Exhibit 9(b)
ADMINISTRATION AGREEMENT
BETWEEN
KALMAR POOLED TRUST
AND
▇▇▇▇▇▇ SQUARE MANAGEMENT CORPORATION
THIS ADMINISTRATION AGREEMENT is made as of the ___ day of
____________, 1996, between Kalmar Pooled Trust, a Delaware business trust
(the "Trust"), having its principal place of business in Wilmington,
Delaware, and ▇▇▇▇▇▇ Square Management Corporation, a Delaware corporation
("▇▇▇▇▇▇ Square"), having its principal place of business in Wilmington,
Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company
and offers for public sale one or more series of shares of beneficial
interest ("Series");
WHEREAS, each share of a Series represents an undivided interest in
the assets, subject to the liabilities, allocated to that Series;
WHEREAS, at the present time, the Trust has established two Series, of
which one Series consists of the two separate classes of shares and the
Trust may establish additional Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services of ▇▇▇▇▇▇
Square and to have ▇▇▇▇▇▇ Square provide certain administrative services;
and ▇▇▇▇▇▇ Square is willing to furnish such services to the Trust with
respect to each Series listed on Schedule A to this Agreement (each a
"Fund" and collectively the "Funds") on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. APPOINTMENT. The Trust hereby appoints and employs ▇▇▇▇▇▇ Square
as agent to perform those services described in this Agreement for the
Trust such appointment to take effect at the close of business on the date
first written above. ▇▇▇▇▇▇ Square shall act under such appointment and
perform the obligations thereof upon the terms and conditions hereinafter
set forth and in accordance with the principles of principal and agent
enunciated by the common law.
2. DOCUMENTS. The Trust has furnished ▇▇▇▇▇▇ Square copies of the
Trust's Agreement and Delaration of Trust, By-Laws, Advisory Agreement,
Distribution Agreement, Accounting Services Agreement, Custody Agreement,
Transfer Agency Agreement, Shareholder Servicing Plan and Agreement, most
recent Registration Statement on Form N-1A, current Prospectus and
Statement of Additional Information (the "SAI") and all forms relating to
the plan, program or service offered by the Trust. The Trust shall furnish
promptly to ▇▇▇▇▇▇ Square a copy of any amendment or supplement to the
above-mentioned documents. The Trust shall furnish promptly to ▇▇▇▇▇▇
Square any additional documents necessary for it to perform its functions
hereunder or such other documents as ▇▇▇▇▇▇ Square shall request.
3. ADMINISTRATIVE SERVICES. Subject to the direction and control of
the Board of Trustees of the Trust (the "Trustees") and to the extent not
otherwise the responsibility of, or provided by, the Trust or other supply
agents of the Trust, ▇▇▇▇▇▇ Square shall provide the following
administrative services:
a. Supply:
(i) office facilities (which may be in ▇▇▇▇▇▇ Square's or
its affiliates' own offices);
(ii) non-investment related statistical and research data;
(iii)executive and administrative services;
(iv) stationery and office supplies at Trust expense; and
(v) corporate secretarial services, such as the preparation
and distribution of materials at Trust expense for
meetings of the Board of Trustee or shareholders;
b. Prepare and file, if necessary, reports to shareholders of
the Trust and reports with the Securities and Exchange Commission
(the "SEC"), state securities authorities including preliminary
and definitive proxy materials, post-effective amendments to the
Trust's registration statement, Rule 24f-2 Notices, Form N-SAR
filings and Prospectus supplements;
c. Monitor each Fund's compliance with the investment
restrictions and limitations imposed by the 1940 Act, and state
securities laws and applicable regulations thereunder, the
fundamental and non-fundamental investment policies and
limitations set forth in the Prospectus and SAI, and the
investment restrictions and limitations necessary for each Fund
to qualify as a regulated investment company under Subchapter M
of the Internal Revenue Code of 1986, as amended (the "Code") or
any successor statute;
d. Monitor sales of each Fund's shares and ensure that such
shares are properly, registered as required with the SEC and
applicable state authorities;
e. Prepare and distribute to appropriate parties notices
announcing the declaration of dividends and other distributions
to shareholders;
f. Prepare financial statements and footnotes and other
financial information with such frequency and in such format as
required to be included in reports to shareholders and the SEC;
g. Review sales literature and file such with regulatory
authorities, as necessary;
h. Provide information regarding material developments in state
securities regulation; and
i. Provide personnel to serve as officers of the Trust if so
elected by the Board of Trustees.
