EXHIBIT 9(A)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of the _______ day of
________________________ , 1996 by and between the MATTERHORN GROWTH FUND, INC.
(the "Fund"), a Maryland Corporation, and INVESTMENT COMPANY ADMINISTRATION
CORPORATION, a Delaware Corporation (the "Administrator");
WITNESSETH
WHEREAS, the Fund is a non-diversified series of an open-end
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund wishes to retain the Administrator to provide
certain administrative services in connection with the management of the Fund's
operations and the Administrator is willing to furnish such services:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints the Administrator to provide
certain administrative services, hereinafter enumerated, in connection with the
management of the Fund's operations for the period and on the terms set forth in
this Agreement. The Administrator accepts such appointment and agrees to comply
with all relevant provisions of the 1940 Act, applicable rules and regulations
thereunder, and other applicable law.
2. Services on a Continuing Basis. Subject to the overall supervision
of the Board of Directors of the Fund and MDB Asset Management Corporation (the
"Manager"), the Administrator will perform the following services on a regular
basis which would be daily, weekly or as otherwise appropriate:
A) perform the services in Schedule 1 attached; and
B) such additional services as may be agreed upon by the Fund and the
Administrator.
3. Responsibility of the Administrator. The Administrator shall be
under no duty to take any action on behalf of the Fund except as set forth
herein or as may be agreed to by the Administrator in writing. In the
performance of its duties hereunder, the Administrator shall be obligated to
exercise reasonable care and diligence and to act in good faith and to use its
best efforts. Without limiting the generality of the foregoing or any other
provision of this Agreement, the Administrator shall not be liable for delays or
errors or loss of data occurring by reason of circumstances beyond the
Administrator's control.
4. Reliance Upon Instructions. The Fund agrees that the Administrator
shall be entitled to rely upon any instructions, oral or written, actually
received by the Administrator from the Board of Directors of the Fund and shall
incur no liability to the Fund or the Fund's Manager in acting upon such oral or
written instructions, provided such instructions reasonably appear to have been
received from a person duly authorized by the Board of Directors of the Fund to
give oral or written instructions on behalf of the Fund.
5. Confidentiality. The Administrator agrees on behalf of itself and
its employees to treat confidentially all records and other information relative
to the Fund and all prior, present or potential shareholders of the Fund, except
after prior notification to, and approval of release of information in writing
by, the Fund, which approval shall not be unreasonably withheld where the
Administrator may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Fund.
6. Equipment Failures. In the event of equipment failures or the
occurrence of events beyond the Administrator's control which render the
performance of the Administrator's functions under this Agreement impossible,
the Administrator shall take reasonable steps to minimize service interruptions
and is authorized to engage the services of third parties (at the
Administrator's expense) to prevent or remedy such service interruptions.
7. Compensation. As compensation for services rendered by the
Administrator during the term of this agreement, the Fund will pay to the
Administrator at an annualized rate of .10% of the Fund's average daily net
assets or $40,000 ($45,000 for the first year), whichever is greater. The fee is
computed daily and payable monthly by the fifth day of the next month.
8. Indemnification. The Fund agrees to indemnify and hold harmless
the Administrator from all taxes, filing fees, charges, expenses, assessments,
claims and liabilities (including without limitation, liabilities arising under
the Securities Act of 1933, the Securities Exchange Act of 1934, the 1940 Act,
and any state and foreign securities laws, all as amended from time to time) and
expenses, including (without limitation) reasonable attorneys fees and
disbursements, arising directly or indirectly from any action or thing which the
Administrator takes or does or omits to take or do at the request of or in
reliance upon the advice of the Board of Directors of the Fund, provided, that
the Administrator will not be indemnified against any liability to the Fund or
to shareholders of the Fund (or any expenses incident to such liability) arising
out of the Administrator's own willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties and obligations under this Agreement. The
Administrator agrees to indemnify and hold harmless the Fund, the Fund, and each
of its Directors from all claims and liabilities (including, without limitation,
liabilities arising under the Securities Act of 1933, the Securities Exchange
Act of 1934, the 1940 Act, and any state and foreign securities laws, all as
amended from time to time) and expenses, including (without limitation)
reasonable attorneys fees and disbursements, arising directly or indirectly from
any action or thing which the Administrator takes or does or omits to take or do
which is in violation of this Agreement or not in accordance with instructions
properly given to the Administrator, or arising out of the Administrator's own
willful misfeasance, bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement.
9. Duration and Termination. This Agreement shall continue until
termination by the Fund (through the Board of Directors of the Fund) or the
Administrator on 60 days' written notice to the other. All notices and other
communications hereunder shall be in writing. This Agreement cannot be assigned
without the prior written consent of the other party hereto.
10. Amendments. This Agreement or any part hereof may be changed or
waived only by instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
11. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the services to be
performed hereunder, and supersedes all prior agreements and understandings
relating to the subject matter hereof. The captions in this Agreement are
included for convenience of reference only and in no way define or limit any of
the provisions hereof or otherwise affect their construction or effect. This
Agreement shall be deemed to be a contract made in Delaware and governed by
Delaware law. 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
will not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below on the day and year first written
above.
MATTERHORN GROWTH FUND, INC.
By:____________________________________
Title: ________________________________
INVESTMENT COMPANY ADMINISTRATION
CORPORATION
By:____________________________________
Title: ________________________________
