See All of This Company's Exhibits
EX-99.H OTH MAT CONT
5
adminagreement.txt
ADMINSISTRATION AGREEMENT W/ FEE SCHEDULE
EXECUTION COPY
ADMINISTRATION AGREEMENT
This Administration Agreement ("Agreement") dated and effective as of April
13, 2007, is by and among State Street Bank and Trust Company, a Massachusetts
trust company (the "Administrator"), Baron Investment Funds Trust, a
Massachusetts business trust, and Baron Select Funds, a Delaware statutory trust
(each, a "Trust" and collectively, the "Trusts").
WHEREAS, Baron Investment Funds Trust is an open-end management investment
company currently comprised of multiple series and Baron Select Funds is an
open-end management investment company currently comprised of a single series
(each, a "Fund" and collectively, the "Funds"), and each Trust is registered
with the U.S. Securities and Exchange Commission ("SEC") by means of a
registration statement ("Registration Statement") under the Securities Act of
1933, as amended ("1933 Act"), and the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Trusts desire to retain the Administrator to furnish certain
administrative services to the Trusts, and the Administrator is willing to
furnish such services, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Appointment of Administrator
The Trusts hereby appoint the Administrator to act as administrator to the
Trusts for purposes of providing certain administrative services for the period
and on the terms set forth in this Agreement. The Administrator accepts such
appointment and agrees to render the services stated herein.
The Trusts currently consist of the Fund(s) as listed in Schedule A to this
Agreement. In the event that either of the Trusts establishes one or more
additional Fund(s) with respect to which it wishes to retain the Administrator
to act as administrator hereunder, the applicable Trust shall notify the
Administrator in writing. Upon written acceptance by the Administrator, such
Fund(s) shall become subject to the provisions of this Agreement to the same
extent as the existing Fund, except to the extent that such provisions
(including those relating to compensation and expenses payable) may be modified
with respect to such Fund in writing by the applicable Trust and the
Administrator at the time of the addition of such Fund.
2. Delivery of Documents
Each Trust will promptly deliver to the Administrator copies of each of the
following documents and all future amendments and supplements, if any:
a. The Trust's Declaration of Trust and By-laws;
b. The Trust's currently effective Registration Statement under the 1933
Act and the 1940 Act and each Prospectus and Statement of Additional
Information ("SAI") relating to the Fund(s) and all amendments and
supplements thereto as in effect from time to time;
c. Certified copies of the resolutions of the Board of Trustees of the
Trust (the "Board") authorizing (1) the Trust to enter into this
Agreement and (2) certain individuals on behalf of the Trust to take
any steps necessary in connection with this Agreement;
d. A copy of the investment advisory agreement between the Trust and its
investment adviser; and
e. Such other certificates, documents or opinions which the Administrator
may, in its reasonable discretion, deem necessary or appropriate in
the proper performance of its duties.
3. Representations and Warranties of the Administrator
The Administrator represents and warrants to the Trust that:
a. It is a Massachusetts trust company, duly organized and existing under
the laws of The Commonwealth of Massachusetts;
b. It has the corporate power and authority to carry on its business in
The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement;
d. No legal or administrative proceedings have been instituted or
threatened which would impair the Administrator's ability to perform
its duties and obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a material breach or
be in material conflict with any other agreement or obligation of the
Administrator or any law or regulation applicable to it.
4. Representations and Warranties of the Trusts
The Baron Investment Funds Trust represents and warrants to the
Administrator that:
a. It is a Massachusetts business trust, duly organized, existing and in
good standing under the laws of The Commonwealth of Massachusetts;
b. It has the requisite power and authority under applicable laws and by
its Declaration of Trust and By-laws to enter into and perform this
Agreement;
c. All requisite proceedings have been taken to authorize it to enter
into and perform this Agreement;
d. It is an investment company properly registered with the SEC under the
1940 Act;
e. The Registration Statement been filed and will be effective and remain
effective during the term of this Agreement. The Trust also warrants
to the Administrator that as of the effective date of this Agreement,
all necessary filings under the securities laws of the states in which
the Trust offers or sells its shares have been made;
f. No legal or administrative proceedings have been instituted or
threatened which would impair the Trust's ability to perform its
duties and obligations under this Agreement;
g. Its entrance into this Agreement will not cause a material breach or
be in material conflict with any other agreement or obligation of the
Trust or any law or regulation applicable to it; and
h. As of the close of business on the date of this Agreement, the Trust
is authorized to issue unlimited shares of beneficial interest.
