DIVIDEND DISBURSING AND TRANSFER AGENT AGREEMENT
THIS DIVIDEND DISBURSING AND TRANSFER AGENT AGREEMENT (“Agreement”) is
made and entered into as of July 16, 2009 by and between STARBOARD INVESTMENT
TRUST, a Delaware statutory trust (“Trust”), and NOTTINGHAM SHAREHOLDER
SERVICES, LLC, a North Carolina limited liability company (“Transfer
Agent”).
WHEREAS, the Trust is an open-end management investment company of the
series type which is registered under the Investment Company Act of 1940 (“1940
Act”); and
WHEREAS, the Transfer Agent is in the business of providing dividend
disbursing, transfer agent, and shareholder services to investment
companies;
NOW THEREFORE, the Trust and the Transfer Agent do mutually promise and
agree as follows:
1. Employment. The Trust hereby employs Transfer
Agent to act as dividend disbursing and transfer agent for each series of shares
of the Trust listed on Schedule 1 (each a “Fund”). Transfer Agent, at its own
expense, shall render the services and assume the obligations herein set forth
subject to being compensated therefore as herein provided.
2. Delivery of
Documents. The Trust has furnished the Transfer Agent
with copies properly certified or authenticated of each of the
following:
a) The
Trust’s Declaration of Trust (“Trust Instrument”) and Certificate of Trust, as
filed with the State of Delaware (such Trust Instrument, as presently in effect
and as it shall from time to time be amended);
b) The
Trust’s By-Laws (such By-Laws, as presently in effect and as they shall from
time to time be amended, are herein called the “By-Laws”);
c) Resolutions
of the Trust’s board of trustees (“Board of Trustees”) authorizing the
appointment of the Transfer Agent and approving this Agreement; and
d) The
Trust’s registration statement (“Registration Statement”) on Form N-1A under the
1940 Act and under the Securities Act of 1933 as amended, (“1933 Act”),
including all exhibits, relating to shares of beneficial interest of, and
containing the prospectus (“Prospectus”) of, each Fund of the Trust (herein
called the “Shares”) as filed with the Securities and Exchange Commission
(“SEC”) and all amendments thereto.
The Trust will also furnish the Transfer Agent with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing.
3. Duties of the
Transfer Agent. Subject to the policies and direction
of the Board of Trustees, the Transfer Agent will provide day-to-day supervision
for the dividend disbursing, transfer agent, and shareholder servicing
operations of each of the Trust’s Funds. Services to be provided shall be in
accordance with the Trust’s organizational and registration documents as listed
in paragraph 2 hereof and with the Prospectus of each Fund of the Trust. The
Transfer Agent further agrees that it:
a) Will
conform to all applicable rules and regulations of the SEC and will, in
addition, conduct its activities under this Agreement in accordance with
regulations of any other federal and state agency that may now or in the future
have jurisdiction over its activities;
b) Will
provide, at its expense, the non-executive personnel and data processing
equipment and software necessary to perform the Shareholder Servicing functions
shown on Exhibit A hereof; and
c) Will
provide all office space and general office equipment necessary for the dividend
disbursing, transfer agent, and shareholder servicing activities of the Trust
except as may be provided by third parties pursuant to separate agreements with
the Trust.
Notwithstanding anything contained in this Agreement to the contrary, the
Transfer Agent (including its directors, officers, employees, and agents) shall
not be required to perform any of the duties of, assume any of the obligations
or expenses of, or be liable for any of the acts or omissions of, any investment
advisor of a Fund of the Trust or other third party subject to separate
agreements with the Trust. The Transfer Agent shall not be responsible hereunder
for the administration of the code of ethics of the Trust (“Code of Ethics”)
which shall be under the responsibility of the investment advisors, except
insofar as the Code of Ethics applies to the personnel of the Transfer Agent. It
is the express intent of the parties hereto that the Transfer Agent shall not
have control over or be responsible for the placement (except as specifically
directed by a shareholder of the Trust), investment or reinvestment of the
assets of any Fund of the Trust. The Transfer Agent may from time to time,
subject to the approval of the Board of Trustees, obtain at its own expense the
services of consultants or other third parties to perform part or all of its
duties hereunder, and such parties may be affiliates of the Transfer
Agent.
4. Services Not
Exclusive. The services furnished by the Transfer
Agent hereunder are not to be deemed exclusive, and the Transfer Agent shall be
free to furnish similar services to others so long as its services under this
Agreement are not impaired thereby.
5. Books and
Records. In compliance with the requirements of Rule
31a-3 under the 1940 Act, the Transfer Agent hereby agrees that all records that
it maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust’s
request.
