Exhibit (h)(47)
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT, made this __th day of November, 2005, between the
NACM Funds (operating as the Xxxxxxxx-Xxxxxxxxx Institutional Funds) (the
"Trust"), a Delaware business trust, and Xxxxxxxx-Xxxxxxxxx Capital Management
LLC (the "Administrator" or "NACM").
WHEREAS, the Trust is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest
("Shares") in separate series with each such series representing interests in a
separate portfolio of securities and other assets; and each series of the Trust
issues its Shares in up to six classes: Class I, Class II, Class III, Class IV,
Class V, and Class R, with each such class representing interests in the same
portfolio of securities and other assets; and
WHEREAS, the Trust has established series, which are listed in the attached
Schedule A (as amended from time to time), together with any other series
subsequently established by the Trust, with respect to which the Trust desires
to retain the Administrator to render administrative services hereunder, and
with respect to which the Administrator is willing to do so, being herein
collectively referred to also as the "Funds"; and
WHEREAS, pursuant to an Investment Advisory Contract dated _______________,
between the Trust and NACM ("Investment Advisory Contract"), the Trust has
retained NACM to provide investment advisory services with respect to the Funds
in the manner and on the terms set forth therein; and
WHEREAS, the Trust wishes to retain NACM to provide or procure
administrative and other services to the Funds and their shareholders, including
services which may be deemed to constitute distribution-related services with
respect to Class R shares; and
WHEREAS, NACM is willing to furnish and/or to arrange for such services in
the manner and on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. APPOINTMENT. The Trust hereby appoints NACM as the Administrator
to provide or procure the administrative and other services with respect to the
Funds for the period and on the terms set forth in this Agreement, as
supplemented. The Administrator accepts such appointment and agrees during such
period to render the services herein set forth for the compensation herein
provided.
In the event the Trust establishes and designates additional series
with respect to which it desires to retain the Administrator to render or
procure administrative and other services hereunder, it shall notify the
Administrator in writing. If the Administrator is willing to render or procure
such services it shall notify the Trust in writing, whereupon the portfolio
represented by such additional series shall become a Fund hereunder.
2. DUTIES. Subject to the general supervision of the Board of
Trustees, the Administrator shall provide or cause to be furnished all
administrative and other services reasonably necessary for the operation of the
Funds, including, in the case of Class R shares, certain shareholder and
distribution-related services, but not including the investment advisory
services provided pursuant to the Investment Advisory Contract with the Trust or
the distribution services provided by Xxxxxxxx-Xxxxxxxxx Securities LLC ("NAS")
pursuant to its Distribution Contract with the Trust.
(a) ADMINISTRATIVE SERVICES. These services shall include the
following: (i) coordinating matters relating to the operation of the
Funds, including any necessary coordination among the adviser or
advisers to the Funds, the custodian, transfer agent, dividend
disbursing agent, and recordkeeping agent (including pricing and
valuation of the Funds), accountants, attorneys, and other parties
performing services or operational functions for the Funds; (ii)
providing the Funds, at the Administrator's expense, with the services
of a sufficient number of persons competent to perform such
administrative and clerical functions as are necessary to ensure
compliance with federal securities laws as well as other applicable
laws and to provide effective administration of the Funds; (iii)
maintaining or supervising the maintenance by third parties of such
books and records of the Trust and the Funds as may be required by
applicable federal or state law, other than the records and ledgers
maintained under the Investment Advisory Contract; (iv) preparing or
supervising the preparation by third parties of all federal, state,
and local tax returns and reports of the Funds required by applicable
law; (v) preparing, filing, and arranging for the distribution of
proxy materials and periodic reports to shareholders of the Funds as
required by applicable law; (vi) preparing and arranging for the
filing of such registration statements and other documents with the
SEC and other federal and state regulatory authorities as may be
required to register the shares of the Funds and qualify the Trust to
do business or as otherwise required by applicable law; (vii) taking
such other action with respect to the Funds, as may be required by
applicable law, including without limitation the rules and regulations
of the SEC and of state securities commissions and other
regulatory agencies; and (viii) providing the Funds, at the
Administrator's expense, with adequate personnel, office space,
communications facilities, and other facilities necessary for the
Funds' operations as contemplated in this Agreement.
