ADMINISTRATION AGREEMENT
THIS
AGREEMENT is made as of this 18th day of April, 2005, by and between THE
DESTINATION FUNDS (the "Trust"), an Ohio business trust having its principal
place of business at Three Ygnacio Center, 0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000, and ULTIMUS FUND SOLUTIONS, LLC ("Ultimus"), a
limited liability company organized under the laws of the State of Ohio and
having its principal place of business at 000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxx 00000.
WHEREAS,
the Trust is an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS,
the Trust desires that Ultimus provide certain administrative services for each
series of the Trust, listed on Schedule A attached hereto and made part of this
Agreement, as such Schedule A may be amended from time to time (individually
referred to herein as the "Portfolio" and collectively as the "Portfolios");
and
WHEREAS,
Ultimus is willing to perform such services on the terms and conditions set
forth in this Agreement;
NOW,
THEREFORE, in consideration of the mutual premises and covenants herein set
forth, the parties agree as follows:
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1.
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RETENTION
OF ULTIMUS.
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The Trust
hereby retains Ultimus to act as the administrator of the Trust and to furnish
the Trust with the services as set forth below. Ultimus hereby
accepts such employment to perform such duties.
Ultimus
shall provide the Trust with regulatory reporting services; shall provide all
necessary office space, equipment, personnel, compensation and facilities for
handling the affairs of the Trust; and shall provide such other services as the
Trust may request that Ultimus perform consistent with its obligations under
this Agreement. Without limiting the generality of the foregoing,
Ultimus shall:
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(a)
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calculate
Trust expenses and administer all disbursements for the Trust, and as
appropriate compute the Trust's yields, total return, expense ratios and
portfolio turnover rate;
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(b)
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prepare
and coordinate, in consultation with Trust counsel, the preparation of
prospectuses, statements of additional information, registration
statements and proxy materials;
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(c)
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prepare
such reports, notice filing forms and other documents (including reports
regarding the sale and redemption of shares of the Trust as may be
required in order to comply with federal and state securities law) as may
be necessary or desirable to make notice filings relating to the Trust's
shares with state securities authorities, monitor the sale of Trust shares
for compliance with state securities laws, and file with the appropriate
state securities authorities compliance filings as
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may
be necessary or convenient to enable the Trust to make a continuous
offering of its shares;
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(d)
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develop
and prepare, with the assistance of the Trust'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 Trust shareholders, and supervise
and facilitate the proxy solicitation process for all shareholder
meetings, including the tabulation of shareholder
votes;
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(e)
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administer
contracts on behalf of the Trust with, among others, the Trust's
investment adviser, distributor, custodian, transfer agent and fund
accountant;
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(f)
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supervise
the Trust's transfer agent with respect to the payment of dividends and
other distributions to
shareholders;
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(g)
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calculate
performance data of the Trust for dissemination to information services
covering the investment company
industry;
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(h)
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file all of the Trust's tax
returns, and prepare and mail annual Form 1099, Form W-2P and Form
5498 to appropriate shareholders, with a copy to the Internal Revenue
Service;
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(i)
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assist
with the layout and printing of prospectuses and supplements thereto, and
assist with and coordinate layout and printing of the Trust's semi-annual
and annual reports to shareholders;
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(j)
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provide
individuals reasonably acceptable to the Trust's Trustees to serve as
officers of the Trust, who will be responsible for the management of
certain of the Trust's affairs as determined by the
Trustees;
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(k)
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advise
the Trust and its Trustees on matters concerning the Trust and its affairs
including making recommendations regarding dividends and
distributions;
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(l)
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obtain
and keep in effect fidelity bonds and directors and officers/errors and
omissions insurance policies for the Trust in accordance with the
requirements of the 1940 Act and as such bonds and policies are approved
by the Trustees;
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(m)
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monitor
and advise the Trust and its Portfolios on their registered investment
company status under the Internal Revenue Code of
1986;
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(n)
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monitor
and advise the Trust and its Portfolios on compliance with applicable
limitations as imposed by the 1940 Act and the rules and regulations
thereunder or set forth in the Trust's or any Portfolio’s then current
Prospectus or Statement of Additional
Information;
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(o)
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provide
such internal legal services as are requested by the Trust including, but
not limited to, the coordination of meetings and preparation of materials
for the quarterly and special meetings of the Trustees and meetings of the
Trust’s shareholders;
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(p)
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cooperate
with, and take all reasonable actions in the performance of its duties
under this Agreement to ensure that all necessary information is made
available to,
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the
Trust's independent public accountants in connection with the preparation
of any audit or report requested by the
Trust;
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(q)
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cooperate
with, and take all reasonable actions in the performance of its duties
under this Agreement to ensure that the necessary information is made
available to the Securities and Exchange Commission (the “SEC”) or any
other regulatory authority in connection with any regulatory audit of the
Trust or the investment adviser of the
Trust;
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(r)
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perform
all administrative services and functions of the Trust to the extent
administrative services and functions are not provided to the Trust by
other agents of the Trust;
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(s)
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prepare
and file with the SEC the semi-annual report for the Trust on Form N-SAR
and all required notices pursuant to Rule 24f-2 under the 1940 Act;
and
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(t)
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furnish
advice and recommendations with respect to other aspects of the business
and affairs of the Trust as the Trust and Ultimus shall determine
desirable.
