EXHIBIT 9.2
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, executed as of December 18, 1997,
amends and restates in its entirety the Administration Agreement dated December
4, 1995 by and between Xxxxx Funds, Inc., a Minnesota corporation (hereinafter
called the "Company"), with respect to Xxxxx U.S. Emerging Growth Fund, Xxxxx
Opportunity Fund, Xxxxx Twenty-Five Fund and any other series of the Company
(each, a "Fund"), and Princeton Administrators, L.P., a Delaware limited
partnership (hereinafter called the "Administrator"), as amended;
W I T N E S S E T H
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WHEREAS, the Company and Xxxxx Associates, Inc. (the "Investment Adviser")
have entered into or will enter into an Investment Advisory Agreement (the
"Investment Agreement") pursuant to which the Investment Adviser will agree to
act as investment adviser for, and to manage the affairs, business and
investment of the assets of each Fund; and
WHEREAS, the Company desires to retain the Administrator to render certain
administrative services for the Company in the manner and on the terms and
conditions hereafter set forth; and
WHEREAS, the Administrator desires to be retained to perform such services
on said terms and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the Company and the Administrator agree as follows:
1. DUTIES OF THE ADMINISTRATOR. The Company hereby retains the
Administrator to act as administrator of the Company, subject to the supervision
and direction of the Board of Directors of the Company, as hereinafter set
forth. The Administrator shall perform or
arrange for the performance of the following administrative and clerical
services: (i) maintain and keep certain books and records of the Company and
each Fund; (ii) prepare or review and, subject to approval by the Company, file
certain reports and other documents required by U.S. Federal, state (subject to
and contingent upon the Company's transfer agent providing sales and redemption
data to the Administrator via an automated data electronic feed system
compatible with the Administrator's system and acceptable to the Administrator)
and other applicable U.S. laws and regulations to maintain the Company's
registration as an open-end investment company; (iii) coordinate tax related
matters; (iv) respond to inquiries from Fund shareholders; (v) calculate and
publish, or arrange for the calculation and publication of, the net asset value
of each Fund's shares; (vi) oversee, and, as the Board may reasonably request or
deem appropriate, make reports and recommendations to the Board on, the
performance of administrative and professional services rendered to the Company
and each Fund by others, including its custodian and any subcustodian,
registrar, transfer agent, dividend disbursing agent and dividend reinvestment
plan agent, as well as accounting, auditing and other services; (vii) provide
the Company with the services of persons competent to perform the foregoing
administrative and clerical functions; (viii) provide the Company with
administrative offices and data processing facilities; (ix) arrange for payment
of the Company's and each Fund's expenses; (x) consult with the Company's
officers, independent accountants, legal counsel, custodian and any
sub-custodian, registrar, transfer agent, and dividend disbursing agent and
dividend reinvestment plan agent in establishing the accounting policies of the
Company; (xi) prepare such financial information and reports as may be required
by any banks from which the Company borrows funds; and (xii) provide such
assistance to the Investment Adviser, the custodian and any sub-custodian, and
the Company's counsel and auditors as generally may be required to carry on
properly the business and operations of the Company and each Fund. The Company
agrees to cause its transfer agent, custodian and the Investment Adviser to
deliver, on a timely basis, such information to the Administrator as may be
necessary or appropriate for the Administrator's performance of its duties and
responsibilities hereunder, including but not limited to, daily records of
transactions, daily valuation of investments in local currency (which may be
based on information provided by a pricing service) as well as the daily
conversion factor in order for the Administrator to price each Fund in United
States dollars,
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reports of expenses borne by the Company and each Fund, the Company's management
letter to stockholders and such other information necessary for the
Administrator to prepare the above referenced reports and filings, and the
Administrator shall be entitled to rely on the accuracy and completeness of such
information in performing its duties hereunder.
2. EXPENSES OF THE ADMINISTRATOR. The Administrator assumes and shall
pay for maintaining the staff and personnel necessary to perform its obligations
under this Agreement, and shall at its own expense, provide office space,
facilities, equipment and necessary personnel which it is obligated to provide
under paragraph 1 hereof, except that the Company shall pay reasonable travel
expenses of persons who perform administrative, clerical and bookkeeping
functions on behalf of the Company. The Company and the Investment Adviser
assume and shall pay or cause to be paid all other expenses of the Company and
each Fund as set forth in the Investment Agreement. The expenses of legal
counsel and accounting experts retained by the Administrator, after consulting
with the Company's counsel and independent auditors, as may be necessary or
appropriate for the Administrator's performance of its duties and
responsibilities under this Agreement are deemed expenses of, and shall be paid
by, the Company.