4. EXPENSES OF THE TRUST. The Trust agrees that it will pay all its
expenses other than those expressly stated to be payable by ▇▇▇▇▇▇ Square
hereunder, which expenses payable by the Trust shall include, without
limitation:
a. Fees payable for investment advisory services provided by
the Trust's Investment Adviser;
b. Fees payable for services provided by the Trust's
independent public accountants;
c. Fees payable for accounting services;
d. Fees payable for transfer agency services;
e. Fees payable for custodial services;
f. The cost of obtaining quotations for calculating the value
of the assets of each Fund;
g. Taxes levied against the Trust or any Fund;
h. Brokerage fees, ▇▇▇▇-ups and commissions in connection with
the purchase and sale of portfolio securities;
i. Costs, including the interest expense, of borrowing money;
j. Costs and/or fees incident to holding meetings of the Board
of Trustees and shareholders, preparation (including typesetting,
printing and ▇▇▇▇▇ filing charges) and mailing of prospectuses,
reports and proxy materials to the existing shareholders of the
Trust, filing of reports with regulatory bodies, maintenance of
the Trust's corporate existence, and registration of shares with
federal and state securities authorities;
k. Legal fees and expenses;
l. Costs of printing share certificates representing shares of
the Trust;
m. Fees payable to, and expenses of, members of the Board of
Trustees who are not "interested persons" of the Trust;
n. Out-of-pocket expenses incurred in connection with the
provision of administration, accounting, custodial and transfer
agency services;
o. Premiums payable on the fidelity bond required by Section
17(g) of the 1940 Act, and any other premiums payable on
insurance policies related to the Trust's business and the
investment activities of its Funds;
p. Rule 12b-1 fees, if any;
q. Shareholder service fees, if any;
r. Fees, voluntary assessments and other expenses incurred in
connection with the Trust's membership in investment company
organizations; and
s. Such non-recurring expenses as may arise, including actions,
suits or proceedings to which the Trust is a party and the legal
obligation which the Trust may have to indemnify its Trustees and
officers with respect thereto.
Except as otherwise agreed by ▇▇▇▇▇▇ Square, ▇▇▇▇▇▇ Square will not
reimburse the Trust for (or have deducted from its fees payable under this
Agreement) any expenses in excess of any expense limitations imposed by
state securities commissions having jurisdiction over the sale of Fund
shares.
5. RECORDKEEPING AND OTHER INFORMATION. ▇▇▇▇▇▇ Square shall create
and maintain all necessary records in accordance with all applicable laws,
rules and regulations, including, but not limited to, records required by
Section 31(a) of the 1940 Act and the rules thereunder, as the same may be
amended from time to time, pertaining to the various functions (described
above) performed by it and not otherwise created and maintained by another
party pursuant to contract with the Trust. All records shall be the
property of the Trust at all times and shall be available for inspection
and use by the Trust. Where applicable, such records shall be maintained
by ▇▇▇▇▇▇ Square for the periods and in the places required by Rule 31a-2
under the 1940 Act.
6. AUDIT, INSPECTION AND VISITATION. ▇▇▇▇▇▇ Square shall make
available during regular business hours all records and other data created
and maintained pursuant to the foregoing provisions of this Agreement for
reasonable audit and inspection by the Trust, any person retained by the
Trust or any regulatory agency having authority over the Trust.
7. APPOINTMENT OF AGENTS. ▇▇▇▇▇▇ Square may at any time or times in
its discretion appoint (and may at any time remove) other parties as its
agent to carry out such of the provisions of this Agreement as ▇▇▇▇▇▇
Square may from time to time direct; provided, however, that the
appointment of any such agent shall not relieve ▇▇▇▇▇▇ Square of any of its
responsibilities or liabilities hereunder.
