ADMINISTRATION AGREEMENT
AGREEMENT made this 4th day of December, 1995 by and between Xxxxx Funds,
Inc., a Minnesota corporation (hereinafter called the "Company"), with respect
to Xxxxx U.S. Emerging Growth Fund and any other series of the Company (each, a
"Fund"), and Princeton Administrators, L.P., a Delaware limited partnership
(hereinafter called the "Administrator");
W I T N E S S E T H
WHEREAS, the Company and Xxxxx Associates, Inc. (the "Investment Adviser")
are entering 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, 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
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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 the
greater of (i) $125,000 per annum ($10,416.66 per month), or (ii) 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 Administrator is entitled
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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 Agreement as of
the day and year first above written.
XXXXX FUNDS, INC.
By: ____________________________________
Title:
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc., General Partner
By: ____________________________________
Title:
M1:0075657.01
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ADDENDUM
TO THE
ADMINISTRATION AGREEMENT
This Addendum to the Administration Agreement dated December 4, 1995 by and
between Xxxxx Funds, Inc. (the "Company"), with respect to Xxxxx U.S. Emerging
Growth Fund and any other series of the Company, and Princeton Administrators,
L.P. (the "Administrator"), for the period December 4, 1995 through December 31,
1996 or for such shorter period if the Administration Agreement is earlier
terminated in accordance with its terms (the "Period"), modifies Section 3 of
the Administration Agreement to read in its entirety as follows:
3. COMPENSATION OF THE ADMINISTRATOR. For the services rendered to
the Company 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 be payable
within seven (7) days after the end of the period to which such
compensation relates.
Following the termination of the Period, this Addendum shall cease to be of
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of
the 4th day of December, 1995.
XXXXX FUNDS, INC.
By ____________________________________
Title:
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc., General Partner
By ____________________________________
Title:
M1:0077898.01
