Exhibit 99.h(2)
FORM OF TRANSFER AGENT AND SHAREHOLDER SERVICES AGREEMENT
THIS AGREEMENT is made as of this ___ day of ________, 2012, by and
between _______________ (the "Trust"), a ____________________________ having its
principal place of business at _______________________________________________
________________, and ULTIMUS FUND SOLUTIONS, LLC ("Ultimus"), a limited
liability company organized under the laws of the State of Ohio and having its
principal place of business at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx
00000.
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires that Ultimus perform certain transfer agent and
shareholder services for each series of the Trust, listed on Schedule A attached
hereto and made part of this Agreement, as such Schedule A may be amended from
time to time (individually referred to herein as the "Fund" and collectively as
the "Funds"); and
WHEREAS, Ultimus is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF ULTIMUS.
The Trust hereby retains Ultimus to furnish the Trust with the transfer
agent and shareholder services as set forth below. Ultimus hereby accepts such
employment to perform such duties.
(a) Shareholder Transactions
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(i) Process shareholder purchase and redemption orders in
accordance with conditions set forth in the Trust's
prospectus(es);
(ii) Set up account information, including address, dividend
option, taxpayer identification numbers and wire instructions;
(iii) Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended (the "1934 Act");
(iv) Issue periodic statements for shareholders;
(v) Process transfers and exchanges;
(vi) Act as a service agent and process dividend payments,
including the purchase of new shares, through dividend
reimbursement;
(vii) Record the issuance of shares and maintain pursuant to Rule
17Ad-10(e) of the 1934 Act a record of the total number of
shares of each Fund which are authorized, based upon data
provided to it by the Trust, and issued and outstanding;
(viii) Perform such services as are required to comply with Rules
17a-24 and 17Ad-17 of the 1934 Act (the "Lost Shareholder
Rules");
(ix) Provide cost basis reporting for shareholders; and
(x) Administer and/or perform all other customary services of a
transfer agent.
(b) Shareholder Information Services
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(i) Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
(ii) Produce detailed history of transactions through duplicate or
special order statements upon request.
(iii) Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to
current shareholders.
(iv) Respond as appropriate to all inquiries and communications
from shareholders relating to shareholder accounts.
(c) Compliance Reporting
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(i) Provide reports to the Securities and Exchange Commission (the
"SEC") and the states in which the Funds are registered.
(ii) Prepare and distribute appropriate Internal Revenue Service
forms for shareholder income and capital gains.
(iii) Issue tax withholding reports to the Internal Revenue Service.
(d) Dealer/Load Processing (if applicable)
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(i) Provide reports for tracking rights of accumulation and
purchases made under a Letter of Intent.
(ii) Account for separation of shareholder investments from
transaction sale charges for purchase of Fund shares.
(iii) Calculate fees due under Rule 12b-1 plans for distribution and
marketing expenses.
(iv) Track sales and commission statistics by dealer and provide
for payment of commissions on direct shareholder purchases in
a load Fund.
(e) Shareholder Account Maintenance
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(i) Maintain all shareholder records for each account in each
Fund.
(ii) Issue customer statements on scheduled cycle, providing
duplicate second and third party copies if required.
(iii) Record shareholder account information changes.
(iv) Maintain account documentation files for each shareholder.
Ultimus shall perform such other services for the Trust that are mutually
agreed upon by the parties from time to time either at no additional fees or for
such reasonable and customary fees as are mutually agreed upon by the parties;
provided, however that the Trust may retain third parties to perform such other
services. Such services may include performing internal audit examination;
mailing the annual reports of the Funds; preparing an annual list of
shareholders; and mailing notices of shareholders' meetings, proxies and proxy
statements, for all of which the Trust will pay Ultimus' out-of-pocket expenses.
2. SUBCONTRACTING.
Ultimus may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder; provided,
however, that Ultimus shall not be relieved of any of its obligations under this
Agreement by the appointment of such subcontractor and provided further, that
Ultimus shall be responsible, to the extent provided in Section 7 hereof, for
all acts of such subcontractor as if such acts were its own.