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2.
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SUBCONTRACTING.
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Ultimus
may, at its expense and, upon written notice to the Trust, subcontract with any
entity or person concerning the provision of the services contemplated
hereunder; provided, however, that Ultimus shall not be relieved of any of its
obligations under this Agreement by the appointment of such subcontractor and
provided further, that Ultimus shall be responsible, to the extent provided in
Section 7 hereof, for all acts of such subcontractor as if such acts were its
own.
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3.
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ALLOCATION
OF CHARGES AND EXPENSES.
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Ultimus
shall furnish at its own expense the executive, supervisory and clerical
personnel necessary to perform its obligations under this Agreement. Ultimus
shall also pay all compensation, if any, of officers of the Trust who are
affiliated persons of Ultimus.
The Trust
assumes and shall pay or cause to be paid all other expenses of the Trust 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 and/or qualification of the shares under federal and state
securities laws, fees and out-of-pocket expenses of Trustees who are not
affiliated persons of Ultimus or the investment adviser to the Trust, insurance
premiums, interest, brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of investment advisers to the
Trust.
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4.
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COMPENSATION
OF ULTIMUS.
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For the
services to be rendered, the facilities furnished and the expenses assumed by
Ultimus pursuant to this Agreement, the Trust shall pay to Ultimus compensation
at an annual rate specified in Schedule B attached hereto. Such compensation
shall be calculated and accrued daily, and paid to Ultimus monthly. The Trust
shall also reimburse Ultimus for its reasonable out-
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of-pocket
expenses, including but not limited to the travel and lodging expenses incurred
by officers and employees of Ultimus 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, Ultimus' 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 Ultimus’
compensation for the preceding month shall be made promptly.
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5.
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EFFECTIVE
DATE.
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This
Agreement shall become effective with respect to a Portfolio as of the date
first written above (or, if a particular Portfolio is not in existence on that
date, on the date such Portfolio commences operation) (the "Effective
Date").
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6.
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TERM
OF THIS AGREEMENT.
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The term
of this Agreement shall continue in effect, unless earlier terminated by either
party hereto as provided hereunder, for a period of two
years. Thereafter, unless otherwise terminated as provided herein,
this Agreement shall be renewed automatically for successive one-year
periods.
This
Agreement may be terminated without penalty: (i) by provision of sixty (60)
days’ written notice; (ii) by mutual agreement of the parties; or (iii) for
"cause" (as defined herein) upon the provision of thirty (30) days’ advance
written notice by the party alleging cause.
For
purposes of this Agreement, "cause" shall mean: (i) a material breach of this
Agreement that has not been remedied within thirty (30) days following written
notice of such breach from the non-breaching party, (ii) a series of negligent
acts or omissions or breaches of this Agreement which, in the aggregate,
constitute in the reasonable judgment of the Trust, a serious failure to perform
satisfactorily Ultimus' obligations hereunder; (iii) 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; or (iv) 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 the
modification or alteration of the rights of creditors.
