ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 25th day of June, 2002, by and
between INVESTBIO OPPORTUNITY TRUST (the "Trust"), a Delaware business trust
having its principal place of business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and ULTIMUS FUND SOLUTIONS, LLC ("Ultimus"), a limited
liability company organized under the laws of the State of Ohio and having its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx
00000.
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Trust desires that Ultimus provide certain administrative
services for each series of the Trust, listed on Schedule A attached hereto and
made part of this Agreement, as such Schedule A may be amended from time to time
(individually referred to herein as the "Portfolio" and collectively as the
"Portfolios"); and
WHEREAS, Ultimus is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF ULTIMUS.
The Trust hereby retains Ultimus to act as the administrator of the Trust
and to furnish the Trust with the services as set forth below. Ultimus hereby
accepts such employment to perform such duties.
Ultimus shall provide the Trust with regulatory reporting services;
shall provide all necessary office space, equipment, personnel, compensation and
facilities for handling the affairs of the Trust; and shall provide such other
services as the Trust may request that Ultimus perform consistent with its
obligations under this Agreement. Without limiting the generality of the
foregoing, Ultimus shall:
(a) calculate Trust expenses and administer all disbursements for the
Trust, and as appropriate compute the Trust's yields, total
return, expense ratios and portfolio turnover rate;
(b) prepare and coordinate, in consultation with Trust counsel, the
preparation of prospectuses, statements of additional
information, registration statements and proxy materials;
(c) prepare such reports, notice filing forms and other documents
(including reports regarding the sale and redemption of shares of
the Trust as may be required in order to comply with federal and
state securities law) as may be necessary or desirable to make
notice filings relating to the Trust's shares with state
securities authorities, monitor the sale of Trust shares for
compliance with state securities laws, and file with the
appropriate state securities authorities compliance filings as
may be necessary or convenient to enable the Trust to make a
continuous offering of its shares;
(d) develop and prepare, with the assistance of the Trust's
investment adviser, communications to shareholders, including the
annual report to shareholders, coordinate the mailing of
prospectuses, notices, proxy statements, proxies and other
reports to Trust shareholders, and supervise and facilitate the
proxy solicitation process for all shareholder meetings,
including the tabulation of shareholder votes;
(e) administer contracts on behalf of the Trust with, among others,
the Trust's investment adviser, distributor, custodian, transfer
agent and fund accountant;
(f) supervise the Trust's transfer agent with respect to the payment
of dividends and other distributions to shareholders;
(g) calculate performance data of the Trust for dissemination to
information services covering the investment company industry;
(h) file all of the Trust's tax returns, and prepare and mail annual
Form 1099, Form W-2P and Form 5498 to appropriate shareholders,
with a copy to the Internal Revenue Service;
(i) assist with the layout and printing of prospectuses and
supplements thereto, and assist with and coordinate layout and
printing of the Trust's semi-annual and annual reports to
shareholders;
(j) provide individuals reasonably acceptable to the Trust's Trustees
to serve as officers of the Trust, who will be responsible for
the management of certain of the Trust's affairs as determined by
the Trustees;
(k) advise the Trust and its Trustees on matters concerning the Trust
and its affairs including making recommendations regarding
dividends and distributions;
(l) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust in
accordance with the requirements of the 1940 Act and as such
bonds and policies are approved by the Trustees;
(m) monitor and advise the Trust and its Portfolios on their
registered investment company status under the Internal Revenue
Code of 1986;
(n) monitor and advise the Trust and its Portfolios on compliance
with applicable limitations as imposed by the 1940 Act and the
rules and regulations thereunder or set forth in the Trust's or
any Portfolio's then current Prospectus or Statement of
Additional Information;
(o) provide such internal legal services as are requested by the
Trust including, but not limited to, the coordination of meetings
and preparation of materials for the quarterly and special
meetings of the Trustees and meetings of the Trust's
shareholders;
(p) cooperate with, and take all reasonable actions in the
performance of its duties under this Agreement to ensure that all
necessary information is made available to,
2
the Trust's independent public accountants in connection with the
preparation of any audit or report requested by the Trust;
(q) cooperate with, and take all reasonable actions in the
performance of its duties under this Agreement to ensure that the
necessary information is made available to the Securities and
Exchange Commission (the "SEC") or any other regulatory authority
in connection with any regulatory audit of the Trust or the
investment adviser of the Trust;
(r) perform all administrative services and functions of the Trust to
the extent administrative services and functions are not provided
to the Trust by other agents of the Trust;
(s) prepare and file with the SEC the semi-annual report for the
Trust on Form N-SAR and all required notices pursuant to Rule
24f-2 under the 1940 Act; and
(t) furnish advice and recommendations with respect to other aspects
of the business and affairs of the Trust as the Trust and Ultimus
shall determine desirable.