(b) OTHER SERVICES. The Administrator shall also procure on
behalf of the Trust and the Funds, and at the expense of the
Administrator, the following persons to provide services to the Funds:
(i) a custodian or custodians for the Funds to provide for the
safekeeping of the Funds' assets; (ii) a recordkeeping agent to
maintain the portfolio accounting records for the Funds; (iii) a
transfer agent for the Funds; and (iv) a dividend disbursing agent for
the Funds. The Trust may be a party to any agreement with any of the
persons referred to in this Section 2(b).
(c) CLASS R SERVICES. In addition to the Administrator's
responsibilities as specified in Subsections (a) and (b) above,
subject to the approval or consent of the Board of Trustees, the
Administrator, at its own expense, also shall provide, directly or
through persons selected by the Administrator, to the Class R shares
(the "Retail Classes") of the Funds administrative, recordkeeping, and
shareholder services reasonably required by the shareholders of Class
R, which may include some or all of the following services: (i)
transfer agency services reasonably necessary to meet the increased
account activity associated with Class R; (ii) dividend disbursing
services reasonably necessary to meet the increased number of accounts
associated Class R; (iii) preparing and arranging for the distribution
of prospectuses, statements of additional information, proxy
materials, periodic reports to shareholders, and other communications
with Class R shareholders; and (iv) taking such other
actions and providing or procuring such other services with respect to
the Retail Classes as are reasonably necessary or desirable.
(d) SPECIAL CLASS R SERVICES. The Administrator shall provide in
respect of Class R shares (either directly or by procuring through
other entities, including various financial services firms such as
broker-dealers and registered investment advisors ("Service
Organizations")) some or all of the following services and facilities
in connection with direct purchases by shareholders or in connection
with products, programs or accounts offered by such Service
Organizations: (i) facilities for placing orders directly for the
purchase of a Fund's shares and tendering a Fund's Class R shares for
redemption; (ii) advertising with respect to a Fund's Class R shares;
(iii) providing information about the Funds; (iv) providing facilities
to answer questions from prospective investors about the Funds; (v)
receiving and answering correspondence, including requests for
prospectuses and statements of additional information; (vi) preparing,
printing and delivering prospectuses and shareholder reports to
prospective shareholders; (vii) assisting investors in applying to
purchase Class R shares and selecting dividend and other account
options; and (viii) shareholder services provided by a Service
Organization that may include, but are not limited to, the following
functions: receiving, aggregating and processing shareholder orders;
furnishing shareholder sub-accounting; providing and maintaining
elective shareholder services such as check writing and wire transfer
services; providing and maintaining pre-authorized investment plans;
communicating periodically with shareholders; acting as the sole
shareholder of record and nominee for shareholders; maintaining
accounting records for shareholders; answering
questions and handling correspondence from shareholders about their
accounts; issuing confirmations for transactions by shareholders;
performing similar account administrative services; providing such
shareholder communications and recordkeeping services as may be
required for any program for which the Service Organization is a
sponsor that relies on Rule 3a-4 under the 1940 Act; and providing
such other similar services as may reasonably be requested to the
extent the Service Organization is permitted to do so under applicable
statutes, rules, or regulations.
The Administrator shall not be required to provide directly
hereunder any of the foregoing services which may cause the
Administrator to be engaged in the business of effecting transactions
in securities for the account of others, or to induce or attempt to
induce the purchase or sale of any security, but may procure such
services on behalf of the Trust from certain Service Organizations.
The parties hereto acknowledge that the Administrator has entered into
an agreement with its affiliate, NAS, the Trust's principal
underwriter, under which NAS is compensated for certain services
contemplated by this Agreement, including distribution-related
services (the "NAS Fees").
