ADMINISTRATION AGREEMENT
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THIS AGREEMENT is made as of the 1st day of April 1994 by and between
the Bailard, Xxxxx & Xxxxxx Diversa Fund (the "Fund"), a separate series of the
Bailard, Xxxxx & Xxxxxx Fund Group, a Massachusetts Business Trust (the
"Trust"), and INVESTMENT COMPANY ADMINISTRATION CORPORATION, a New Jersey
Corporation (the "Administrator");
WITNESSETH
WHEREAS, the Fund is a diversified series of an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Trust 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 Trust 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 Trustees of the Trust and Bailard, Xxxxx & Xxxxxx Inc., (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 Trust agrees that the Administrator
shall be entitled to rely upon any instructions, oral or written, actually
received by the Administrator from the Board of Trustees of the Trust and shall
incur no liability to the Trust or the Trust'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 Trustees of the
Trust 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 an annual fee equal to $40,000, 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 Trustees of the Trust, 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 Trust, and
each of its Trustees 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. No fund
or other series of the Trust shall be liable for any claim against, or expense
of, any other fund or series of the Trust.
9. Duration and Termination. This Agreement shall continue until
termination by the Fund (through the Board of Trustees of the Trust) 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, including the letter agreement relating
to blue sky services dated June 24, 1993. 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 California and governed by
California 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.
12. Limitation on Liability. Notice is hereby given of the limitations
of the liability of the Trust's shareholders and Trustees as set forth in the
Trust's Declaration of Trust, as amended, on file with the Secretary of the
Commonwealth of Massachusetts. The obligations assumed by the Trust pursuant to
this Agreement shall be limited in all cases to the Trust and its assets. No
party named herein shall seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust; nor shall any party named herein
seek satisfaction of any such obligation from the Board of Trustees or any
individual Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this their officers
designated below on the day and year first written above
BAILARD, XXXXX & XXXXXX
FUND GROUP
By: /s/ Xxxx Xxxxxx
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Title: Treasurer
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INVESTMENT COMPANY ADMINISTRATION
CORPORATION
By: /s/ Xxxx Xxxxxxx
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Title: Vice President
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Schedule I
Services
A. Administration
1. Legal
a. Draft and file in conjunction with Funds' counsel the
Post-Effective Amendment and any supplements ("stickers") to
the Registration Statement for each Fund.
b. File State Registrations
c. Maintain corporate and blue sky calendars covering the
matters referred to herein.
d. Monitor Blue Sky summary reports.
e. Order checks for states that have to be renewed or amended.
f. Complete various State forms for renewals or amendments.
g. Complete blue sky sales reports for states where required.
h. Mail out copies of prospectuses and annual reports when new
ones are printed.
i. Notify all states of any change to any Fund.
j. Assist in obtaining required Fidelity Bond and Directors and
Officers Insurance, and monitor on a monthly basis compliance
with levels of Fidelity Bond Insurance required by the
Investment Company Act.
k. Prepare and distribute materials for all directors, including
annual 1099's.
l. Prepare required and pro-forma data for annual approvals of
advisory, distribution and administrative services contracts.
m. File Rule 24F-2 Notice annually.
n. Assist in the negotiations of any contracts covering the
matters referred to herein.
o. Draft and file proxy statements in conjunction with Funds'
counsel.
p. Recommend items covering the matters referred to herein for
the agenda for the Board of Directors Meetings.
q. Prepare or compile all exhibits for related agenda items
(i.e. contracts, reports, schedules).
r. Prepare and file NSAR semi-annually.
s. Coordinate the activities of the Funds' Advisers, Transfer
Agents, Custodians, Legal Counsel and Independent
Accountants, as they relate to the Administrator's oversight,
recordkeeping and reporting responsibilities hereunder.
2. Operations & Administration
a. Prepare and file periodic reports to shareholders and
coordinate each proof copy with printers, independent
accountants, and attorneys prior to production of the final
product.
b. Monitor daily and periodic compliance with respect to
Investment Company Act, Internal Revenue Code, and Prospectus
guidelines and restrictions, which includes the items
identified in Appendix A (attached) performed on a periodic
basis.
c. Frequent audit of all income and expense accruals, sales and
redemptions of capital shares, and capital shares
outstanding.
d. Evaluate expenses, project future expenses, determine
accruals, and process payments of expenses.
Addendum to Administration Agreements
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Effective July 1, 1995, the Administration Agreements between
Investment Company Administration Corporation and Bailard Xxxxx & Xxxxxx Fund
Group and Bailard, Xxxxx & Xxxxxx International Fund Group, Inc., dated April 1,
1994 and October 1, 199 1, respectively, are hereby amended as follows:
1. Paragraph 7 of the Agreements.
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7. Compensation. As compensation for services rendered by the
Administrator during the term of this agreement, each Fund will pay to
the Administrator an annual fee equal to $32,500, payable monthly by
the fifth day of the next month.
2. Schedule 1 of the Agreements.
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A. Administration
1. Legal
Paragraphs b., d., e., f., g. and I. are omitted from the
schedule of services to be provided. Paragraph c. is revised to read as
follows:
c. Maintain corporate calendars covering the matters referred
to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed by their officers designated below on the day and year first written
above.
BAILARD, XXXXX & XXXXXX FUND GROUP and
BAILARD, XXXXX & XXXXXX INTERNATIONAL FUND GROUP, INC
By: /s/ Xxxx Xxxxxx
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Title: Treasurer
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INVESTMENT COMPANY ADMINISTRATION CORPORATION
By: /s/ Xxxx Xxxxxxx
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Title: Sr. Vice President
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