2. SUBCONTRACTING.
Ultimus may, at its expense and, upon written notice to the Trust,
subcontract with any entity or person concerning the provision of the services
contemplated hereunder; provided, however, that Ultimus shall not be relieved of
any of its obligations under this Agreement by the appointment of such
subcontractor and provided further, that Ultimus shall be responsible, to the
extent provided in Section 7 hereof, for all acts of such subcontractor as if
such acts were its own.
3. ALLOCATION OF CHARGES AND EXPENSES.
Ultimus shall furnish at its own expense the executive, supervisory and
clerical personnel necessary to perform its obligations under this Agreement.
Ultimus shall also pay all compensation, if any, of officers of the Trust who
are affiliated persons of Ultimus.
The Trust assumes and shall pay or cause to be paid all other expenses
of the Trust not otherwise allocated herein, including, without limitation,
organization costs, taxes, expenses for legal and auditing services, the
expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing shareholders, all expenses incurred in connection with
issuing and redeeming shares, the costs of custodial services, the cost of
initial and ongoing registration and/or qualification of the shares under
federal and state securities laws, fees and out-of-pocket expenses of Trustees
who are not affiliated persons of Ultimus or the investment adviser to the
Trust, insurance premiums, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Trust.
4. COMPENSATION OF ULTIMUS.
For the services to be rendered, the facilities furnished and the
expenses assumed by Ultimus pursuant to this Agreement, the Trust shall pay to
Ultimus compensation at an annual rate specified in Schedule B attached hereto.
Such compensation shall be calculated and accrued daily, and paid to Ultimus
monthly. The Trust shall also reimburse Ultimus for its reasonable out-
3
of-pocket expenses, including but not limited to the travel and lodging expenses
incurred by officers and employees of Ultimus in connection with attendance at
Board meetings.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, Ultimus' compensation for
that part of the month in which this Agreement is in effect shall be prorated in
a manner consistent with the calculation of the fees as set forth above. Payment
of Ultimus' compensation for the preceding month shall be made promptly.
5. EFFECTIVE DATE.
This Agreement shall become effective with respect to a Portfolio as of
the date first written above (or, if a particular Portfolio is not in existence
on that date, on the date such Portfolio commences operation) (the "Effective
Date").
6. TERM OF THIS AGREEMENT.
The term of this Agreement shall continue in effect, unless earlier
terminated by either party hereto as provided hereunder, for a period of two
years. Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed automatically for successive one-year periods.
This Agreement may be terminated without penalty: (i) by provision of
sixty (60) days' written notice; (ii) by mutual agreement of the parties; or
(iii) for "cause" (as defined herein) upon the provision of thirty (30) days'
advance written notice by the party alleging cause.
For purposes of this Agreement, "cause" shall mean: (i) a material
breach of this Agreement that has not been remedied within thirty (30) days
following written notice of such breach from the non-breaching party, (ii) a
series of negligent acts or omissions or breaches of this Agreement which, in
the aggregate, constitute in the reasonable judgment of the Trust, a serious
failure to perform satisfactorily Ultimus' obligations hereunder; (iii) a final,
unappealable judicial, regulatory or administrative ruling or order in which the
party to be terminated has been found guilty of criminal or unethical behavior
in the conduct of its business; or (iv) financial difficulties on the part of
the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or the modification or alteration of the rights of
creditors.
Notwithstanding the foregoing, after such termination for so long as
Ultimus, with the written consent of the Trust, in fact continues to perform any
one or more of the services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Compensation due Ultimus and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding such termination.
Ultimus shall be entitled to collect from the Trust, in addition to the
compensation described in Schedule B, the amount of all of Ultimus' cash
disbursements for services in connection with Ultimus' activities in effecting
such termination, including without limitation, the delivery to the Trust and/or
its designees of the Trust's property, records, instruments and documents.
4
7. STANDARD OF CARE.
The duties of Ultimus shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against Ultimus
hereunder. Ultimus shall use its best efforts in the performance of its duties
hereunder and act in good faith in performing the services provided for under
this Agreement. Ultimus shall be liable for any damages arising directly or
indirectly out of Ultimus' failure to perform its duties under this Agreement to
the extent such damages arise directly or indirectly out of Ultimus' willful
misfeasance, bad faith, negligence in the performance of its duties, or reckless
disregard of it obligations and duties hereunder. (As used in this Article 7,
the term "Ultimus" shall include directors, officers, employees and other agents
of Ultimus as well as Ultimus itself.)
Without limiting the generality of the foregoing or any other provision
of this Agreement, (i) Ultimus shall not be liable for losses beyond its
reasonable control, provided that Ultimus has acted in accordance with the
standard of care set forth above; and (ii) Ultimus shall not be liable for the
validity or invalidity or authority or lack thereof of any instruction, notice
or other instrument that Ultimus reasonably believes to be genuine and to have
been signed or presented by a duly authorized representative of the Trust (other
than an employee or other affiliated persons of Ultimus who may otherwise be
named as an authorized representative of the Trust for certain purposes).