6. Expenses. During the term of this Agreement,
the Transfer Agent will furnish at its own expense its office space and the
executive, supervisory, and clerical personnel reasonably necessary to perform
its obligations under this Agreement. The Trust assumes and shall be responsible
for all other expenses of the Trust and/or Fund(s) not otherwise allocated in
this Agreement.
7. Compensation. For the services provided and
the expenses assumed by the Transfer Agent pursuant to this Agreement, the Trust
will pay the Transfer Agent and the Transfer Agent will accept as full
compensation the fees and expenses as set forth on Exhibit B attached hereto.
Special projects, not included herein and requested in writing by the Board of
Trustees, shall be completed by the Transfer Agent and invoiced to the Trust on
terms mutually agreed upon.
8. Limitation of
Liability. The Transfer Agent shall not be liable for
any loss, damage, or liability related to or resulting from the placement
(except as specifically directed by a Shareholder of the Trust), investment, or
reinvestment of assets in any Fund of the Trust or the acts or omissions of any
Fund’s investment advisor or any other third party subject to separate
agreements with the Trust. Further, the Transfer Agent shall not be liable for
any error of judgment or mistake of law or for any loss or damage suffered by
the Trust in connection with the performance of this Agreement or any agreement
with a third party, except a loss resulting directly from (i) a breach of
fiduciary duty on the part of the Transfer Agent with respect to the receipt of
compensation for services; or (ii) willful misfeasance, bad faith, gross
negligence, or reckless disregard on the part of the Transfer Agent in the
performance of its duties or from reckless disregard by it of its duties under
this Agreement.
The provisions contained in section shall survive the expiration or other
termination of this Agreement, shall be deemed to include and protect the
Transfer Agent and its directors, officers, employees, and agents and shall
inure to the benefit of its/their respective successors, assigns, and personal
representatives.
9. Indemnification
of Transfer Agent. Subject to the limitations set
forth in this section, and provided the Transfer Agent has exercised reasonable
customary care in the performance of its duties under this Agreement, the Trust
shall indemnify, defend, and hold harmless (from the assets of the Fund or Funds
to which the conduct in question relates) the Transfer Agent against all loss,
damage, and liability, including but not limited to amounts paid in satisfaction
of judgments, in compromise or as fines and penalties, and expenses, including
reasonable accountants’ and counsel fees, incurred by the Transfer Agent in
connection with the defense or disposition of any action, suit, or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, related to or resulting from this Agreement or the performance
of services hereunder, except with respect to any matter as to which it has been
determined that the loss, damage, or liability is a direct result of (i) a
breach of fiduciary duty on the part of the Transfer Agent with respect to the
receipt of compensation for services; or (ii) willful misfeasance, bad faith,
gross negligence, or reckless disregard on the part of the Transfer Agent in the
performance of its duties or from reckless disregard by it of its duties under
this Agreement (either and both of the conduct described in clauses (i) and (ii)
above being referred to hereinafter as “Disabling Conduct”). A determination
that the Transfer Agent is entitled to indemnification may be made by (i) a
final decision on the merits by a court or other body before whom the proceeding
was brought that the Transfer Agent was not liable by reason of Disabling
Conduct, (ii) dismissal of a court action or an administrative proceeding
against the Transfer Agent for insufficiency of evidence of Disabling Conduct,
or (iii) a reasonable determination, based upon a review of the facts, that the
Transfer Agent was not liable by reason of Disabling Conduct by (a) vote of a
majority of a quorum of Trustees who are neither “interested persons” of the
Trust as the quoted phrase is defined in Section 2(a)(19) of the 1940 Act nor
parties to the action, suit or other proceeding on the same or similar grounds
that is then or has been pending or threatened (such quorum of such Trustees
being referred to hereinafter as the “Independent Trustees”) or (b) an
independent legal counsel approved by the Trustees, including a majority of
Independent Trustees, (hereinafter referred to as an “independent legal
counsel”) in a written opinion. Expenses, including accountants’ and counsel
fees so incurred by the Transfer Agent (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), shall be
paid from time to time by the Fund or Funds to which the conduct in question
related in advance of the final disposition of any such action, suit or
proceeding; provided, that the Transfer Agent shall have undertaken to repay the
amounts so paid unless it is ultimately determined that it is entitled to
indemnification of such expenses under this section and if (i) the Transfer
Agent shall have provided security for such undertaking, (ii) the Trust shall be
insured against losses arising by reason of any lawful advances, or (iii) a
majority of the Independent Trustees, or an independent legal counsel in a
written opinion, shall have determined, based on a review of readily available
facts (as opposed to a full trial-type inquiry), that there is reason to believe
that the Transfer Agent ultimately will be entitled to indemnification
hereunder.
