TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into this 31st day of March, 2003,
by and between the Berkshire Funds (the "Trust"), a Delaware business trust
having its principal place of business at 000 Xxxxx Xxxxx, Xxxxx #000, Xxx
Xxxx, XX 00000, and Mutual Shareholder Services, LLC, a Delaware Limited
Liability Company ("MSS").
RECITALS:
A. The Trust is an open-end management investment company registered
with the United States Securities and Exchange Commission under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
B. The Trust desires to appoint MSS as its transfer agent and
dividend disbursing and redemption agent, and MSS desires to accept such
appointment.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. DUTIES OF MSS.
1.01 Subject to the terms and conditions set forth in this Agreement,
the Trust hereby employs and appoints MSS to act, and MSS agrees to act, as
transfer agent for the Trust's authorized and issued shares of beneficial
interest of each class of each portfolio of the Trust (the "Shares"), and as
dividend disbursing and redemption agent for the Trust.
1.02 MSS agrees that it will perform the following services:
(a) In accordance with procedures established from time to time
by agreement between the Trust and MSS, MSS shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate documen-
tation therefore to the Custodian of the Trust authorized by the
Board of Trustees of the Trust (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate
Shareholder account;
(iii) Receive for acceptance redemption requests and redemp-
tion directions and deliver the appropriate documentation
therefore to the Custodian;
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(iv) At the appropriate time as and when it receives monies
paid to it by the Custodian with respect to any redemption, pay
over or cause to be paid over in the appropriate manner such
monies as instructed by the redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and distri-
butions declared by the Trust;
(vii) Maintain records of account for and advise the Trust
and its Shareholders as to the foregoing;
(viii) Maintain an Anti-Money Laundering Program in compliance
with the USA Patriot Act of 2001 and regulation thereunder, and
provide to the Trust a copy of MSS's Anti-Money Laundering
Program;
(ix) Perform such services as are necessary to implement and
enforce the Trust's Anti-Money Laundering Program;
(x) Provide necessary and reasonable access to properly
authorized federal examiners so that they can obtain all neces-
sary information and records relating to the AML Program and to
inspect MSS's implementation and operation of the AML Program;
and
(xi) Record the issuance of shares of the Trust and main-
tain pursuant to SEC Rule 17Ad-10(e) a record of the total number
of shares of the Trust which are authorized, based upon data
provided to it by the Trust, and issued and outstanding. MSS
shall also provide the Trust on a regular basis with the total
number of shares which are authorized, issued and outstanding and
shall have no obligation, when recording the issuance of shares,
to monitor the issuance of such shares or to take cognizance of
any laws relating to the issue or sale of such shares, which
functions shall be the sole responsibility of the Trust.
(b) In addition, MSS shall perform all of the customary services
of a transfer agent, dividend disbursing and redemption agent, includ-
ing but not limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, receiving and tabulating
proxies, mailing Shareholder reports and prospectuses to current Share-
holders, withholding taxes for U.S. resident and non-resident alien
accounts, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and distri-
butions by federal authorities for all Shareholders, preparing and
mailing confirmation forms and statements of account to Shareholders
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for all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, and providing Shareholder account infor-
mation and provide a system and reports which will enable the Trust to
monitor the total number of Shares sold in each State.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Trust and MSS.
2. FEES AND EXPENSES
2.01 In consideration of the services to be performed by MSS pursuant
to this Agreement, the Trust agrees to pay MSS the fees set forth in the fee
schedule attached hereto as Exhibit "A".
2.02 In addition to the fee paid under Section 2.01 above, the Trust
agrees to reimburse MSS for out-of-pocket expenses or advances incurred by MSS
in connection with the performance of its obligations under this Agreement. In
addition, any other expenses incurred by MSS at the request or with the
consent of the Trust will be reimbursed by the Trust.
2.03 The Trust agrees to pay all fees and reimbursable expenses within
five days following the receipt of the respective billing notice. Postage for
mailing of dividends, proxies, Trust reports and other mailings to all share-
holder accounts shall be advanced to MSS by the Trust at least seven days
prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF MSS
MSS represents and warrants to the Trust that:
3.01 It is a Limited Liability Company duly organized and existing and
in good standing under the laws of the State of Delaware.
3.02 It is duly qualified to carry on its business in the State of
Ohio.
3.03 It is empowered under applicable laws and by its charter and by-
laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary facili-
ties, equipment and personnel to perform its duties and obligations under this
Agreement.
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3.06 MSS is duly registered as a transfer agent under the Securities
Act of 1934 and shall continue to be registered throughout the remainder of
this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Trust represents and warrants to MSS that:
4.01 It is a Business Trust duly organized and existing and in good
standing under the laws of Ohio.
4.02 It is empowered under applicable laws and by its Declaration of
Trust to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Declaration of Trust
have been taken to authorize it to enter into and perform this Agreement.
4.04 It is an open-end and diversified management investment company
registered under the 0000 Xxx.
4.05 A registration statement under the Securities Act of 1933 is
currently or will become effective and will remain effective, and appropriate
state securities law filings as required, have been or will be made and will
continue to be made, with respect to all Shares of the Trust being offered for
sale.