Notwithstanding
the foregoing, after such termination for so long as Ultimus, with the written
consent of the Trust, 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 Ultimus and unpaid by the Trust upon such
termination shall be immediately due and payable upon and notwithstanding such
termination. Ultimus shall be entitled to collect from the Trust, in
addition to the compensation described in Schedule B, the amount of all of
Ultimus' cash disbursements for services in connection with Ultimus' activities
in effecting such termination, including without limitation, the delivery to the
Trust and/or its designees of the Trust's property, records, instruments and
documents.
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7.
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STANDARD
OF CARE.
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The
duties of Ultimus shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against Ultimus hereunder.
Ultimus shall use its best efforts in the performance of its duties hereunder
and act in good faith in performing the services provided for under this
Agreement. Ultimus shall be liable for any damages arising directly or
indirectly out of Ultimus' failure to perform its duties under this Agreement to
the extent such damages arise directly or indirectly out of Ultimus' willful
misfeasance, bad faith, negligence in the performance of its duties, or reckless
disregard of it obligations and duties hereunder. (As used in this Article 7,
the term "Ultimus" shall include directors, officers, employees and other agents
of Ultimus as well as Ultimus itself.)
Without
limiting the generality of the foregoing or any other provision of this
Agreement, (i) Ultimus shall not be liable for losses beyond its reasonable
control, provided that Ultimus has acted in accordance with the standard of care
set forth above; and (ii) Ultimus shall not be liable for the validity or
invalidity or authority or lack thereof of any instruction, notice or other
instrument that Ultimus reasonably believes to be genuine and to have been
signed or presented by a duly authorized representative of the Trust (other than
an employee or other affiliated persons of Ultimus who may otherwise be named as
an authorized representative of the Trust for certain purposes).
Ultimus
may apply to the Trust at any time for instructions and may consult with counsel
for the Trust or its own counsel and with accountants and other experts with
respect to any matter arising in connection with Ultimus' duties hereunder, and
Ultimus 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 reasonable opinion
of such counsel, accountants or other experts qualified to render such
opinion.
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8.
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INDEMNIFICATION.
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The Trust
agrees to indemnify and hold harmless Ultimus from and against any and all
actions, suits, claims, losses, damages, costs, charges, reasonable counsel fees
and disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) (collectively, "Losses") arising directly or indirectly
out of any action or omission to act which Ultimus takes (i) at any request or
on the direction of or in reliance on the reasonable advice of the Trust, (ii)
upon any instruction, notice or other instrument that Ultimus reasonably
believes to be genuine and to have been signed or presented by a duly authorized
representative of the Trust (other than an employee or other affiliated person
of Ultimus who may otherwise be named as an authorized representative of the
Trust for certain purposes) or (iii) on its own initiative, in good faith and in
accordance with the standard of care set forth herein, in connection with the
performance of its duties or obligations hereunder; provided, however that the
Trust shall have no obligation to indemnify or reimburse Ultimus under this
Article 8 to the extent that Ultimus is entitled to reimbursement or
indemnification for such Losses under any liability insurance policy described
in this Agreement or otherwise.
Ultimus
shall not be indemnified against or held harmless from any Losses arising
directly or indirectly out of Ultimus' own willful misfeasance, bad faith,
negligence in the performance of its duties, or reckless disregard of its
obligations and duties hereunder. (As used in this Article 8, the term "Ultimus"
shall include directors, officers, employees and other agents of Ultimus as well
as Ultimus itself.)
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9.
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RECORD
RETENTION AND CONFIDENTIALITY.
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Ultimus
shall keep and maintain on behalf of the Trust all books and records which the
Trust and Ultimus is, or may be, required to keep and maintain pursuant to any
applicable statutes, rules and regulations, including without limitation Rules
31a-1 and 31a-2 under the 1940 Act, relating to the maintenance of books and
records in connection with the services to be provided hereunder. Ultimus
further agrees that all such books and records shall be the property of the
Trust and to make such books and records available for inspection by the Trust
or by the SEC at reasonable times and otherwise to keep confidential all books
and records and other information relative to the Trust and its shareholders;
except when requested to divulge such information by duly-constituted
authorities or court process. If Ultimus is requested or required to
disclose any confidential information supplied to it by the Trust, Ultimus
shall, unless prohibited by law, promptly notify the Trust of such request(s) so
that the Trust may seek an appropriate protective order.
