Exhibit 9(a)
ACCOUNTING SERVICES AGREEMENT
BETWEEN
KALMAR POOLED TRUST
AND
▇▇▇▇▇▇ SQUARE MANAGEMENT CORPORATION
THIS ACCOUNTING SERVICES 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 (the "1940 Act") as an open-end, management investment
company and offers for public sale one or more series of shares of
beneficial interest, each of which may offer one or more classes of shares;
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 to provide certain accounting services; and ▇▇▇▇▇▇ Square is willing
to furnish such services to the Trust with respect to each of the series
listed on Appendix A to this Agreement (each a "Fund" or collectively the
"Funds") on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints ▇▇▇▇▇▇ Square to provide
certain accounting services to the Trust for the period and on the terms
set forth in this Agreement. ▇▇▇▇▇▇ Square accepts such appointment and
agrees to furnish the services herein set forth in return for the
compensation as provided in Paragraph 12 of this Agreement. ▇▇▇▇▇▇ Square
agrees to comply with all relevant provisions of the 1940 Act and
applicable rules and regulations thereunder, and to remain open for
business on any day on which the New York Stock Exchange, the Federal
Reserve Bank of Philadelphia and Wilmington Trust Company are open for
business. The Trust may from time to time issue separate series or classes
or classify and reclassify shares of such series or class. ▇▇▇▇▇▇ Square
shall identify to each such series or class property belonging to such
series or class and in such reports, confirmations and notices to the Trust
called for under this Agreement shall identify the series or class to which
such report, confirmation or notice pertains.
2. DOCUMENTS. The Trust has furnished ▇▇▇▇▇▇ Square copies of the
Trust's Agreement and declarartion of Trust, By-Laws, Advisory Contract,
Distribution Agreement, Administration Agreement, Custody Agreement,
Transfer Agency Agreement, most recent Registration Statement on Form N-1A,
current Prospectus and Statement of Additional Information (the "SAI") and
all forms relating to any 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. DEFINITIONS.
(a) Authorized Person. As used in this Agreement, the term
"Authorized Person" means the President, Treasurer, Secretary and any
Vice President of the Trust and any other person, whether or not any
such person is an officer or employee of the Trust, duly authorized by
the Board of Trustees of the Trust to give Oral and Written
Instructions on behalf of the Trust and listed on Appendix B listing
persons duly authorized to give Oral and Written Instructions on
behalf of the Trust as may be received by ▇▇▇▇▇▇ Square from time to
time.
(b) Oral Instructions. As used in this Agreement, the term "Oral
Instructions" means oral instructions actually received by ▇▇▇▇▇▇
Square from an Authorized Person or from a person reasonably believed
by ▇▇▇▇▇▇ Square to be an Authorized Person. The Trust agrees to
deliver to ▇▇▇▇▇▇ Square, at the time and in the manner specified in
Paragraph 4(b) of this Agreement, Written Instructions confirming oral
Instructions.
(c) Written Instructions. As used in this Agreement, the term
"Written Instructions" means written instructions delivered by hand,
mail, tested telegram, cable, telex or facsimile sending device, and
received by ▇▇▇▇▇▇ Square, signed by two Authorized Persons.
4. INSTRUCTIONS CONSISTENT WITH TRUST INSTRUMENT, ETC.
(a) Unless otherwise provided in this Agreement, ▇▇▇▇▇▇ Square shall
act only upon Oral and Written Instructions. Although ▇▇▇▇▇▇ Square
may know of the provisions of the Trust Instrument and By-Laws of the
Trust, ▇▇▇▇▇▇ Square may assume that any Oral or Written Instructions
received hereunder are not in any way inconsistent with any provisions
of such Trust Instrument or By-Laws or any vote, resolution or
proceeding of the Shareholders, or of the Board of Trustees, or of any
committee thereof.
(b) ▇▇▇▇▇▇ Square shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received by ▇▇▇▇▇▇
Square pursuant to this Agreement. The Trust agrees to forward to
▇▇▇▇▇▇ Square Written Instructions confirming Oral Instructions in
such manner that the Written Instructions are received by ▇▇▇▇▇▇
Square, whether by hand delivery, telex, facsimile sending device or
otherwise, by the close of business of the same day that such Oral
Instructions are given to ▇▇▇▇▇▇ Square. The Trust agrees that the
fact that such confirming Written Instructions are not received by
▇▇▇▇▇▇ Square shall in no way affect the validity of the transactions
or enforceability of the transactions authorized by the Trust by
giving Oral Instructions.
The Trust agrees that ▇▇▇▇▇▇ Square shall incur no liability to the
Trust in acting upon Oral Instructions given to ▇▇▇▇▇▇ Square hereunder
concerning such transactions provided such instructions reasonably appear
to have been received from an Authorized Person.