3. COMPENSATION OF THE ADMINISTRATOR. For the services rendered to the
Company and each Fund by the Administrator pursuant to this Agreement, the
Company shall pay to the Administrator on the first business day of each
calendar month a fee for the previous month at an annual rate equal to 0.20% of
the Company's net assets up to and including U.S. $600 million and 0.175% of the
Company's net assets in excess of U.S. $600 million. For the purpose of
determining fees payable to the Administrator, the net assets of the Company
shall mean the value of the total assets of the Company, minus the sum of the
accrued liabilities of the Company exclusive of capital stock and surplus. The
value of the Company's net assets shall be computed at the times and in the
manner specified in the Company's Registration Statement on Form N-1A, as
amended from time to time (the "Registration Statement"). Compensation by the
Company of the Administrator shall be pro-rated for any partial month of
service, according to the proportion that such period bears to the full monthly
period and shall
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be payable within seven (7) days after the end of the period to which such
compensation relates.
4. LIMITATION OF LIABILITY OF THE ADMINISTRATOR; INDEMNIFICATION.
(a) The Administrator shall not be liable to any person for any error
of judgment or mistake of law or for any loss arising out of any act or omission
by the Administrator in the performance of its duties hereunder; provided,
however, that nothing herein contained shall be construed to protect the
Administrator against any liability to the Company to which the Administrator
shall otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or by reckless disregard of its
obligations and duties hereunder.
(b) The Administrator may, with respect to questions of law, apply
for and obtain the advice or opinion of legal counsel and, with respect to the
application of generally accepted accounting principles or Federal tax
accounting principles, apply for and obtain the advice or opinion of accounting
experts. The Administrator shall be fully protected with respect to any action
taken or omitted by it in good faith in conformity with such advice or opinion.
(c) The Company agrees to indemnify and hold harmless the
Administrator from and against all charges, claims, expenses (including legal
fees) and liabilities reasonably incurred by the Administrator in connection
with the performance of its duties hereunder, except such as may arise from the
Administrator's willful misfeasance, bad faith, gross negligence in the
performance of its duties or by reckless disregard of its obligations and duties
hereunder. The Company shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification might be
sought hereunder if the Company receives a written affirmation of the
Administrator's good faith belief that the standard of conduct necessary for
indemnification has been met and a written undertaking to reimburse the Company
unless it is subsequently determined that the
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Administrator is entitled to such indemnification and if the Directors of the
Company determine that the facts then known to them would not preclude
indemnification. In addition, at least one of the following conditions must be
met: (A) the Administrator shall provide a security for this undertaking, (B)
the Company shall be insured against losses arising by reason of any lawful
advances, or (C) a majority of a quorum consisting of Directors of the Company
who are neither "interested persons" of the Company (as defined in Section 2(a)
(19) of the 0000 Xxx) nor parties to the proceeding ("Disinterested Non-Party
Directors") or an independent legal counsel in a written opinion, shall
determine, based on a review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that the Administrator
ultimately will be found entitled to indemnification.
(d) As used in this Paragraph 4, the term "Administrator" shall
include any affiliates of the Administrator performing services for the Company
contemplated hereby and directors, partners, officers, agents and employees of
the Administrator and such affiliates.
5. ACTIVITIES OF THE ADMINISTRATOR. The services of the Administrator
under this Agreement are not to be deemed exclusive, and the Administrator and
any person controlled by or under common control with the Administrator shall be
free to render similar services to others.
6. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
become effective as of the date first above written and shall remain in force
until terminated as provided herein. This Agreement may be terminated at any
time, without the payment of any penalty, by the Company on sixty days' written
notice to the Administrator and by the Administrator on ninety days' written
notice to the Company. This Agreement shall automatically terminate in the
event of its assignment.
7. AMENDMENTS OF THIS AGREEMENT. This Agreement may be amended by the
parties hereto only if such amendment is specifically approved by the Board of
Directors of the
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Company and such amendment is set forth in a written instrument executed by each
of the parties hereto.
8. GOVERNING LAW. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of New York as at the
time in effect and the applicable provisions of the 1940 Act. To the extent
that the applicable law of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control.
9. COUNTERPARTS. This Agreement may be executed by the parties hereto in
counterparts and if executed in more than one counterpart, the separate
instruments shall constitute one agreement.
10. NOTICES. Any notice under this Agreement, shall be in writing and
shall be deemed to be received on the earlier of the date actually received or
on the fourth day after the postmark if such notice is mailed first class
postage prepaid. Notice shall be addressed:
(a) if to the Administrator, to: President, Princeton
Administrators, L.P., X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000; or (b) if
to the Fund, to: Chairman, Xxxxx Funds, Inc., 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Agreement as of the day and year first above written.
XXXXX FUNDS, INC.
By:
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Title:
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc., General Partner
By:
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Title:
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