5. INDEMNIFICATION
5.01 MSS shall not be responsible for, and the Trust shall indemnify
and hold MSS harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of MSS or its agents or subcontractors required
to be taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misconduct.
(b) The Trust's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Trust's lack of good faith,
negligence or willful misconduct or which arise out of the breach of
any representation or warranty of the Trust hereunder.
(c) The reliance on or use by MSS or its agents or subcontract-
ors of information, records and documents which (i) are received by MSS
or its agents or subcontractors and furnished to it by or on behalf of
the Trust, and (ii) have been prepared and/or maintained by the Trust
or any other person or firm on behalf of the Trust.
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(d) The reliance on, or the carrying out by MSS or its agents or
subcontractors of, any instructions or requests of the Trust.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws
or regulations of any state that such Shares be registered in such
state or in violation of any stop order or other determination or
ruling by any federal agency or any state with respect to the offer or
sale of such Shares in such state.
5.02 MSS shall indemnify and hold the Trust harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to any action or failure or omis-
sion to act by MSS as a result of MSS's lack of good faith, gross or ordinary
negligence or willful misconduct.
5.03 At any time MSS may apply to any officer of the Trust for instru-
ctions, and may consult with legal counsel with respect to any matter arising
in connection with the services to be performed by MSS under this Agreement,
and MSS and its agents or subcontractors shall not be liable and shall be
indemnified by the Trust for any action taken or omitted by it in reliance
upon such instructions or upon the opinion of such counsel. MSS, its agents
and subcontractors shall be protected and indemnified in acting upon any paper
or document furnished by or on behalf of the Trust, reasonably believed to be
genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided MSS or its
agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Trust, and shall not be held to have
notice of any change of authority of any person, until receipt of written
notice thereof from the Trust. MSS, its agents and subcontractors shall also
be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of the
officers of the Trust, and the proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
5.04 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment
or transmission failure or damage reasonably beyond its control, or other
causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes.
5.05 Upon the assertion of a claim for which either party may be
required to indemnify the other, the party of 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 the defense of such claim. The party
seeking indemnification shall in no case confess any claim or make any compro-
mise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent.
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6. COVENANTS OF THE FUND AND MSS
6.01 The Trust shall promptly furnish to MSS a certified copy of the
resolution of the Board of Trustees of the Trust authorizing the appointment
of MSS and the execution and delivery of this Agreement.
6.02 MSS hereby agrees to establish and maintain facilities and pro-
cedures reasonably acceptable to the Trust for safekeeping of stock certif-
icates, check forms and facsimile signature imprinting devices, if any; and
for the preparation or use, and for keeping account of, such certificates,
forms and devices.
6.03 MSS shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the 1940 Act, as amended, and the Rules thereunder,
MSS agrees that all such records prepared or maintained by MSS relating to the
services to be performed by MSS hereunder are the property of the Trust and
will be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to the Trust on and in
accordance with its request.
6.04 MSS and the Trust agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any other
person, except as may be required by law.
6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, MSS will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such inspec-
tion. MSS reserves the right, however, to exhibit the Shareholder records to
any person whenever it is advised by its counsel that it may be held liable
for the failure to exhibit the Shareholder records to such person, and shall
promptly notify the Trust of any unusual request to inspect or copy the share-
holder records of the Trust or the receipt of any other unusual request to
inspect, copy or produce the records of the Trust.
7. TERM OF AGREEMENT
7.01 This Agreement shall become effective as of the date hereof and
shall remain in force for a period of three years; provided, however, that
each party to this Agreement have the option to terminate the Agreement
without penalty, upon 90 days prior written notice.
7.02 Should the Trust exercise its right to terminate, all out-of-
pocket expenses associated with the movement of records and material will be
borne by the Trust. Additionally, MSS reserves the right to charge for any
other reasonable expenses associated with such termination.
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8. MISCELLANEOUS
8.01 Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of the other
party. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
8.02 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the
Board of Trustees of the Trust.
8.03 The provisions of this Agreement shall be construed and inter-
preted in accordance with the laws of the State of Ohio as at the time in
effect and the applicable provisions of the 1940 Act. To the extent that the
applicable law of the State of Ohio, or any of the provisions here in,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
8.04 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
8.05 All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by
telex or facsimile, and shall be given to the following addresses (or such
other addresses as to which notice is given):
To the Trust: To MSS:
The Berkshire Funds Mutual Shareholder Services, LLC
000 Xxxxx Xxxxx 0000 Xxxxxxxxxxx Xxxx
Xxxxx #000 Xxxxx X
Xxx Xxxx, XX 00000 Xxxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
The Berkshire Funds Mutual Shareholder Services, LLC
By: /s/ Xxxxxxx X. Xxxxx III By: /s/ Xxxxxxx X. Xxxxx
Its: President Its: President
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EXHIBIT A
Shareholder Servicing Fees:
$11.50 annual fee per shareholder for non-Fund/Serv accounts
(i.e. direct shareholders).
$6.50 annual fee per shareholder for Fund/Serv accounts.
Minimum charge of $775.00 per month.