5. SERVICES ON A CONTINUING BASIS.
(a) ▇▇▇▇▇▇ Square will perform the following accounting functions on
a daily basis:
(i) Journalize each Fund's investment, capital share and income
and expense activities;
(ii) Verify investment buy/sell trade tickets when received from
the
Trust's Investment Advisor ("Advisor") and transmit trades
to the
Trust's custodian for proper settlement;
(iii)Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of each Fund with the
Custodian, and provide the Advisor with the beginning cash
balance available for investment purposes;
(vi) Update the cash availability throughout the day as required
by the
Advisor;
(vii)Post to and prepare each Fund's Statement of Assets and
Liabilities and the Statement of Operations;
(viii)Calculate expenses payable pursuant to the Fund's various
contractual obligations;
(ix) Control all disbursements from the Trust on behalf of each
Fund
and authorize such disbursements upon Written Instructions;
(x) Calculate capital gains and losses;
(xi) Determine each Fund's net income;
(xii)Obtain security market quotes from services approved by the
Advisor, or if such quotes are unavailable, then obtain such
prices
from services approved by the Advisor, and in either case
calculate the market or fair value of each Fund's
investments;
(xiii)Transmit or mail a copy of the portfolio valuation to the
Advisor;
(xiv)Compute the net asset value of each class of each Fund;
(xv) Compute the yield, total return and expense ratio of each
class of
each Fund, and each Fund's portfolio turnover rate; and
(xvi)Monitor the expense accruals and notify Trust management of
any
proposed adjustments.
(b) In addition, ▇▇▇▇▇▇ Square will:
(i) Prepare monthly financial statements, which will include
without
limitation the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses;
(ii) Prepare monthly security transactions listings;
(iii)Prepare quarterly broker security transactions summaries;
(iv) Supply various Trust, Fund and class statistical data as
requested
on an ongoing basis;
(v) Assist in the preparation of support schedules necessary for
completion of Federal and state tax returns;
(vi) Assist in the preparation and filing of the Trust's Semi-
Annual
Reports with the SEC on Form N-SAR;
(vii)Assist in the preparation and filing of the Trust's annual
and semi-
annual shareholder reports and proxy statements;
(viii)Assist with the preparation of and Amendments to the
Trust's
registration statements on Form N-lA and other filings
relating to
the registration of shares; and
(ix) Monitor each Fund's status as a regulated investment company
under Subchapter M of the Internal Revenue Code of 1986, as
amended.
6. RECORDS. ▇▇▇▇▇▇ Square shall keep all books and records with
respect to the Trust's books of account and records of the Trust's
securities transactions. The books and records pertaining to the Trust
which are in the possession of ▇▇▇▇▇▇ Square shall be the property of the
Trust. Such books and records shall be prepared and maintained as required
by the 1940 Act and other applicable securities laws and rules and
regulations. The Trust, or the Trust's authorized representatives, shall
have access to such books and records at all times during ▇▇▇▇▇▇ Square's
normal business hours. Upon the reasonable request of the Trust, copies of
any such books and records shall be provided by ▇▇▇▇▇▇ Square to the Trust
or the Trust's authorized representative at the Trust's expense.
7. LIAISON WITH ACCOUNTANTS. ▇▇▇▇▇▇ Square shall act as liaison
with the Trust's independent public accountants and shall provide account
analyses, fiscal year summaries, and other audit related schedules. ▇▇▇▇▇▇
Square shall take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary information
is made available to such accountants for the expression of their opinion,
as such may be required by the Trust from time to time.
8. CONFIDENTIALITY. ▇▇▇▇▇▇ Square agrees on behalf of itself and
its employees to treat confidentially and as proprietary information of the
Trust all records and other information relative to the Trust and its
prior, present or potential Shareholders, and not to use such records and
information for any purpose other than performance of its responsibilities
and duties hereunder, except, after prior notification to and approval in
writing by the Trust, which approval shall not be unreasonably withheld and
may not be withheld where ▇▇▇▇▇▇ Square 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
Trust.
9. EQUIPMENT FAILURES. In the event of equipment failures beyond
▇▇▇▇▇▇ Square's control, ▇▇▇▇▇▇ Square shall, at no additional expense to
the Trust, take reasonable steps to minimize service interruptions but
shall have no liability with respect thereto. ▇▇▇▇▇▇ Square shall enter
into and shall maintain in effect with appropriate parties one or more
agreements making reasonable provision of emergency use of electronic data
processing equipment to the extent appropriate equipment is available.
10. 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 the Tust's expense from
counsel of its own choosing (who may be the regularly retained counsel
for the Trust or ▇▇▇▇▇▇ 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 paragraph 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 paragraph shall be construed as imposing
upon ▇▇▇▇▇▇ Square any obligation (i) to seek such directions, 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
11. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. The Trust
assumes full responsibility for insuring that the Trust complies with
all applicable requirements of the Securities Act of 1933 ("1933 Act"), the
Securities Exchange Act of 1934, as amended ("1934 Act"), the 1940 Act, and
any laws, rules and regulations of governmental authorities having
jurisdiction.