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10.
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FORCE
MAJEURE.
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Ultimus
assumes no responsibility hereunder, and shall not be liable, for any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control, including acts of civil or military authority, national
emergencies, fire, flood, catastrophe, acts of God, insurrection, war, riots or
failure of the mails, transportation, communication or power
supply.
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11.
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RIGHTS
OF OWNERSHIP; RETURN OF RECORDS.
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All
records and other data except computer programs and procedures developed to
perform services required to be provided by Ultimus are the exclusive property
of the Trust and all such records and data will be furnished to the Trust in
appropriate form as soon as practicable after termination of this Agreement for
any reason. Ultimus may at its option at any time, and shall promptly
upon the Trust's demand, turn over to the Trust and cease to retain Ultimus'
files, records and documents created and maintained by Ultimus pursuant to this
Agreement which are no longer needed by Ultimus in the performance of its
services or for its legal protection. If not so turned over to the
Trust, such documents and records will be retained by Ultimus for six years from
the year of creation. At the end of such six-year period, such records and
documents will be turned over to the Trust unless the Trust authorizes in
writing the destruction of such records and documents.
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12.
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REPRESENTATIONS
OF THE TRUST.
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The Trust
certifies to Ultimus that: (1) as of the close of business on the
Effective Date, each Portfolio that is in existence as of the Effective Date has
authorized unlimited shares, and (2) this Agreement has been duly authorized by
the Trust and, when executed and delivered by the Trust, will constitute a
legal, valid and binding obligation of the Trust, enforceable against the Trust
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
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13.
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REPRESENTATIONS
OF ULTIMUS.
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Ultimus
represents and warrants that: (1) it will maintain a disaster
recovery plan and procedures including provisions for emergency use of
electronic data processing equipment, which is reasonable in light of the
services to be provided, and it will, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions (Ultimus shall have no
liability with respect to the loss of data or service interruptions caused by
equipment failure, provided it maintains such plans and procedures); (2) this
Agreement has been duly authorized by Ultimus and, when executed and delivered
by Ultimus, will constitute a legal, valid and binding obligation of Ultimus,
enforceable against Ultimus in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties; (3) it is
duly registered with the appropriate regulatory agency as a transfer agent and
such registration will remain in full force and effect for the duration of this
Agreement; and (4) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
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14.
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INSURANCE.
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Ultimus
shall furnish the Trust with pertinent information concerning the professional
liability insurance coverage that it maintains. Such information
shall include the identity of the insurance carrier(s), coverage levels and
deductible amounts. Ultimus shall notify the Trust should any of its
insurance coverage be canceled or reduced. Such notification shall
include the date of change and the reasons therefor. Ultimus shall notify the
Trust of any material claims against it with respect to services performed under
this Agreement, whether or not they may be covered by insurance, and shall
notify the Trust from time to time as may be appropriate of the total
outstanding claims made by Ultimus under its insurance coverage.
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15.
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INFORMATION
TO BE FURNISHED BY THE TRUST.
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The Trust
has furnished to Ultimus the following:
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(a)
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Copies
of the Agreement and Declaration of Trust (the “Declaration of Trust”) and
of any amendments thereto, certified by the proper official of the state
in which such document has been
filed.
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(b)
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Copies
of the following documents:
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(1)
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The
Trust's By-Laws and any amendments thereto;
and
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(2)
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Certified
copies of resolutions of the Trustees covering the approval of this
Agreement, authorization of a specified officer of the Trust to execute
and deliver this Agreement and authorization for specified officers of the
Trust to instruct Ultimus
thereunder.
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(c)
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A
list of all the officers of the Trust, together with specimen signatures
of those officers who are authorized to instruct Ultimus in all
matters.
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(d)
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Copies
of the Prospectus and Statement of Additional Information for each
Portfolio.
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16.
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AMENDMENTS
TO AGREEMENT.
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This
Agreement, or any term thereof, may be changed or waived only by written
amendment signed by the party against whom enforcement of such change or waiver
is sought.