3. COMPENSATION OF ULTIMUS.
The Trust, on behalf of each Fund, shall pay for the services to be
provided by Ultimus under this Agreement in accordance with, and in the manner
set forth in, Schedule B attached hereto, as such Schedule may be amended from
time to time.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, Ultimus' compensation for that
part of the month in which the Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above. Payment
of Ultimus' compensation for the preceding month shall be made promptly.
4. REIMBURSEMENT OF EXPENSES.
In addition to paying Ultimus the fees described in Schedule B attached
hereto, the Trust, on behalf of each Fund, agrees to reimburse Ultimus for its
reasonable out-of-pocket expenses in providing services hereunder, including
without limitation the following:
(a) All freight and other delivery and bonding charges incurred by
Ultimus in delivering materials to and from the Trust;
(b) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by Ultimus in
communication with the Trust, the Trust's investment adviser(s) or
custodian, dealers or others as required for Ultimus to perform the
services to be provided hereunder;
(c) The cost of microfilm, microfiche or other methods of storing
records or other materials;
(d) The cost of printing and generating confirmations, statements and
other documents and the cost of mailing such documents to
shareholders and others;
(e) All expenses incurred in connection with any licenses of software,
subscriptions to databases, custom programming or systems
modifications required to provide any special reports or services
requested by the Trust;
(f) Any expenses Ultimus shall incur at the direction of an officer of
the Trust thereunto duly authorized other than an employee or other
affiliated person of Ultimus who may otherwise be named as an
authorized representative of the trust for certain purposes;
(g) A reasonable allocation of the costs associated with the preparation
of Service Organization Control 1 Reports ("SSAE 16 Reports"); and
(h) Any additional expenses reasonably incurred by Ultimus in the
performance of its duties and obligations under this Agreement.
5. EFFECTIVE DATE.
This Agreement shall become effective with respect to a Fund as of the
date first written above (or, if a particular Fund is not in existence on that
date, on the date such Fund commences operation) (the "Effective Date").
6. TERM OF THIS AGREEMENT.
The term of this Agreement shall continue in effect, unless earlier
terminated by either party hereto as provided hereunder, for a period of two
years. Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed automatically for successive one-year periods.
This Agreement may be terminated with respect to any Fund without penalty
for "cause" (as defined herein) upon the provision of thirty (30) days' advance
written notice by the party alleging cause. After the initial two-year term,
this Agreement may also be terminated with respect to any Fund without penalty
by provision of sixty (60) days' written notice.
For purposes of this Agreement, "cause" shall mean: (i) a material breach
of this Agreement that has not been remedied within thirty (30) days following
written notice of such breach from the non-breaching party, (ii) a series of
negligent acts or omissions or breaches of this Agreement which, in the
aggregate, constitute in the reasonable judgment of the Trust, a serious failure
to perform satisfactorily Ultimus' obligations hereunder; (iii) a final,
unappealable judicial, regulatory or administrative ruling or order in which the
party to be terminated has been found guilty of criminal or unethical behavior
in the conduct of its business; or (iv) financial difficulties on the part of
the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or the modification or alteration of the rights of
creditors.
Notwithstanding the foregoing, after such termination for so long as
Ultimus, with the written consent of the Trust, in fact continues to perform any
one or more of the services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Compensation due Ultimus and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding such termination.
Ultimus shall be entitled to collect from the Trust, in addition to the
compensation described in Schedule B, the amount of all of Ultimus' cash
disbursements for services in connection with Ultimus' activities in effecting
such termination, including without limitation, the delivery to the Trust and/or
its designees of the Trust's property, records, instruments and documents.
7. STANDARD OF CARE.
The duties of Ultimus shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against Ultimus
hereunder. Ultimus shall use its best efforts in the performance of its duties
hereunder and act in good faith in performing the services provided for under
this Agreement. Ultimus shall be liable for any damages arising directly or
indirectly out of Ultimus' failure to perform its duties under this Agreement to
the extent such damages arise directly or indirectly out of Ultimus' willful
misfeasance, bad faith, gross negligence in the performance of its duties, or
reckless disregard of its obligations and duties hereunder, provided, however,
that Ultimus' maximum cumulative aggregate liability under this Agreement shall
be limited to the total fees Ultimus was paid in the most-recent twelve-month
period. (As used in this Section 7, the term "Ultimus" shall include directors,
officers, employees and other agents of Ultimus as well as Ultimus itself.)