The Administrator and the Trust understand that some or all
of the services described in this subparagraph (d) may be deemed to
represent services primarily intended to result in the sale of Class R
shares ("Special Class R Services"). The Administrator agrees to
present reports as to out-of-pocket expenditures and internal expense
allocations of the Administrator and NAS at least quarterly and in a
manner that permits the Qualified Trustees (hereinafter defined) to
determine that portion of the
fees hereunder which represents reimbursements in respect of Special
Class R Services.
(e) PERSONNEL. The Administrator shall also make its officers
and employees available to the Board of Trustees and officers of the
Trust for consultation and discussions regarding the administration of
the Funds and services provided to the Funds under this agreement.
(f) STANDARDS; REPORTS. In performing these services, the
Administrator:
(i) shall conform with the 1940 Act and all rules
and regulations thereunder, with all other applicable federal and
state laws and regulations, with any applicable procedures
adopted by the Trust's Board of Trustees, and with the provisions
of the Trust's Registration Statement filed on Form N-1A as
supplemented or amended from time to time;
(ii) will make available to the Trust, promptly upon
request, any of the Funds' books and records as are maintained
under this Agreement, and will furnish to regulatory authorities
having the requisite authority any such books and records and any
information or reports in connection with the Administrator's
services under this Agreement that may be requested in order to
ascertain whether the operations of the Trust are being conducted
in a manner consistent with applicable laws and regulations.
(iii) will, in addition to reports required by Section
2(d), regularly report to the Trust's Board of Trustees on the
services provided under this Agreement and will furnish the
Trust's Board of Trustees with respect to the Funds such periodic
and special reports as the Trustees may reasonably request.
3. DOCUMENTATION. The Trust has delivered copies of each of the
following documents to the Administrator and will deliver to it all future
amendments and supplements thereto, if any:
(a) the Trust's Registration Statement as filed with the SEC and
any amendments thereto; and
(b) exhibits, powers of attorney, certificates and any and all
other documents relating to or filed in connection with the
Registration Statement described above.
4. INDEPENDENT CONTRACTOR. The Administrator shall for all purposes
herein be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Board of Trustees of the Trust
from time to time, have no authority to act for or represent the Trust in any
way or otherwise be deemed its agent.
5. COMPENSATION. As compensation for the services rendered under
this Agreement, the Trust shall pay to the Administrator a monthly fee,
calculated as a percentage (on an annual basis) of the average daily value of
the net assets of each of the Funds during the preceding month. The fee rates
applicable to each class of a Fund shall be set forth in a schedule to this
Agreement. The fees payable to the Administrator for all of the Funds shall be
computed and accrued daily and paid monthly. If the Administrator shall serve
for less than any whole month, the foregoing compensation shall be prorated.
6. SPECIAL CLASS R SERVICES: DISTRIBUTION PLAN. To the extent that
this Agreement relates to payments made in connection with the distribution of
the Funds' Class R shares (i.e., Special Class R Services), it shall also
constitute a "distribution plan" and a "related agreement" within the meaning of
Rule 12b-1 under the
1940 Act. As required by said Rule 12b-1 in respect of distribution plans: (a)
the term of this Agreement is as provided in Section 10 below; (b) the
Administrator shall provide to the Trustees of the Trust, and all such Trustees
shall review, at least quarterly, a written report of the amounts expended by
the Trust for Special Class R Services and the purposes for which such
expenditures were made; and (c) this Agreement may be terminated as provided in
Section 10(b) below. As required by said Rule 12b-1 in respect of agreements
related to distribution plans: (a) this Agreement may be terminated as provided
in Section 10 below; and (b) this Agreement may also terminate in the
circumstances described in Section 15(d) below. This Agreement may not be
amended to increase materially the maximum amount specified in Section 5 (i.e.,
the rate of 0.25% per annum) payable out of Class R assets for Special Class R
Services without approval by a majority of the outstanding Class R shares (as
defined in Section 2(a)(42) of the 1940 Act in respect of voting securities) of
a Fund. All material amendments to this Agreement (insofar as the relevant
provision constitutes a part of a distribution plan) must be approved by a
majority of the Qualified Trustees. Insofar as this Agreement constitutes a
distribution plan for Class R shares, its provisions are severable for that
Class.