The Baron Select Funds represents and warrants to the Administrator that:
a. It is a statutory trust, duly organized, existing and in good standing
under the laws of the State of Delaware;
b. It has the requisite power and authority under applicable laws and by
its Declaration of Trust and By-laws to enter into and perform this
Agreement;
c. All requisite proceedings have been taken to authorize it to enter
into and perform this Agreement;
d. It is an investment company properly registered with the SEC under the
1940 Act;
e. The Registration Statement been filed and will be effective and remain
effective during the term of this Agreement. The Trust also warrants
to the Administrator that as of the effective date of this Agreement,
all necessary filings under the securities laws of the states in which
the Trust offers or sells its shares have been made;
f. No legal or administrative proceedings have been instituted or
threatened which would impair the Trust's ability to perform its
duties and obligations under this Agreement;
g. Its entrance into this Agreement will not cause a material breach or
be in material conflict with any other agreement or obligation of the
Trust or any law or regulation applicable to it; and
h. As of the close of business on the date of this Agreement, the Trust
is authorized to issue unlimited shares of beneficial interest.
5. Administration Services
The Administrator shall provide the following services, subject to the
authorization and direction of each Trust and, in each case where appropriate,
the review and comment by the Trusts' independent accountants and legal counsel
and in accordance with procedures which may be established from time to time
between the Trusts and the Administrator:
Fund Administration Treasury Services
a. Prepare for the review by designated officer(s) of the Trusts
financial information regarding the Fund(s) that will be included in
the Trusts' semi-annual and annual shareholder reports, Form N-Q
reports and other quarterly reports (as mutually agreed upon),
including tax footnote disclosures where applicable;
b. Coordinate the audit of the Trusts' financial statements by the
Trusts' independent accountants, including the preparation of
supporting audit workpapers and other schedules, and make such reports
and recommendations to the Board (or the Audit Committee of the Board
("Audit Committee")) concerning the performance of the independent
accountants as the Board or the Audit Committee may reasonably
request;
c. Prepare for the review by designated officer(s) of the Trusts the
Trusts' periodic financial reports required to be filed with the SEC
on Form N-SAR and financial information required by Form N-1A, proxy
statements and such other reports, forms or filings as may be mutually
agreed upon;
d. Provide sub-certificates in connection with the certification
requirements of the Sarbanes-Oxley Act of 2002 with respect to the
services provided by the Administrator;
Fund Administration Tax Services
e. Compute tax basis provisions for both excise and income tax purposes;
f. Prepare the Fund(s)' federal, state, and local income tax returns and
extension requests for review and for execution and filing by the
Trusts' independent accountants and execution and filing by the
Trust's treasurer, including Form 1120-RIC, Form 8613 and Form
1099-MISC;
g. Coordinate Form 1099-DIV mailings; and
h. Review and sign off on annual minimum distribution calculations
(income and capital gain) prior to their declaration.
The Administrator shall perform such other services for the Trusts that are
mutually agreed to by the parties from time to time, for which the Trusts will
pay such fees as may be mutually agreed upon, including the Administrator's
reasonable out-of-pocket expenses. The provision of such services shall be
subject to the terms and conditions of this Agreement.
The Administrator shall provide the office facilities and the personnel
determined by it to perform the services contemplated herein.
6. Fees; Expenses; Expense Reimbursement
The Administrator shall receive from the Trusts such compensation for the
Administrator's services provided pursuant to this Agreement as may be agreed to
from time to time in a written Fee Schedule approved by the parties. The fees
are accrued daily and billed monthly and shall be due and payable upon receipt
of the invoice. Upon the termination of this Agreement before the end of any
month, the fee for the part of the month before such termination shall be
prorated according to the proportion which such part bears to the full monthly
period and shall be payable upon the date of termination of this Agreement. In
addition, the Trusts shall reimburse the Administrator for its out-of-pocket
costs incurred in connection with this Agreement. All rights of compensation and
expense reimbursement under this Agreement for services performed as of the
termination date shall survive the termination of this Agreement.
The Trusts agree promptly to reimburse the Administrator for any equipment
and supplies specially ordered by or for the Trusts through the Administrator
and for any other expenses not contemplated by this Agreement that the
Administrator may incur on the Trusts' behalf, but only, at the Trusts' request
or with the Trusts' consent.