Without limiting the generality of the foregoing or any other provision of
this Agreement, (i) Ultimus shall not be liable for losses beyond its reasonable
control, provided that Ultimus has acted in accordance with the standard of care
set forth above; and (ii) Ultimus shall not be liable for the validity or
invalidity or authority or lack thereof of any instruction, notice or other
instrument that Ultimus reasonably believes to be genuine and to have been
signed or presented by a duly authorized representative of the Trust or any Fund
(other than an employee or other affiliated persons of Ultimus who may otherwise
be named as an authorized representative of the Trust for certain purposes).
Ultimus may apply to the Trust at any time for instructions and may
consult with counsel for the Trust or a Fund, counsel for the Trust's
independent Trustees, or its own counsel and with accountants and other experts
with respect to any matter arising in connection with Ultimus' duties hereunder,
and Ultimus shall not be liable or accountable for any action taken or omitted
by it in good faith in accordance with such instruction or with the reasonable
opinion of such counsel, accountants or other experts qualified to render such
opinion.
8. INDEMNIFICATION OF TRUST.
Ultimus agrees to indemnify and hold harmless the Trust, and each person
who has been, is or may hereafter be a Trustee or officer of the Trust, from and
against any and all actions, suits, claims, losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) (collectively, "Losses") arising
directly or indirectly out of Ultimus' failure to exercise the standard of care
set forth with respect to its services under this Agreement; provided, however
that Ultimus shall have no obligation to indemnify or reimburse the Trust or any
Fund under this Section 8 to the extent that the Trust is entitled to
reimbursement or indemnification for such Losses under any liability insurance
policy described in this Agreement or otherwise. Ultimus shall not be
responsible for any retention amounts required under such liability insurance
policy.
The Trust or a Fund shall not be indemnified against or held harmless from
any Losses arising directly or indirectly out of the Trust's or the Fund's own
willful misfeasance, bad faith or gross negligence. The provisions of this
paragraph 8 shall survive termination of this Agreement.
9. INDEMNIFICATION OF ULTIMUS.
The Trust, on behalf of each Fund, agrees to indemnify and hold harmless
Ultimus from and against any and all Losses arising directly or indirectly out
of any action or omission to act which Ultimus takes (i) at any request or on
the direction of or in reliance on the reasonable advice of the Trust or any
Fund, (ii) upon any instruction, notice or other instrument that Ultimus
reasonably believes to be genuine and to have been signed or presented by a duly
authorized representative of the Trust or any Fund (other than an employee or
other affiliated person of Ultimus who may otherwise be named as an authorized
representative of the Trust for certain purposes) or (iii) on its own
initiative, in good faith and in accordance with the standard of care set forth
herein, in connection with the performance of its duties or obligations
hereunder; provided, however that the Trust shall have no obligation to
indemnify or reimburse Ultimus under this Section 9 to the extent that Ultimus
is entitled to reimbursement or indemnification for such Losses under any
liability insurance policy described in this Agreement or otherwise. The Trust
shall not be responsible for any retention amounts required under such liability
insurance policy.
Ultimus shall not be indemnified against or held harmless from any Losses
arising directly or indirectly out of Ultimus' own willful misfeasance, bad
faith, gross negligence in the performance of its duties, or reckless disregard
of its obligations and duties hereunder. (As used in this Section 9, the term
"Ultimus" shall include directors, officers, employees and other agents of
Ultimus as well as Ultimus itself.) The provisions of this paragraph 9 shall
survive termination of this Agreement.
10. RECORD RETENTION AND CONFIDENTIALITY.
Ultimus shall keep and maintain on behalf of the Trust all books and
records which the Trust and Ultimus is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance
of books and records in connection with the services to be provided hereunder.