7. NON-EXCLUSIVITY. It is understood that the services of the
Administrator hereunder are not exclusive, and the Administrator shall be free
to render similar services to other investment companies and other clients.
8. EXPENSES. During the term of this Agreement, the Administrator
will pay all expenses incurred by it in connection with its obligations under
this Agreement, except such expenses as are assumed by the Funds under this
Agreement, and any expenses that are paid under the terms of the Investment
Advisory Contract. The Administrator assumes and shall pay for maintaining its
staff and personnel and shall, at its own expense provide the equipment, office
space, office supplies (including
stationery), and facilities necessary to perform its obligations under this
Agreement. In addition, the Administrator shall bear the following expenses
under this Agreement:
(a) Expenses of all audits by Trust's independent public
accountants;
(b) Expenses of the Trust's transfer agent, registrar, dividend
disbursing agent, and shareholder recordkeeping services;
(c) Expenses of the Trust's custodial services, including any
recordkeeping services provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value
of each Fund's net assets;
(e) Expenses of obtaining Portfolio Activity Reports for each
Fund;
(f) Expenses of maintaining the Trust's tax records;
(g) Costs and/or fees, including legal fees, incident to
meetings of the Trust's shareholders, the preparation, printing and
mailings of prospectuses, notices and proxy statements and reports of
the Trust to its shareholders, the filing of reports with regulatory
bodies, the maintenance of the Trust's existence and qualification to
do business, and the expenses of issuing, redeeming, registering and
qualifying for sale, shares with federal and state securities
authorities;
(h) The Trust's ordinary legal fees, including the legal fees
that arise in the ordinary course of business for a Delaware business
trust registered as an open-end management investment company;
(i) Costs of printing certificates representing shares of the
Trust;
(j) The Trust's pro rata portion of the fidelity bond required
by Section 17(g) of the 1940 Act, or other insurance premiums;
(k) Association membership dues; and
(l) Services of Service Organizations rendered in respect of
Class R shares, to the extent and subject to the conditions set forth
above .
The Trust shall bear the following expenses:
(a) Salaries and other compensation or expenses, including
travel expenses, of any of the Trust's executive officers and
employees, if any, who are not officers, directors, stockholders,
partners or employees of the Administrator or its subsidiaries or
affiliates;
(b) Taxes and governmental fees, if any, levied against the
Trust or any of its Funds;
(c) Brokerage fees and commissions, and other portfolio
transaction expenses incurred for any of the Funds;
(d) Costs, including the interest expenses, of borrowing money;
(e) Fees and expenses, including travel expenses, and fees and
expenses of legal counsel retained for their benefit, of Trustees who
are not officers, employees, partners or shareholders of NACM or its
subsidiaries or affiliates;
(f) Extraordinary expenses, including extraordinary legal
expenses, as may arise including expenses incurred in connection with
litigation, proceedings, other claims and the legal obligations of the
Trust to indemnify its trustees, officers, employees, shareholders,
distributors, and agents with respect thereto;
(g) Organizational and offering expenses of the Trust and the
Funds, and any other expenses which are capitalized in accordance with
generally accepted accounting principles; and
(h) Any expenses allocated or allocable to a specific class of
shares, including fees paid in respect of classes other than Class R
pursuant to a separate administrative service or distribution plan.
9. LIABILITY. The Administrator shall give the Trust the benefit of
the Administrator's best efforts in rendering services under this Agreement. The
Administrator may rely on information reasonably believed by it to be accurate
and reliable. As an inducement for the Administrator's undertaking to render
services under this Agreement, the Trust agrees that neither the Administrator
nor its stockholders, officers, directors, or employees shall be subject to any
liability for, or any damages, expenses or losses incurred in connection with,
any act or omission or mistake in judgment connected with or arising out of any
services rendered under this Agreement, except by reason of willful misfeasance,
bad faith, or gross negligence in performance of the Administrator's duties, or
by reason of reckless disregard of the Administrator's obligations and duties
under this Agreement. This provision shall govern only the liability to the
Trust of the Administrator and that of its stockholders, officers, directors,
and employees, and shall in no way govern the liability to the Trust or the
Administrator or provide a defense for any other person including persons that
provide services for the Funds as described in Section 2(b), (c) or (d) of this
Agreement.