For
special cases, the parties hereto may amend such procedures set forth herein as
may be appropriate or practical under the circumstances, and Ultimus may
conclusively assume that any special procedure which has been approved by the
Trust does not conflict with or violate any requirements of its Declaration of
Trust or then current prospectuses, or any rule, regulation or requirement of
any regulatory body.
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17.
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COMPLIANCE
WITH LAW.
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Except
for the obligations of Ultimus otherwise set forth herein, the Trust assumes
full responsibility for the preparation, contents and distribution of each
prospectus of the Trust as to compliance with all applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), the 1940 Act and any
other laws, rules and regulations of governmental authorities having
jurisdiction. The Trust represents and warrants that no shares of the Trust will
be offered to the public until the Trust's registration statement under the
Securities Act and the 1940 Act has been declared or becomes
effective.
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18.
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NOTICES.
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Any
notice provided hereunder shall be sufficiently 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 Trust, at Three Ygnacio Center, 0000 Xxxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxxxxx;
and if to Ultimus, at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000,
Attn: Xxxxxx X. Xxxxxx; or at such other address as such party may from time to
time specify in writing to the other party pursuant to this
Section.
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19.
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ASSIGNMENT.
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This
Agreement and the rights and duties hereunder shall not be assignable by either
of the parties hereto except by the specific written consent of the other
party. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
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20.
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GOVERNING
LAW.
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This
Agreement shall be construed in 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.
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21.
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LIMITATION
OF LIABILITY.
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A copy of
the Declaration of Trust is on file with the Secretary of the State of Ohio, and
notice is hereby given that this instrument is executed on behalf of the
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees, officers or shareholders individually but
are binding only upon the assets and property of the
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Trust (or
if the matter relates only to a particular Portfolio, that Portfolio), and the
Ultimus shall look only to the assets of the Trust, or the particular Portfolio,
for the satisfaction of such obligations.
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22.
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MULTIPLE
ORIGINALS.
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This
Agreement may be executed in two or 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 caused this Agreement to be duly
executed all as of the day and year first above written.
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By:
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/s/Xxxxxxx
X. Xxxxxxxxx
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Title:
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President
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ULTIMUS
FUND SOLUTIONS, LLC
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By:
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/s/Xxxxxx
X. Xxxxxx
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Title:
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President
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SCHEDULE
A
TO
THE ADMINISTRATION AGREEMENT BETWEEN
AND
ULTIMUS
FUND SOLUTIONS, LLC
FUND
PORTFOLIOS
Destination
Select Equity Fund
10
Amended: January 1,
2009
SCHEDULE
B
TO
THE ADMINISTRATION AGREEMENT BETWEEN
AND
ULTIMUS
FUND SOLUTIONS, LLC
FEES
Pursuant to Article 4, in consideration
of services rendered and expenses assumed pursuant to this Agreement, the Trust
will pay Ultimus on the first business day after the end of each month, or at
such time(s) as Ultimus shall request and the parties hereto agree, a fee
computed with respect to each Portfolio as follows:
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Average
Daily Net Assets
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Administration
Fee
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Up
to $50 million
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.150%
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$50
to $100 million
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.125%
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$100
to $250 million
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.100%
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$250
to $500 million
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.075%
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In
excess of $500 million
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.050%
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The fee will be subject to a monthly
minimum of $2,000 with respect to each Portfolio.
The above fee will be discounted by 20%
for the period January 1, 2009 to December 31, 2009.
OUT-OF-POCKET
EXPENSES:
In addition to the above fees, the
Trust will reimburse Ultimus for certain out-of-pocket expenses incurred on the
Trust’s behalf, including but not limited to, travel expenses to attend Board
meetings and any other expenses approved by the Trust. The Trust will
be responsible for its normal operating expenses, such as federal and state
filing fees, insurance premiums, typesetting and printing of the Trust’s public
documents, and fees and expenses of the Trust’s other vendors and
providers.
CHIEF
COMPLIANCE OFFICER:
The terms of this Agreement do not
provide for Ultimus to furnish an individual to serve as the Trust’s Chief
Compliance Officer.
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