The Trusts will bear all expenses that are incurred in its operation and
not specifically assumed by the Administrator. Expenses to be borne by the
Trusts, include, but are not limited to: organizational expenses; cost of
services of independent accountants and outside legal and tax counsel (including
such counsel's review of the Registration Statement, Form N-CSR, Form N-Q, Form
N-PX, From N-SAR, proxy materials, federal and state tax qualification as a
regulated investment company and other notices, registrations, reports, filings
and materials prepared by the Administrator under this Agreement); cost of any
services contracted for by the Trusts directly from parties other than the
Administrator; cost of trading operations and brokerage fees, commissions and
transfer taxes in connection with the purchase and sale of securities for the
Trusts; investment advisory fees; taxes, insurance premiums and other fees and
expenses applicable to its operation; costs incidental to any meetings of
shareholders including, but not limited to, legal and accounting fees, proxy
filing fees and the costs of preparation (e.g., typesetting, page changes and
all other print vendor and EDGAR charges, collectively referred to herein as
"Preparation"), printing, distribution and mailing of any proxy materials; costs
incidental to Board meetings, including fees and expenses of Board members; the
salary and expenses of any officer, director\trustee or employee of the Trusts;
costs of Preparation, printing, distribution and mailing, as applicable, of the
Trusts' Registration Statements and any amendments and supplements thereto and
shareholder reports; cost of Preparation and filing of the Trusts' tax returns,
Form N-1A, Form N-CSR, Form N-Q, Form N-PX and Form N-SAR, and all notices,
registrations and amendments associated with applicable federal and state tax
and securities laws; all applicable registration fees and filing fees required
under federal and state securities laws; the cost of fidelity bond and D&O/E&O
liability insurance; and cost of independent pricing services used in computing
the Fund(s)' net asset value.
The Administrator is authorized to and may employ, associate or contract
with such person or persons as the Administrator may deem desirable to assist it
in performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by the Administrator and
that the Administrator shall be as fully responsible to the Trusts for the acts
and omissions of any such person or persons as it is for its own acts and
omissions.
7. Instructions and Advice
a. At any time, the Administrator may apply to any officer of the Trusts or
his or her designee for instructions and may consult with its own legal counsel
or outside counsel for the Trusts or the independent accountants for the Trusts
at the expense of the Trusts, with respect to any matter arising in connection
with the services to be performed by the Administrator under this Agreement.
b. The Administrator shall not be liable, and shall be indemnified by the
Trusts, for any action taken or omitted by it in good faith in reliance upon any
such instructions or advice or upon any paper or document believed by it to be
genuine and to have been signed by the proper person or persons. The
Administrator shall not be held to have notice of any change of authority of any
person until receipt of written notice thereof from the Fund(s). Nothing in this
section shall be construed as imposing upon the Administrator any obligation to
seek such instructions or advice, or to act in accordance with such advice when
received.
8. Limitation of Liability and Indemnification
The Administrator shall be responsible for the performance only of such
duties as are set forth in this Agreement and, except as otherwise provided
under Section 6, shall have no responsibility for the actions or activities of
any other party, including other service providers. The Administrator shall have
no liability in respect of any loss, damage or expense suffered by the Trusts
insofar as such loss, damage or expense arises from the performance of the
Administrator's duties hereunder in reliance upon records that were maintained
for the Trusts by entities other than the Administrator prior to the
Administrator's appointment as administrator for the Trusts. The Administrator
shall have no liability for any error of judgment or mistake of law or for any
loss or damage resulting from the performance or nonperformance of its duties
hereunder unless solely caused by or resulting from the gross negligence or
willful misconduct of the Administrator, its officers or employees. The
Administrator shall not be liable for any special, indirect, incidental,
punitive or consequential damages, including lost profits, of any kind
whatsoever (including, without limitation, attorneys' fees) under any provision
of this Agreement or for any such damages arising out of any act or failure to
act hereunder, each of which is hereby excluded by agreement of the parties
regardless of whether such damages were foreseeable or whether either party or
any entity had been advised of the possibility of such damages. In any event,
the Administrator's cumulative liability for each calendar year (a "Liability
Period") with respect to the Trusts under this Agreement regardless of the form
of action or legal theory shall be limited to its total annual compensation
earned with respect to the Trusts and fees payable hereunder during the
preceding Compensation Period, as defined herein, for any liability or loss
suffered by the Trusts including, but not limited to, any liability relating to
qualification of the Trusts as a regulated investment company or any liability
relating to the Trusts' compliance with any federal or state tax or securities
statute, regulation or ruling during such Liability Period. "Compensation
Period" shall mean the calendar year ending immediately prior to each Liability
Period in which the event(s) giving rise to the Administrator's liability for
that period have occurred. Notwithstanding the foregoing, the Compensation
Period for purposes of calculating the annual cumulative liability of the
Administrator for the Liability Period commencing on the date of this Agreement
and terminating on December 31, 2007 shall be the date of this Agreement through
December 31, 2007, calculated on an annualized basis, and the Compensation
Period for the Liability Period commencing January 1, 2008 and terminating on
December 31, 2008 shall be the date of this Agreement through December 31, 2007,
calculated on an annualized basis.