Ultimus may apply to the Trust at any time for instructions and may
consult with counsel for the Trust or its own counsel and with accountants and
other experts with respect to any matter arising in connection with Ultimus'
duties hereunder, and Ultimus shall not be liable or accountable for any action
taken or omitted by it in good faith in accordance with such instruction or with
the reasonable opinion of such counsel, accountants or other experts qualified
to render such opinion.
8. INDEMNIFICATION.
The Trust agrees to indemnify and hold harmless Ultimus from and
against any and all actions, suits, claims, losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) (collectively, "Losses") arising
directly or indirectly out of any action or omission to act which Ultimus takes
(i) at any request or on the direction of or in reliance on the reasonable
advice of the Trust, (ii) upon any instruction, notice or other instrument that
Ultimus reasonably believes to be genuine and to have been signed or presented
by a duly authorized representative of the Trust (other than an employee or
other affiliated person of Ultimus who may otherwise be named as an authorized
representative of the Trust for certain purposes) or (iii) on its own
initiative, in good faith and in accordance with the standard of care set forth
herein, in connection with the performance of its duties or obligations
hereunder; provided, however that the Trust shall have no obligation to
indemnify or reimburse Ultimus under this Article 8 to the extent that Ultimus
is entitled to reimbursement or indemnification for such Losses under any
liability insurance policy described in this Agreement or otherwise.
Ultimus shall not be indemnified against or held harmless from any
Losses arising directly or indirectly out of Ultimus' own willful misfeasance,
bad faith, negligence in the performance of its duties, or reckless disregard of
its obligations and duties hereunder. (As used in this Article 8, the term
"Ultimus" shall include directors, officers, employees and other agents of
Ultimus as well as Ultimus itself.)
5
9. RECORD RETENTION AND CONFIDENTIALITY.
Ultimus shall keep and maintain on behalf of the Trust all books and
records which the Trust and Ultimus is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance
of books and records in connection with the services to be provided hereunder.
Ultimus further agrees that all such books and records shall be the property of
the Trust and to make such books and records available for inspection by the
Trust or by the SEC at reasonable times and otherwise to keep confidential all
books and records and other information relative to the Trust and its
shareholders; except when requested to divulge such information by
duly-constituted authorities or court process. If Ultimus is requested or
required to disclose any confidential information supplied to it by the Trust,
Ultimus shall, unless prohibited by law, promptly notify the Trust of such
request(s) so that the Trust may seek an appropriate protective order.
10. FORCE MAJEURE.
Ultimus assumes no responsibility hereunder, and shall not be liable,
for any damage, loss of data, delay or any other loss whatsoever caused by
events beyond its reasonable control, including acts of civil or military
authority, national emergencies, fire, flood, catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply.
11. RIGHTS OF OWNERSHIP; RETURN OF RECORDS.
All records and other data except computer programs and procedures
developed to perform services required to be provided by Ultimus are the
exclusive property of the Trust and all such records and data will be furnished
to the Trust in appropriate form as soon as practicable after termination of
this Agreement for any reason. Ultimus may at its option at any time, and shall
promptly upon the Trust's demand, turn over to the Trust and cease to retain
Ultimus' files, records and documents created and maintained by Ultimus pursuant
to this Agreement which are no longer needed by Ultimus in the performance of
its services or for its legal protection. If not so turned over to the Trust,
such documents and records will be retained by Ultimus for six years from the
year of creation. At the end of such six-year period, such records and documents
will be turned over to the Trust unless the Trust authorizes in writing the
destruction of such records and documents.
12. REPRESENTATIONS OF THE TRUST.
The Trust certifies to Ultimus that: (1) as of the close of business
on the Effective Date, each Portfolio that is in existence as of the Effective
Date has authorized unlimited shares, and (2) this Agreement has been duly
authorized by the Trust and, when executed and delivered by the Trust, will
constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
6
13. REPRESENTATIONS OF ULTIMUS.
Ultimus represents and warrants that: (1) it will maintain a disaster
recovery plan and procedures including provisions for emergency use of
electronic data processing equipment, which is reasonable in light of the
services to be provided, and it will, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions (Ultimus shall have no
liability with respect to the loss of data or service interruptions caused by
equipment failure, provided it maintains such plans and procedures); (2) this
Agreement has been duly authorized by Ultimus and, when executed and delivered
by Ultimus, will constitute a legal, valid and binding obligation of Ultimus,
enforceable against Ultimus in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties; (3) it is
duly registered with the appropriate regulatory agency as a transfer agent and
such registration will remain in full force and effect for the duration of this
Agreement; and (4) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
14. INSURANCE.
Ultimus shall furnish the Trust with pertinent information concerning
the professional liability insurance coverage that it maintains. Such
information shall include the identity of the insurance carrier(s), coverage
levels and deductible amounts. Ultimus shall notify the Trust should any of its
insurance coverage be canceled or reduced. Such notification shall include the
date of change and the reasons therefor. Ultimus shall notify the Trust of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust from time to time as may be appropriate of the total outstanding claims
made by Ultimus under its insurance coverage.
15. INFORMATION TO BE FURNISHED BY THE TRUST.
The Trust has furnished to Ultimus the following:
(a) Copies of the Agreement and Declaration of Trust ("Declaration
of Trust") and of any amendments thereto, certified by the
proper official of the state in which such document has been
filed.
(b) Copies of the following documents:
(1) The Trust's By-Laws and any amendments thereto; and
(2) Certified copies of resolutions of the Trustees covering the
approval of this Agreement, authorization of a specified
officer of the Trust to execute and deliver this Agreement
and authorization for specified officers of the Trust to
instruct Ultimus thereunder.
(c) A list of all the officers of the Trust, together with specimen
signatures of those officers who are authorized to instruct
Ultimus in all matters.
(d) Copies of the Prospectus and Statement of Additional Information
for each Portfolio.
7
16. AMENDMENTS TO AGREEMENT.
This Agreement, or any term thereof, may be changed or waived only by
written amendment signed by the party against whom enforcement of such change or
waiver is sought.
For special cases, the parties hereto may amend such procedures set
forth herein as may be appropriate or practical under the circumstances, and
Ultimus may conclusively assume that any special procedure which has been
approved by the Trust does not conflict with or violate any requirements of its
Declaration of Trust or then current prospectuses, or any rule, regulation or
requirement of any regulatory body.
17. COMPLIANCE WITH LAW.
Except for the obligations of Ultimus otherwise set forth herein, the
Trust assumes full responsibility for the preparation, contents and distribution
of each prospectus of the Trust as to compliance with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the 1940 Act and any other laws, rules and regulations of governmental
authorities having jurisdiction. The Trust represents and warrants that no
shares of the Trust will be offered to the public until the Trust's registration
statement under the Securities Act and the 1940 Act has been declared or becomes
effective.
18. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent
by registered or certified mail to the party required to be served with such
notice, at the following address: if to the Trust, at 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx X. Xxxxxxx; and if to Ultimus, at
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attn: Xxxxxx X. Xxxxxx;
or at such other address as such party may from time to time specify in writing
to the other party pursuant to this Section.
19. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns.
20. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
State of Ohio and the applicable provisions of the 1940 Act. To the extent that
the applicable laws of the State of Ohio, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
21. LIMITATION OF LIABILITY.
A copy of the Declaration of Trust is on file with the Secretary of the
State of Delaware, and notice is hereby given that this instrument is executed
on behalf of the Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or shareholders
individually but are binding only upon the assets and property of the Trust (or
if the matter relates only to a particular Portfolio, that
8
Portfolio), and the Ultimus shall look only to the assets of the Trust, or the
particular Portfolio, for the satisfaction of such obligations.
22. MULTIPLE ORIGINALS.
This Agreement may be executed in two or more counterparts, each of
which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
INVESTBIO OPPORTUNITY TRUST
By: __________________________
Title: President
ULTIMUS FUND SOLUTIONS, LLC
By: __________________________
Title: President
9
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT BETWEEN
INVESTBIO OPPORTUNITY TRUST
AND
ULTIMUS FUND SOLUTIONS, LLC
FUND PORTFOLIOS
InvestBio Opportunity Fund
10
SCHEDULE B
TO THE ADMINISTRATION AGREEMENT BETWEEN
INVESTBIO OPPORTUNITY TRUST
AND
ULTIMUS FUND SOLUTIONS, LLC
FEES
Pursuant to Article 4, in consideration of services rendered and
expenses assumed pursuant to this Agreement, the Trust will pay Ultimus on the
first business day after the end of each month, or at such time(s) as Ultimus
shall request and the parties hereto agree, a fee computed with respect to each
Portfolio as follows:
AVERAGE DAILY NET ASSETS ADMINISTRATION FEE
Up to $50 million .150%
$50 to $100 million .125%
$100 to $250 million .100%
$250 to $500 million .075%
In excess of $500 million .050%
The fee will be subject to a monthly minimum of $2,000 with respect to each
Portfolio.
In addition to the above fees, the Trust will reimburse Ultimus for
certain out-of-pocket expenses incurred on the Trust's behalf, including but not
limited to, travel expenses to attend Board meetings and any other expenses
approved by the Trust. The Trust will be responsible for its normal operating
expenses, such as federal and state filing fees, insurance premiums, typesetting
and printing of the Trust's public documents, and fees and expenses of the
Trust's other vendors and providers.