As to any matter disposed of by a compromise payment by the Transfer
Agent referred to in this section, pursuant to a consent decree or otherwise, no
such indemnification either for said payment or for any other expenses shall be
provided unless such indemnification shall be approved (i) by a majority of the
Independent Trustees or (ii) by an independent legal counsel in a written
opinion. Approval by the Independent Trustees pursuant to clause (i) shall not
prevent the recovery from the Transfer Agent of any amount paid to the Transfer
Agent in accordance with either of such clauses as indemnification of the
Transfer Agent is subsequently adjudicated by a court of competent jurisdiction
not to have acted in good faith in the reasonable belief that the Transfer
Agent’s action was in or not opposed to the best interests of the Trust or to
have been liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard of the duties
involved in its conduct under the Agreement.
The right of indemnification provided by this section shall not be
exclusive of or affect any of the rights to which the Transfer Agent may be
entitled. Nothing contained in this section shall affect any rights to
indemnification to which Trustees, officers, or other personnel of the Trust,
and other persons may be entitled by contract or otherwise under law, nor the
power of the Trust to purchase and maintain liability insurance on behalf of any
such person.
The Board of Trustees of the Trust shall take all such action as may be
necessary and appropriate to authorize the Trust hereunder to pay the
indemnification required by this section including, without limitation, to the
extent needed, to determine whether the Transfer Agent is entitled to
indemnification hereunder and the reasonable amount of any indemnity due it
hereunder, or employ independent legal counsel for that purpose.
The provisions contained in section shall survive the expiration or other
termination of this Agreement, shall be deemed to include and protect the
Transfer Agent and its directors, officers, employees, and agents and shall
inure to the benefit of its/their respective successors, assigns, and personal
representatives.
10. Confidentiality. The Transfer Agent agrees, on
behalf of itself and its officers, directors, agents, and employees, to treat as
confidential all records and other information relating to the Trust and its
prior, present, and future shareholders (“Confidential Information”) and to not
use or disclose the Confidential Information for any purpose other than in
performance of its responsibilities and duties under the Agreement.
Notwithstanding the forgoing, the Transfer Agent may divulge the Confidential
Information (i) with the prior written consent of the Trust; (ii) when the
Transfer Agent, in good faith, believes it may be exposed to civil or criminal
contempt proceedings for failure to comply with court orders or when requested
by duly constituted governmental authorities or the National Association of
Securities Dealers pursuant to their respective legal authority, upon prior
written notice to the Trust, unless prohibited by the court order or
governmental authority; (iii) to the Trust’s investment adviser(s),
administrator, distributor, custodian, outside legal counsel, or independent
public accountants, in the ordinary course of business, to the extent necessary
for those service providers to perform their respective services to the Trust;
(iv) to the Trust, when requested by the Trust; or (v) when requested by a
shareholder, but only with respect to Confidential Information that specifically
relates to such shareholder and the shareholder’s account. For purposes of this
section, the following records and other information shall not be considered
Confidential Information: any record or other information relating to the Trust
and its prior, present, and future shareholders (a) which is or becomes publicly
available through no negligent or unauthorized act or omission by the Transfer
Agent; (b) which is disseminated by the Trust in a public filing with the SEC or
posted on the website of the Trust, the Fund, the Fund’s investment adviser, or
any of the Fund’s other service providers for general public review; (c) which
is lawfully obtained from third parties who are not under an obligation of
confidentiality to the Trust or its prior, present, and future shareholders; or
(d) previously known by the Transfer Agent prior to the date of the
Agreement.
11. Duration and
Termination. This Agreement shall become effective as
of the date hereof and shall thereafter continue in effect unless terminated as
herein provided. This Agreement may be terminated by either party hereto
(without penalty) at any time by giving not less than 60 days’ prior written
notice to the other party hereto. Upon termination of this Agreement, the Trust
shall pay to the Transfer Agent such compensation as may be due as of the date
of such termination, and shall likewise reimburse the Transfer Agent for any
out-of-pocket expenses and disbursements reasonably incurred by the Transfer
Agent to such date.