10. TERM AND CONTINUATION. This Agreement shall take effect as of the
date indicated above, and shall remain in effect, unless sooner terminated as
provided herein, for one year from such date, and shall continue thereafter on
an annual basis with respect to each Fund provided that such continuance is
specifically approved at least annually (a) by the vote of a majority of the
Board of Trustees of the Trust, and (b) by the
vote of a majority of the Board of Trustees of the Trust who are not parties to
this Agreement or "interested persons" (as defined in the 0000 Xxx) of the Trust
or the Administrator, and who have no direct or indirect financial interest in
the operation of this agreement or any agreement related to Special Class R
Services ("Qualified Trustees"), cast in person at a meeting called for the
purpose of voting on such approval. Failure of the Qualified Trustees to renew
this Agreement and/or its termination by shareholder vote, assignment, or
otherwise, shall not preclude the Board of Trustees from approving a substitute
agreement in the manner provided under applicable law.
(a) Except as provided in Section 10(b) below, this Agreement
may be terminated:
(i) by the Trust at any time with respect to the
services provided by the Administrator, without the payment of
any penalty, by vote of a majority of the entire Board of
Trustees of the Trust or by a vote of a majority of the
outstanding voting shares of the Trust or, with respect to a
particular Fund or class, by vote of a majority of the
outstanding voting shares of such Fund or class, on 60 days'
written notice to the Administrator;
(ii) at the expiration of the one-year period
commencing on the date of this Agreement, by the Administrator at
any time, without the payment of any penalty, upon 60 days'
written notice to the Trust.
(b) insofar as it relates to Class R shares of any Fund(s), at
any time, without the payment of any penalty, by a majority of the
Qualified Trustees or by vote of a majority of the outstanding Class R
shares.
11. USE OF NAME. It is understood that the names "Xxxxxxxx-Xxxxxxxxx
Capital Management LLC" or "NACM" or any derivative thereof or logo associated
with
those names are the valuable property of NACM and its affiliates, and that the
right of the Trust and/or the Funds to use such names (or derivatives or logos)
shall be governed by the Investment Advisory Contract.
12. NOTICES. Notices of any kind to be given to the Administrator by
the Trust shall be in writing and shall be duly given if mailed or delivered to
the General Counsel at 000 Xxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, or to
such other address or to such individual as shall be specified by the
Administrator. Notices of any kind to be given to the Trust by the Administrator
shall be in writing and shall be duly given if mailed or delivered to The
President or Secretary, 000 Xxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, or to
such other address or to such individual as shall be specified by the Trust.
13. TRUST OBLIGATION. A copy of the Trust's Declaration of Trust is
on file with the Secretary of the State of Delaware and notice is hereby given
that the Agreement has been executed on behalf of the Trust by a trustee of the
Trust in his or her capacity as trustee and not individually. The obligations of
this Agreement shall only be binding upon the assets and property of each Fund
and shall not be binding upon any trustee, officer, or shareholder of the Trust
individually.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
15. MISCELLANEOUS. (a) This Agreement shall be governed by the laws
of California, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Investment Advisers Act of 1940, or any
rule or order of the SEC thereunder.
(b) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby and, to this extent, the
provisions of this
Agreement shall be deemed to be severable. To the extent that any provision
of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise with regard to any party, hereunder, such
provisions with respect to other parties hereto shall not be affected
thereby.
(c) The captions in this Agreement are included for convenience
only and in no way define any of the provisions hereof or otherwise affect
their construction or effect.
(d) This Agreement may not be assigned by the Trust or the
Administrator without the consent of the other party. This Agreement will
terminate with respect to the Class R shares in the event of its
"assignment" (as defined in the 1940 Act).