12. COMPENSATION. For the performance of its obligations under this
Agreement, the Trust on behalf of each Fund, shall pay ▇▇▇▇▇▇ Square in
accordance with the fee arrangements described in Schedule A attached
hereto, as such schedule may be amended from time to time.
13. INDEMNIFICATION. The Trust agrees to indemnify and hold harmless
▇▇▇▇▇▇ Square and any officer, director, or employee of ▇▇▇▇▇▇ Square and
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") from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising under the
1933 Act, the 1934 Act, the 1940 Act, and any other laws, rules and
regulations of any governmental authorities, all as or to be amended from
time to time) and expenses, including (without limitation) attorneys' fees
and disbursements, arising directly or indirectly from any action or thing
which ▇▇▇▇▇▇ Square takes or does or omits to take or do (i) at the request
or on the direction of or in reliance on the written advice of the Trust or
(ii) upon Oral or Written Instructions, provided, that neither ▇▇▇▇▇▇
Square nor any of its nominees shall be indemnified against any liability
to the Trust or to its Shareholders (or any expenses incident to such
liability) arising out of ▇▇▇▇▇▇ Square's own willful misfeasance, bad
faith, negligence or reckless disregard of its duties and obligations
specifically described in this Agreement.
14. 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 herein or as may be specifically agreed to by
▇▇▇▇▇▇ Square in writing. Neither ▇▇▇▇▇▇ Square nor any ▇▇▇▇▇▇ Square
Affiliate 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 that such loss. arise out of
▇▇▇▇▇▇ Square's own negligence, bad faith or willful misfeasance, or
reckless disregard of 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.
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 (except as provided in paragraph 9), flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
15. DURATION AND TERMINATION. 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.
16. NOTICES. 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.
17. FURTHER ACTIONS. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the
purposes hereof.
18. 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.
19. DELEGATION. On thirty (30) days' prior written notice to the
Trust, ▇▇▇▇▇▇ Square may assign all its rights and delegate its duties
hereunder to any wholly-owned direct or indirect subsidiary of Wilmington
Trust Company provided that (i) the delegate agrees with ▇▇▇▇▇▇ Square to
comply with all relevant provisions of the 1940 Act and applicable rules
and regulations; (ii) ▇▇▇▇▇▇ Square shall remain responsible for the
performance of all of its duties under this Agreement; (iii) ▇▇▇▇▇▇ Square
and such delegate shall promptly provide such information as the Trust may
request; and (iv) ▇▇▇▇▇▇ Square shall respond to such questions as the
Trust may ask, relative to the delegation, including (without limitation)
the capabilities of the delegate.
20. MISCELLANEOUS.
(a) 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.
(b) This Agreement embodies the entire agreement and understanding
between the parties thereto, and supersedes all prior agreements and
understandings, relating to the subject matter hereof, provided that the
parties hereto may embody in one or more separate documents their
agreement, if any, with respect to Written and/or Oral Instructions. 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 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 shall not be
affected thereby. This Agreement shall be binding and shall inure to the
benefits of the parties hereto and their respective successors.
(c) ▇▇▇▇▇▇ Square is hereby expressly put on notice of the limitation
of shareholder liability as set forth in the Trust Instrument 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.
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.
KALMAR POOLED TRUST
By: --------------------------------
▇▇▇▇▇▇ SQUARE MANAGEMENT CORPORATION
By: --------------------------------
APPENDIX A
ACCOUNTING SERVICES AGREEMENT
KALMAR POOLED TRUST
FUND LISTINGS AND FEE SCHEDULE
For accounting services provided to Kalmar Pooled Trust pursuant to
this Accounting Services Agreement, ▇▇▇▇▇▇ Square Management Corporation
shall receive an annual fee for the first class of each portfolio
calculated as follows:
$45,000 for assets up to $50 million, plus;
0.03% of the next $50 million in assets, plus;
0.02% of assets in excess of $100 million.
The fee paid by each additional class of a portfolio shall be
calculated as follows:
$12,000 for assets up to $50 million, plus;
0.02% of assets in excess of $50 million
PORTFOLIO'S:
-----------
Small Cap Portfolio
Class A Shares
Class B Shares
Micro-Cap Portfolio
This accounting fee shall be payable monthly as soon as practicable after
the last day of each month based on the average of the 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 with
respect to each Portfolio.
APPENDIX B
ACCOUNTING SERVICES AGREEMENT
KALMAR POOLED TRUST
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board of Trustees to
give Oral and Written Instructions on behalf of the Portfolios:
