Exhibit (9)
ADMINISTRATIVE SERVICE AGREEMENT
AGREEMENT made as of the 19th of April, 1994, by and between
MIMLIC Small Company Fund, Inc., a Minnesota corporation, having its
principal office and place of business at 000 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxx,
Xxxxxxxxx, 00000, (the "Fund"), and The Minnesota Mutual Life Insurance
Company, a Minnesota corporation having its principal office and place of
business at 000 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxx, Xxxxxxxxx, 00000, ("Minnesota
Mutual").
WHEREAS, the Fund desires to engage Minnesota Mutual to provide
to the Fund accounting, audit, legal and other administrative services, and
Minnesota Mutual desires to provide such services;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT; DUTIES OF MINNESOTA MUTUAL
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints Minnesota Mutual, and
Minnesota Mutual hereby agrees to provide certain accounting, auditing,
legal and other administrative services to the Fund.
1.02 Minnesota Mutual agrees that it will perform such services
as are required by the Fund, including, without limitation, the following:
(a) register or qualify, and maintain the registrations or
qualifications, of the Fund and its Shares under state or other securities
laws.
(b) calculate the Fund's net asset value per Share at such times
and in such manner as specified in the Fund's current prospectus and statement
of additional information and at such other times as the parties hereto may
from time to time agree upon;
(c) upon the Fund's distribution of dividends and capital gains,
calculate the amount of such dividends and capital gains to be received per
Share and calculate the number of additional Shares to be received by each
Shareholder, other than any shareholder who has elected to receive such
dividends and capital gains in cash;
(d) prepare and maintain all accounting records required by the
Fund, including a general ledger;
(e) prepare the Fund's annual and semi-annual financial
statements;
(f) prepare and file the Fund's income, excise and other tax
returns;
(g) provide audit assistance in conjunction with the Fund's
independent auditors;
(h) provide such legal services as the parties hereto may from
time to time agree upon, including without limitation preparation and filing
with the Securities and Exchange Commission of the annual or more frequent
post-effective amendments to the Fund's registration statement and the Fund's
proxy materials; and
(i) provide such other administrative services as the parties
hereto may from time to time agree upon.
Procedures applicable to certain of these services may be
established from time to time by agreement between the Fund and Minnesota
Mutual.
Article 2 COMPENSATION FOR SERVICES
2.01 In payment for the administrative services to be performed
by Minnesota Mutual hereunder, the Fund shall pay to Minnesota Mutual a fee
in accordance with Schedule A hereto.
2.02 In addition to the fee paid under Section 2.01 above, the
Fund will reimburse Minnesota Mutual for out-of-pocket expenses or advances
incurred by Minnesota Mutual in connection with Minnesota Mutual's
performance of services hereunder.
Article 3 REPRESENTATIONS AND WARRANTIES OF MINNESOTA MUTUAL
Minnesota Mutual represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in
good standing under the laws of the State of Minnesota.
3.02 It is duly qualified to carry on its business in the
State of Minnesota.
3.03 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
Article 4 REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to Minnesota Mutual that:
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4.01 It is a corporation duly organized and existing and in
good standing under the laws of Minnesota.
4.02 It is empowered under applicable laws and by its Articles
of Incorporation and Bylaws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Articles of
Incorporation and Bylaws have been taken to authorize it to enter into and
perform this Agreement.
4.04 It is an open-end and diversified management investment
company registered under the Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with
respect to all Shares of the Fund being offered for sale.
Article 5 INDEMNIFICATION
5.01 Minnesota Mutual shall not be responsible for, and the
Fund shall indemnify and hold Minnesota Mutual harmless from and against, any
and all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to:
(a) All actions of Minnesota Mutual or its agents or
subcontractors required to be taken pursuant to this Agreement, provided that
such actions are taken in good faith without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Fund's lack of good faith, negligence
or willful misconduct or which arise out of the breach of any representation
or warranty of the Fund hereunder.
(c) The reliance on or use by Minnesota Mutual or its agents
or subcontractors of information, records and documents which (i) are received
by Minnesota Mutual or its agents or subcontractors and furnished to it by or
on behalf of the Fund, and (ii) have been prepared and/or maintained by the
Fund or any other person or firm on behalf of the Fund.
(d) The reliance on, or the carrying out by Minnesota Mutual or
its agents or subcontractors of any instructions or requests of the Fund.
5.02 Minnesota Mutual shall indemnify and hold the Fund
harmless from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributable
to any action or failure or omission to act by Minnesota Mutual as a result
of Minnesota Mutual's lack of good faith, negligence or willful misconduct.