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below on the day and year first above
written.
NACM FUNDS
By:
------------------------
Title: President
XXXXXXXX-XXXXXXXXX
CAPITAL MANAGEMENT LLC
By:
------------------------
Title: General Counsel
ADMINISTRATION AGREEMENT
XXXXXXXX-XXXXXXXXX INSTITUTIONAL FUNDS
I CLASS (%) - FEE RATES
CORE OTHER
FUND EXPENSES EXPENSES TOTAL
---- -------- -------- -----
US Mini Cap Growth 0.20% 0.36% 0.56%
US Emerging Growth 0.20% 0.25% 0.45%
US Small Cap Value 0.20% 0.35% 0.55%
US Large Cap Value 0.20% 0.16% 0.36%
US Systematic Large Cap Growth 0.20% 0.47% 0.67%
US Systematic XXXX Growth 0.20% 0.43% 0.63%
US Convertible 0.12% 0.35% 0.47%
Global Select 0.15% 0.35% 0.50%
International Growth 0.50% 0.39% 0.89%
International Growth Opportunities 0.30% 0.42% 0.72%
International All Cap 0.20% 0.10% 0.30%
Emerging Markets Opportunities 0.20% 0.45% 0.65%
International Systematic 0.20% 0.30% 0.50%
US High Yield 0.10% 0.13% 0.23%
II CLASS (%) - FEE RATES
CORE OTHER
FUND EXPENSES EXPENSES TOTAL
---- -------- -------- -----
US Mini Cap Growth - 0.31% 0.31%
US Emerging Growth 0.05% 0.25% 0.30%
US Small Cap Value 0.10% 0.35% 0.45%
US Large Cap Value 0.05% 0.16% 0.21%
US Systematic Large Cap Growth 0.05% 0.47% 0.52%
US Systematic XXXX Growth 0.05% 0.38% 0.43%
US Convertible 0.07% 0.30% 0.37%
Global Select 0.10% 0.35% 0.45%
International Growth 0.10% 0.39% 0.49%
International Growth Opportunities 0.15% 0.42% 0.57%
International All Cap 0.05% 0.10% 0.15%
Emerging Markets Opportunities 0.05% 0.45% 0.50%
International Systematic 0.05% 0.30% 0.35%
US High Yield 0.05% 0.13% 0.18%
ADMINISTRATION AGREEMENT
XXXXXXXX-XXXXXXXXX INSTITUTIONAL FUNDS
PROPOSED FOR 1/1/2006
III CLASS (%) - FEE RATES
CORE OTHER
FUND EXPENSES EXPENSES TOTAL
---- -------- -------- -----
US Mini Cap Growth 0.05% 0.36% 0.41%
International Growth Opportunities 0.10% 0.42% 0.52%
IV CLASS (%) - FEE RATES
CORE OTHER
FUND EXPENSES EXPENSES TOTAL
---- -------- -------- -----
International Growth Opportunities 0.05% 0.42% 0.47%
R CLASS (%) - FEE RATES
CORE OTHER
FUND EXPENSES EXPENSES 12b-1 FEE TOTAL
---- -------- -------- --------- -----
US Emerging Growth 0.20% 0.25% 0.25% 0.70%
US Small Cap Value 0.20% 0.35% 0.25% 0.80%
US Large Cap Value 0.20% 0.16% 0.25% 0.61%
US Systematic Large Cap Growth 0.20% 0.47% 0.25% 0.92%
US Systematic XXXX Growth 0.20% 0.43% 0.25% 0.88%
Global Select 0.15% 0.35% 0.25% 0.75%
International Growth 0.50% 0.39% 0.25% 1.14%
International All-Cap 0.20% 0.10% 0.25% 0.55%
Emerging Markets Opportunities 0.20% 0.45% 0.25% 0.90%
International Systematic 0.20% 0.30% 0.25% 0.75%
US High Yield 0.10% 0.13% 0.25% 0.48%