The Administrator shall not be responsible or liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its control, including
without limitation, work stoppage, power or other mechanical failure, computer
virus, natural disaster, governmental action or communication disruption.
The Trusts shall indemnify and hold the Administrator and its directors,
officers, employees and agents harmless from all loss, cost, damage and expense,
including reasonable fees and expenses for counsel, incurred by the
Administrator resulting from any claim, demand, action or suit in connection
with the Administrator's acceptance of this Agreement, any action or omission by
it in the performance of its duties hereunder, or as a result of acting upon any
instructions reasonably believed by it to have been duly authorized by the
Trusts or upon reasonable reliance on information or records given or made by
the Trusts or their investment adviser, provided that this indemnification shall
not apply to actions or omissions of the Administrator, its officers or
employees in cases of its or their own gross negligence or willful misconduct.
The limitation of liability and indemnification contained herein shall
survive the termination of this Agreement.
9. Confidentiality
The Administrator agrees to treat all Confidential Information communicated
to it by the Trusts in connection with the activities contemplated by this
Agreement as confidential. "Confidential Information" shall mean all records and
information in the Administrator's possession relating to the Trusts and their
shareholders and shareholder accounts. The Administrator will not use or
disclose Confidential Information for purposes other than the activities
contemplated by this Agreement or except as required by law, court process or
pursuant to the lawful requirement of a governmental agency, or if the
Administrator is advised by counsel that it may incur liability for failure to
make a disclosure, or except at the request or with the written consent of the
Trusts. Confidential Information will not include information which: (a) is or
becomes available to the general public through no fault of the Administrator;
(b) is independently developed by the Administrator; or (c) is rightfully
received by the Administrator from a third party without a duty of
confidentiality. Notwithstanding the foregoing, the Trusts acknowledge that the
Administrator may provide access to and use of Confidential Information relating
to the Trusts to the Administrator's respective employees, contractors, agents,
professional advisors, auditors or persons performing similar functions. In
addition, the Administrator may aggregate Fund data with similar data of other
customers of the Administrator ("Aggregated Data") and may use Aggregated Data
for purposes of constructing statistical models so long as such Aggregated Data
represents such a sufficiently large sample that no Fund data can be identified
either directly or by inference or implication.
10. Compliance with Governmental Rules and Regulations; Records
The Trusts assume full responsibility for complying with all securities,
tax, commodities and other laws, rules and regulations applicable to it.
In compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Administrator agrees that all records which it maintains for the Trusts shall at
all times remain the property of the Trusts, shall be readily accessible during
normal business hours, and shall be promptly surrendered upon the termination of
the Agreement or otherwise upon written request. The Administrator further
agrees that all records that it maintains for the Trusts pursuant to Rule 31a-1
under the 1940 Act will be preserved for the periods prescribed by Rule 31a-2
under the 1940 Act unless any such records are earlier surrendered as provided
above. Records may be surrendered in either written or machine-readable form, at
the option of the Administrator.
11. Services Not Exclusive
The services of the Administrator are not to be deemed exclusive, and the
Administrator shall be free to render similar services to others. The
Administrator shall be deemed to be an independent contractor and shall, unless
otherwise expressly provided herein or authorized by the Trusts from time to
time, have no authority to act or represent the Trusts in any way or otherwise
be deemed an agent of the Trusts.
12. Term, Termination and Amendment
(a) This Agreement shall become effective as of the date first above
written. The Agreement shall remain in effect unless terminated by
either party on sixty (60) days' prior written notice. In the event
other Fund(s) are added to this Agreement as set forth herein,
termination of this Agreement with respect to any given Fund shall in
no way affect the continued validity of this Agreement with respect to
any other Fund.
(b) Upon termination of this Agreement, the Trusts shall pay to the
Administrator such compensation and any reimbursable expenses as may
be due under the terms hereof as of the date of such termination,
including reasonable out-of-pocket expenses associated with such
termination.