8. RIGHT TO RECEIVE ADVICE.
a. Advice of Trust. If ▇▇▇▇▇▇ Square shall be in doubt as to
any action to be taken or omitted by it, it may request, and
shall receive, from the Trust directions or advice, including
oral or written instructions where appropriate.
b. Advice of Counsel. If ▇▇▇▇▇▇ Square shall be in doubt as to
any question of law involved in any action to be taken or omitted
by ▇▇▇▇▇▇ Square, it may request advice at its own cost from
counsel of its own choosing (who may be the regularly retained
counsel for the Trust or ▇▇▇▇▇▇ Square or the in-house counsel
for ▇▇▇▇▇▇ Square, at the option of ▇▇▇▇▇▇ Square).
c. Conflicting Advice. In case of conflict between oral and
written instructions received by ▇▇▇▇▇▇ Square, ▇▇▇▇▇▇ Square
shall be entitled to rely on and follow written instructions
alone. In case of conflict between advice received from the
Trust under (a) and (b) above, ▇▇▇▇▇▇ Square shall be entitled to
rely on and follow advice obtained in accordance with (b) above.
d. Protection of ▇▇▇▇▇▇ Square. ▇▇▇▇▇▇ Square shall be
protected in any action or inaction which it takes in reliance on
any directions, advice or oral or written Instructions received
pursuant to subsections a or b of this Section which ▇▇▇▇▇▇
Square, after receipt of any such directions, advice or oral or
written instructions, in good faith believes to be consistent
with such directions, advice or oral or written instructions, as
the case may be. However, nothing in this Section shall be
construed as imposing upon ▇▇▇▇▇▇ Square any obligation (i) to
seek such direction, advice or oral or written instructions, or
(ii) to act in accordance with such directions, advice or oral or
written instructions when received, unless, under the terms of
another provision of this Agreement, the same is a condition to
▇▇▇▇▇▇ Square's properly taking or omitting to take such action..
9. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. Except as
otherwise provided herein, the Trust assumes full responsibility for
ensuring that the Trust complies with all applicable requirements of the
Securities Act of 1933, as amended (the "1933 Act"), the Securities
Exchange Act of 1934, as amended (the "1934 Act"), the 1940 Act, the
Commodity Exchange Act and any laws, rules and regulations of governmental
authorities having jurisdiction.
10. COMPENSATION. For the performance of its obligations under this
Agreement, each Fund shall pay ▇▇▇▇▇▇ Square an administrative fee with
respect to each Fund in accordance with the fee arrangements described in
Schedule A attached hereto, as such schedule may be amended from time to
time.
11. USE OF ▇▇▇▇▇▇ SQUARE'S NAME. The Trust shall not use the name of
▇▇▇▇▇▇ Square or any of its affiliates in any Prospectus, SAI, sales
literature or other material relating to the Trust in a manner not approved
prior thereto in writing by ▇▇▇▇▇▇ Square; provided, however, that ▇▇▇▇▇▇
Square shall approve all uses of its and its affiliates' names that merely
refer in accurate terms to their appointments hereunder or that are
required by the SEC or a state securities commission; and further provided,
that in no event shall such approval be unreasonably withheld.
12. USE OF TRUST'S NAME. Neither ▇▇▇▇▇▇ Square nor any of its
affiliates shall use the name of the Trust or material relating to the
Trust on any forms (including any checks, bank drafts or bank statements)
for other than internal use in a manner not approved prior thereto by the
Trust; provided, however, that the Trust shall approve all uses of its name
that merely refer in accurate terms to the appointment of ▇▇▇▇▇▇ Square
hereunder or that are required by the SEC or a state securities commission;
and further provided, that in no event shall such approval be unreasonably
withheld.
13. LIABILITY OF ▇▇▇▇▇▇ SQUARE OR AFFILIATES. Neither ▇▇▇▇▇▇ Square
nor any officer, director, or employee of ▇▇▇▇▇▇ Square, nor any person who
controls ▇▇▇▇▇▇ Square within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act (collectively, "▇▇▇▇▇▇ Square Affiliates")
shall be liable for any error of judgment or mistake of law or for any loss
suffered by the Trust in connection with the matters to which this
Agreement relates, except to the extent of a loss resulting from willful
misfeasance, bad faith, gross negligence or reckless disregard of such
person's obligations and duties under this Agreement. Any person, even
though also an officer, director, employee or agent of ▇▇▇▇▇▇ Square or any
of its affiliates who may be or become an officer or director of the Trust,
shall be deemed, when rendering services to the Trust as such officer or
acting on any business of the Trust in such capacity (other than services
or business in connection with ▇▇▇▇▇▇ Square's duties under this
Agreement), to be rendering such services to or acting solely for the Trust
and not as an officer, director, employee or agent or one under the control
or direction of ▇▇▇▇▇▇ Square or any of its affiliates, even though paid by
one of those entities. ▇▇▇▇▇▇ Square shall not be liable or responsible
for any acts or omissions of any predecessor administrator or any other
persons having responsibility for matters to which this Agreement relates
nor shall ▇▇▇▇▇▇ Square be responsible for reviewing any such act or
omissions.
14. INDEMNIFICATION.
a. The Trust agrees to indemnify and hold harmless ▇▇▇▇▇▇
Square and any person who is an ▇▇▇▇▇▇ Square Affiliate from all
taxes, charges, expenses, assessments, claims and liabilities
including, without limitation, liabilities arising under the 1933
Act, the 1934 Act or the 1940 Act and any applicable state and
foreign securities laws, and amendments thereto (the "Securities
Laws"), and expenses, including without limitation reasonable
attorneys' fees and disbursements, arising directly or indirectly
from any action or omission to act which ▇▇▇▇▇▇ Square takes (i)
at the request of or on the direction of or in reliance on the
advice of the Trust or (ii) upon oral or written instructions.
Neither ▇▇▇▇▇▇ Square nor any ▇▇▇▇▇▇ Square Affiliate shall be
indemnified against any liability (or any expenses incident to
such liability) arising out of ▇▇▇▇▇▇ Square's or any such
affiliate's own willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties and obligations under this
Agreement.
b. Rodney Square agrees to indemnify and hold harmless the
Trust from all taxes, charges, expenses, assessments, claims and
liabilities arising from ▇▇▇▇▇▇ Square's obligations pursuant to
this Agreement (including, without limitation, liabilities
arising under the Securities Laws, and any state and foreign
securities laws, and amendments thereto) and expenses, including
(without limitation) reasonable attorneys' fees and disbursements
arising directly or indirectly out of ▇▇▇▇▇▇ Square's or its
directors', officers', employees', agents' and representatives
own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement.
c. In order that the indemnification provisions contained in
this Section 14 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.
15. RESPONSIBILITY OF ▇▇▇▇▇▇ SQUARE. In the performance of its duties
hereunder, ▇▇▇▇▇▇ Square shall be obligated to exercise care and diligence
and to act in good faith and to use its best efforts within reasonable
limits in performing services provided for under this Agreement. ▇▇▇▇▇▇
Square shall be under no duty to take any action on behalf of the Trust
except as specifically set forth or as may be specifically agreed to by
▇▇▇▇▇▇ Square in writing. Without limiting the generality of the foregoing
or of any other provision of this Agreement, ▇▇▇▇▇▇ Square in connection
with its duties under this Agreement shall not be under any duty or
obligation to inquire into and shall not be liable for or in respect of (i)
the validity or invalidity or authority or lack thereof of any oral or
written instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which ▇▇▇▇▇▇ Square
reasonably believes to be genuine; or (ii) delays or errors or loss of data
occurring by reason of circumstances beyond ▇▇▇▇▇▇ Square's control,
including acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown, flood or catastrophe, acts of
God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply, which circumstances ▇▇▇▇▇▇ Square shall take
minimal actions to minimize loss of data therefor.
16. DURATION, TERMINATION, ETC. The provisions of this Agreement may
not be changed, waived, discharged or terminated orally, but only by
written instrument that shall make specific reference to this Agreement and
that shall be signed by the party against which enforcement of such change,
waiver, discharge or termination is sought.
This Agreement shall become effective as of the day and year
first written above, and unless terminated as provided, shall continue in
force for three (3) years from the date of its execution and thereafter
from year to year, provided continuance after the three (3) year period is
approved at least annually by a vote of the Trustees of the Trust. This
Agreement may at any time be terminated on sixty (60) days' written notice
given to ▇▇▇▇▇▇ Square or by ▇▇▇▇▇▇ Square by six (6) months' written
notice given to the Trust; provided, however, that the foregoing provisions
of this Agreement may be terminated immediately at any time for cause
either by the Trust or by ▇▇▇▇▇▇ Square in the event that such cause shall
have remained unremedied for sixty (60) days or more after receipt of
written specification of such cause. Any such termination shall not affect
the rights and obligations of the parties under Section 13 hereof.
Upon the termination of this Agreement, the Trust shall pay to
▇▇▇▇▇▇ Square such compensation as may be payable for the period prior to
the effective date of such termination, including reimbursement for any out-
of-pocket expenses reasonably incurred by ▇▇▇▇▇▇ Square to such date. In
the event that the Trust designates a successor to any of ▇▇▇▇▇▇ Square's
obligations hereunder, ▇▇▇▇▇▇ Square shall, at the expense and direction of
the Trust, transfer to such successor all relevant books, records and other
data established or maintained by ▇▇▇▇▇▇ Square under the foregoing
provisions.
17. AMENDMENTS. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
▇▇▇▇▇▇ Square and the Trust shall regularly consult with each
other regarding ▇▇▇▇▇▇ Square's performance of its obligations and its
compensation under the foregoing provisions. In connection therewith, the
Trust shall submit to ▇▇▇▇▇▇ Square at a reasonable time in advance of
filing with the SEC copies of any amended or supplemented registration
statement of the Trust (including exhibits) under the 1933 Act and the 1940
Act, and, a reasonable time in advance of their proposed use, copies of any
amended or supplemented forms relating to any plan, program or service
offered by the Trust. Any change in such materials that would require any
change in ▇▇▇▇▇▇ Square's obligations under the foregoing provisions shall
be subject to the burdened party's approval, which shall not be
unreasonably withheld. In the event that a change in such documents or in
the procedures contained therein increases the cost to ▇▇▇▇▇▇ Square of
performing its obligations hereunder by more than an insubstantial amount,
▇▇▇▇▇▇ Square shall be entitled to receive reasonable compensation
therefor.
18. NOTICE. Any notice under this Agreement shall be given in
writing addressed and delivered or mailed, postage prepaid, to the other
party to this Agreement at its principal place of business.
19. SEVERABILITY. 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 shall not be affected thereby.
20. GOVERNING LAW. To the extent that state law has not been
preempted by the provisions of any law of the United States heretofore or
hereafter enacted, as the same may be amended from time to time, this
Agreement shall be administered, construed and enforced according to the
laws of the State of Delaware.
21. SHAREHOLDER LIABILITY. ▇▇▇▇▇▇ Square is hereby expressly put on
notice of the limitation of shareholder liability as set forth in the
Agreement and Declaration of Trust of the Trust and agree that obligations
assumed by the Trust under this Agreement shall be limited in all cases to
the Trust and its assets, and if the liability relates to one or more
Funds, the obligations hereunder shall be limited to the respective assets
of such Fund or Funds. ▇▇▇▇▇▇ Square further agrees that it shall not seek
satisfaction of any such obligations from the shareholders or any
individual shareholder of the Funds, nor from the Trustees or any
individual Trustee of the Trust.
22. MISCELLANEOUS. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the
purposes hereof. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed in two counterparts, each of which taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first written above.
KALMAR POOLED TRUST
By: ----------------------------------
Name, Title
▇▇▇▇▇▇ SQUARE MANAGEMENT
CORPORATION
By: ----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
ADMINISTRATION AGREEMENT
SCHEDULE A
KALMAR POOLED TRUST
PORTFOLIO LISTING AND FEE SCHEDULE
For the services ▇▇▇▇▇▇ Square provides under the Administration Agreement
attached hereto, Kalmar Pooled Trust (the "Trust") agrees to pay ▇▇▇▇▇▇
Square an administration fee equal to 0.15% of the first $50 million in
assets, plus 0.10% of assets over $50 million of average daily net assets
for the year. These fees are calculated on a group basis and are subject
to a $50,000 minimum for the first Portfolio and $20,000 minimum for each
additional Portfolio.
PORTFOLIOS
----------
Small Cap Portfolio
Micro-Cap Portfolio
This administration fee shall be payable monthly as soon as practicable
after the last day of each month based on the average daily net assets of
each Portfolio, as determined at the close of business on each day
throughout the month.
Out of pocket expenses shall be reimbursed by the Trust to ▇▇▇▇▇▇ Square or
paid directly by the Trust.
LIQUIDATED DAMAGES:
Upon the termination of the attached Agreement within the initial three (3)
year term by the Trust or the Trust's Board of Trustees , the Trust shall
pay to ▇▇▇▇▇▇ Square six (6) months of base fees in liquidated damages.