12. Amendment. This Agreement may be amended by
mutual written consent of the parties. If, at any time during the existence of
this Agreement, the Trust deems it necessary or advisable in the best interests
of the Trust that any amendment of this Agreement be made in order to comply
with the recommendations or requirements of the SEC or state regulatory agencies
or other
governmental authority, or to obtain any advantage under state or federal
laws, and shall notify the Transfer Agent of the form of Amendment which it
deems necessary or advisable and the reasons therefore, and if the Transfer
Agent declines to assent to such amendment, the Trust may terminate this
Agreement forthwith.
13. Notice. Any notice that is required to be
given by the parties to each other under the terms of this Agreement shall be in
writing and will be deemed sufficient if personally delivered or sent by
registered or certified mailed, postage prepaid, address to the other party at
the principal place of business of such party. Notices shall be effective upon
delivery.
14. Construction. This Agreement shall be governed
and enforced in accordance with the laws of the State of North Carolina without
regard to the principles of the conflict of laws or the choice of laws. If any
provision of this Agreement, or portion thereof, shall be determined to be void
or unenforceable by any court of competent jurisdiction, then such determination
shall not affect any other provision of this Agreement, or portion thereof, all
of which other provisions and portions thereof shall remain in full force and
effect. If any provision of this Agreement, or portion thereof, is capable of
two interpretations, one of which would render the provision, or portion
thereof, void and the other of which would render the provision, or portion
thereof, valid, then the provision, or portion thereof, shall have the meaning
that renders it valid.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers effective as of the date indicated
above.
By: /s/ Xxxx X.
Xxxxxxx
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Print Name: Xxxx X. Xxxxxxx
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Title:
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Chairman
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NOTTINGHAM SHAREHOLDER
SERVICES, LLC
By: /s/
Xxx Xxxxxxx
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Print Name: Xxx Xxxxxxx
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Title:
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Managing Member
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EXHIBIT
A
Dated: July 16, 2009
SHAREHOLDER SERVICING
FUNCTIONS
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(1)
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Process new accounts.
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(2)
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Process purchases of Fund shares, both initial and subsequent in
accordance with conditions set forth in the Fund’s
prospectus.
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(3)
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Transfer shares of capital stock to an existing account or to a new
account upon receipt of required documentation in good order.
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(4)
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Distribute dividends and/or capital gain distributions. This
includes disbursement as cash or reinvestment and to change the
disbursement option at the request of shareholders.
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(5)
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Process exchanges between funds (process and direct
purchase/redemption and initiate new account or process to existing
account).
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(6)
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Make miscellaneous changes to records, including, but not
necessarily limited to, address changes and changes in plans (such as
systematic withdrawal, dividend reinvestment, etc.).
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(7)
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Prepare and mail a year-to-date confirmation and statement as each
transaction is recorded in a shareholder account as follows: original to
shareholder. Duplicate confirmations to be available on request within
current year.
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(8)
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Handle telephone calls and correspondence in reply to shareholder
requests except those items otherwise set forth herein.
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(9)
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Daily control and reconciliation of Fund shares.
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(10)
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Prepare address labels or confirmations for four reports to
shareholders per year.
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(11)
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Mail and tabulate proxies for one Meeting of Shareholders annually,
including preparation of certified shareholder list and daily report to
Fund management, if required.
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(12)
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Prepare, with the assistance of the Trust’s accountants, and mail
annual Form 1099 and 5498 to shareholders to whom dividends or
distributions are paid, with a copy for the IRS.
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(13)
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Provide readily obtainable data that may from time to time be
requested for audit purposes.
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(14)
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Replace lost or destroyed checks.
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(15)
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Continuously maintain all records for active and closed accounts
according to the Investment Company Act of 1940 and regulations provided
thereunder.
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EXHIBIT
B
Dated: July 16, 2009
COMPENSATION
SCHEDULE
For the services delineated in the DIVIDEND DISBURSING AND TRANSFER AGENT
AGREEMENT, the Transfer Agent shall be compensated monthly, according to the
following fee schedule.
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Shareholder servicing fee:
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$21.00 per shareholder per year per fund
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Minimum fee of $1,750 per month per fund, plus $500 per month for each
additional class of shares.
In addition, the Transfer Agent shall be entitled to reimbursement of
actual out-of-pocket expenses incurred by the Transfer Agent on behalf of the
Trust or the Fund.
SCHEDULE
1
Updated:
November 23, 2009
SERIES OF THE
TRUST
The following fund(s) are covered by the Agreement:
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1.
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Caritas All-Cap Growth Fund
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2.
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FMX Growth Allocation Fund
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3.
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FMX Total Return Fund
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4. Nile Pan
Africa Equity Fund
5. Nile East and
Southern Africa Fund
6. Nile West
Africa Fund
7. Nile Africa
Natural Resources Fund