(c) This Agreement may be modified or amended from time to time by mutual
written agreement of the parties hereto.
13. Notices
Any notice or other communication authorized or required by this Agreement
to be given to either party shall be in writing and deemed to have been given
when delivered in person or by confirmed facsimile, or posted by certified mail,
return receipt requested, to the following address (or such other address as a
party may specify by written notice to the other): if to the Trusts: Baron
Capital, Inc., 767 Fifth Avenue, 49th Floor, New York, NY 10153 Attn: General
Counsel, fax: 212-583-2014; if to the Administrator: State Street Bank and Trust
Company, P.O. Box 5049, Boston, MA 02206-5049, Attn: Fund Administration Legal
Department, fax: 617-662- 3805.
14. Non-Assignability
This Agreement shall not be assigned by either party hereto without the
prior consent in writing of the other party, except that the Administrator may
assign this Agreement to a successor of all or a substantial portion of its
business, or to a party controlling, controlled by or under common control with
the Administrator.
15. Successors
This Agreement shall be binding on and shall inure to the benefit of the
Trusts and the Administrator and their respective successors and permitted
assigns.
16. Entire Agreement
This Agreement contains the entire understanding between the parties hereto
with respect to the subject matter hereof and supersedes all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. Waiver
The failure of a party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver nor shall it deprive
such party of the right thereafter to insist upon strict adherence to that term
or any term of this Agreement. Any waiver must be in writing signed by the
waiving party.
18. Severability
If any provision of this Agreement is invalid or unenforceable, the balance
of the Agreement shall remain in effect, and if any provision is inapplicable to
any person or circumstance it shall nevertheless remain applicable to all other
persons and circumstances.
19. Governing Law
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
20. Reproduction of Documents
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, xerographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties hereto all/each agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such reproduction
was made by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
21. Counterparts
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
BARON INVESTMENT FUNDS TRUST
By: /s/Linda S. Martinson
------------------------
Name: Linda S. Martinson
Title: Chief Operating Officer & General Counsel
BARON SELECT FUNDS
By: /s/Linda S. Martinson
------------------------
Name: Linda S. Martinson
Title: Chief Operating Officer & General Counsel
STATE STREET BANK AND TRUST COMPANY
By: /s/Gary L. French
-------------------------
Name: Gary L. French
Title: Senior Vice President
ADMINISTRATION AGREEMENT
SCHEDULE A
Listing of Fund(s)
Fund
Baron Investment Funds Trust
----------------------------
Baron Asset Fund
Baron Growth Fund
Baron Small Cap Fund
Baron iOpportunity Fund
Baron Fifth Avenue Growth Fund
Baron Select Funds
------------------
Baron Partners Fund
STATE STREET BANK AND TRUST COMPANY
ADMINISTRATION AGREEMENT
FEE SCHEDULE FOR BARON INVESTMENT FUNDS TRUST
AND BARON SELECT FUNDS
-------------------------------------------------------------------------------
I. FEE FOR TAX ADMINISTRATION SERVICES:
The annual fee for the tax administration services as set forth in the
Administration Agreement for the Baron Investment Funds Trust and Baron
Select Funds will be $12,500 per Fund.
II. FINANCIAL STATEMENT SERVICES:
The annual fee for the financial statement services as set forth in the
Administration Agreement for the Baron Investment Funds Trust and Baron
Select Funds will be $14,000 per Fund.
III. OUT-OF-POCKET EXPENSES:
A billing for the recovery of appliacable out-of-pocket expenses will be
made as of the end of each month. Out-of-pocket expenses include, but are
not limited to the following:
o Communications costs
o Postage and insurance
o Courier service
o Duplicating
o Non-recurring legal, audit fees or other professional fees
o Travel and lodging for Board meetings or operations meetings if
attendance is required
IV. TERM:
The parties agree that this fee schedule shall remain in effect for one
year, and is renewable from year to year thereafter until it is revised as
a result of negotiations initiated by either party.
BARON INVESTMENT FUNDS TRUST
By: /s/Linda S. Martinson
------------------------
Name: Linda S. Martinson
Title: Chief Operating Officer & General Counsel
Date: April 13, 2007
BARON SELECT FUNDS
By: /s/Linda S. Martinson
------------------------
Name: Linda S. Martinson
Title: Chief Operating Officer & General Counsel
Date: April 13, 2007
STATE STREET BANK AND TRUST COMPANY
By: /s/Gary L. French
-------------------------
Name: Gary L. French
Title: Senior Vice President
Date: April 13, 2007