any failure on the part of the Company to pay fees due
and payable to the Administrator pursuant to Article 4 hereunder
within sixty (60) days following the due date.
Notwithstanding the foregoing, after such termination for so long as
the Administrator, with the written consent of the Company, in fact
continues to perform any one or more of the services contemplated by
this Agreement or any schedule or exhibit hereto, the provisions of
this Agreement, including without limitation the provisions dealing
with indemnification, shall continue in full force and effect.
Compensation due the Administrator and unpaid by the Company upon such
termination shall be immediately due and payable upon and
notwithstanding such termination. The Administrator shall be entitled
to collect from the Company, in addition to the compensation described
in this Schedule A, the amount of all of the Administrator's cash
disbursements for services in connection with the Administrator's
activities in effecting such termination, including without
limitation, the delivery to the Company and/or its designees of the
Company's property, records, instruments and documents.
If, for any reason other than nonrenewal, mutual agreement of the
parties or "cause," as defined above, the Administrator is replaced as
administrator, or if a third party is added to perform all or a part
of the services provided by the Administrator under this Agreement
(excluding any sub-administrator appointed by the Administrator as
provided in Article 7 hereof), then the Company shall make a one-time
cash payment, in consideration of the fee structure and services to be
provided under this Agreement, and not as a penalty, to the
Administrator equal to the balance due the Administrator for the
remainder of the then-current term of this Agreement, assuming for
purposes of calculation of the payment that such balance shall be
based upon the average amount of the Company's assets for the twelve
months prior to the date the Administrator is replaced or a third
party is added.
In the event the Funds are merged into another legal entity in part or
in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the then-
current term of this Agreement, the parties acknowledge and agree that
the liquidated damages provision set forth above shall be applicable
in those instances in which the Administrator is not retained to
provide administration services consistent with this Agreement. The
one-time cash payment referenced above shall be due and payable on the
day prior to the first day in which the Administrator is replaced or a
third party is added.
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The parties further acknowledge and agree that, in the event the
Administrator is replaced, or a third party is added, as set forth
above, (i) a determination of actual damages incurred by the
Administrator would be extremely difficult, and (ii) the liquidated
damages provision contained herein is intended to adequately
compensate the Administrator for damages incurred and is not intended
to constitute any form of penalty.
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