5.03 At any time Minnesota Mutual may apply to any officer of
the Fund for instructions, and may consult with legal counsel with respect to
any matter arising in connection
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with the services to be performed by Minnesota Mutual under this Agreement,
and Minnesota Mutual and its agents or subcontractors shall not be liable and
shall be indemnified by the Fund for any action taken or omitted by it in
reliance upon such instructions or in good faith reliance upon the opinion of
such counsel. Minnesota Mutual, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or document furnished by
or on behalf of the Fund, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided Minnesota Mutual or its agents or
subcontractors by machine readable input, telex, CRT data entry or other
similar means authorized by the Fund, and shall not be held to have notice of
any change of authority of any person, until receipt of written notice
thereof from the Fund. Minnesota Mutual, its agents and subcontractors shall
also be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of the
officers of the Fund, and the proper countersignature of any current or
former transfer agent or registrar, or of a co-transfer agent or co-registrar.
5.04 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond its
control, or other causes reasonably beyond its control, such party shall not
be liable for damages to the other for any damages resulting from such
failure to perform or otherwise from such causes.
5.05 Neither party to this Agreement shall be liable to the
other party for consequential damages under any provision of this Agreement
or for any act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in
this Article 5 shall apply, upon the assertion of a claim for which either
party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments
concerning such claim. The party who may be required to indemnify shall have
the option to participate with the party seeking indemnification in the
defense of such claim. The party seeking indemnification shall in no case
confess any claim or make any compromise in any case in which the other party
may be required to indemnify it except with the other party's prior written
consent.
Article 6 COVENANTS OF THE FUND AND MINNESOTA MUTUAL
6.01 Minnesota Mutual shall keep records relating to the
services to be performed hereunder, in the form and manner as it may deem
advisable. To the extent required by Section 31 of the Investment Company
Act of 1940, as amended, and the Rules thereunder, Minnesota Mutual agrees
that all such records prepared or maintained by Minnesota Mutual relating to
the services to be performed by Minnesota Mutual hereunder are the property
of the Fund and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly to
the Fund on and in accordance with its request.
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6.02 Minnesota Mutual and the Fund agree that all books,
records, information and data pertaining to the business of the other party
which are exchanges or received pursuant to the negotiation or the carrying
out of this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
6.03 In the case of any requests or demands for the inspection
of the Shareholder records of the Fund, Minnesota Mutual will endeavor to
notify the Fund and to secure instructions from an authorized officer of the
Fund as to such inspection. Minnesota Mutual reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the Shareholder
records to such person.
Article 7 EFFECTIVE DATE, DURATION AND TERMINATION OF AGREEMENT
7.01 The effective date of this Agreement is set forth in the
first paragraph of this Agreement. Unless sooner terminated as hereinafter
provided, this Agreement shall continue in effect until the next annual
meeting of the Fund's shareholders and from year to year thereafter, but only
so long as such continuance is specifically approved at least annually by the
Board of Directors of the Fund, including the specific approval of a majority
of the directors who are not interested persons of the Fund, MIMLIC Asset
Management Company ("MIMLIC Asset"), investment adviser to the Fund, or
MIMLIC Sales Corporation ("MIMLIC Sales"), the underwriter of the Fund's
Shares, cast in person at a meeting called for the purpose of voting on such
approval.
7.02 This Agreement may be terminated at any time without the
payment of any penalty by the vote of the Board of Directors of the Fund, or
by Minnesota Mutual, upon 60 days' written notice to the other party.
Article 8 ASSIGNMENT
8.01 This Agreement shall automatically terminate in the event
of its assignment as such term is defined by the Investment Company Act of
1940, as amended.
Article 9 AMENDMENT
9.01 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution
of the Board of Directors of the Fund, including a majority of the directors
who are not interested persons of the Fund, MIMLIC Asset or MIMLIC Sales,
cast in person at a meeting called for the purpose of voting on such approval.
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Article 10 MINNESOTA LAW TO APPLY
10.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of
Minnesota.
Article 11 MERGER OF AGREEMENT
11.01 This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement with respect to the
subject matter hereof whether oral or written.
Article 12 NOTICES
12.01 Any notice under this Agreement shall be in writing,
addressed, delivered or mailed, postage prepaid, to the other party at such
address as such other party may designate in writing for receipt of such
notice.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf under their seals
by and through their duly authorized officers, as of the day and year first
above written.
MIMLIC SMALL COMPANY FUND, INC.
By /s/ Xxxx X. Xxxxxxx, President
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Attest /s/ Xxxx X. Xxxxxxx, Assistant Secretary
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THE MINNESOTA MUTUAL LIFE
INSURANCE COMPANY
By /s/ Bardea X. Xxxxxxx, Second Vice President
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Attest /s/ Xxxxxx X. Xxxxxxxxx, Second Vice President
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MIMLIC SMALL COMPANY FUND, INC.
SCHEDULE A
(As amended January 18, 1995 and
effective February 1, 1995)
Minnesota Mutual shall receive, as compensation for its services
pursuant to this Agreement, a monthly fee determined in accordance with the
following table:
Monthly Administrative
Services Fee
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$3,100
Said monthly fees shall be paid to Minnesota Mutual not later
than five days following the end of each calendar quarter in which said
services were rendered.
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