Ultimus further agrees that all such books and records shall be the property of
the Trust, and agrees to surrender the records of the Trust upon request, and to
make such books and records available for inspection by the Trust or by the SEC
at reasonable times and otherwise to keep confidential all books and records and
other information relative to the Trust and its shareholders; except when
requested to divulge such information by duly-constituted authorities or court
process. If Ultimus is requested or required to disclose any confidential
information supplied to it by the Trust, Ultimus shall, unless prohibited by
law, promptly notify the Trust of such request(s) so that the Trust may seek an
appropriate protective order.
Nonpublic personal shareholder information shall remain the sole property
of the Trust. Such information shall not be disclosed or used for any purpose
except in connection with the performance of the duties and responsibilities
described herein or as required or permitted by law. The provisions of this
Section shall survive the termination of this Agreement. The parties agree to
comply with any and all regulations promulgated by the SEC or other applicable
laws regarding the confidentiality of shareholder information.
11. FORCE MAJEURE.
Ultimus assumes no responsibility hereunder, and shall not be liable, for
any damage, loss of data, delay or any other loss whatsoever caused by events
beyond its reasonable control, including acts of civil or military authority,
national emergencies, fire, flood, catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply.
12. RIGHTS OF OWNERSHIP; RETURN OF RECORDS.
All records and other data except computer programs and procedures
developed to perform services required to be provided by Ultimus are the
exclusive property of the Trust and all such records and data will be furnished
to the Trust in appropriate form as soon as practicable after termination of
this Agreement for any reason. Ultimus may at its option at any time, and shall
promptly upon the Trust's demand, turn over to the Trust and cease to retain
Ultimus' files, records and documents created and maintained by Ultimus pursuant
to this Agreement which are no longer needed by Ultimus in the performance of
its services or for its legal protection. If not so turned over to the Trust,
such documents and records will be (1) copied and made available to the Trust by
Ultimus as soon as reasonably practical, and (2) retained by Ultimus for six
years from the year of creation. At the end of such six-year period, such
records and documents will be turned over to the Trust unless the Trust
authorizes in writing the destruction of such records and documents.
13. REPRESENTATIONS OF THE TRUST.
The Trust certifies to Ultimus that: (1) as of the close of business on
the Effective Date, each Fund that is in existence as of the Effective Date has
authorized unlimited shares, and (2) this Agreement has been duly authorized by
the Trust and, when executed and delivered by the Trust, will constitute a
legal, valid and binding obligation of the Trust, enforceable against the Trust
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
14. REPRESENTATIONS OF ULTIMUS.
Ultimus represents and warrants that: (1) it will maintain a disaster
recovery plan and procedures including provisions for emergency use of
electronic data processing equipment, which is reasonable in light of the
services to be provided, and it will, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions (Ultimus shall have no
liability with respect to the loss of data or service interruptions caused by
equipment failure, provided it maintains such plans and procedures); (2) this
Agreement has been duly authorized by Ultimus and, when executed and delivered
by Ultimus, will constitute a legal, valid and binding obligation of Ultimus,
enforceable against Ultimus in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties; (3) it is
duly registered with the appropriate regulatory agency as a transfer agent and
such registration will remain in full force and effect for the duration of this
Agreement; and (4) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
15. INSURANCE.
Upon request, Ultimus shall furnish the Trust with pertinent information
concerning the professional liability insurance coverage that it maintains. Such
information shall include the identity of the insurance carrier(s), coverage
levels and deductible amounts. Ultimus shall notify the Trust should any of its
insurance coverage be canceled or reduced. Such notification shall include the
date of change and the reasons therefor. Ultimus shall notify the Trust of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust from time to time as may be appropriate of the total outstanding claims
made by Ultimus under its insurance coverage.
16. INFORMATION TO BE FURNISHED BY THE TRUST.
The Trust has furnished to Ultimus the following:
(a) Copies of the Agreement and Declaration of Trust (the "Declaration
of Trust") and of any amendments thereto, certified by the proper
official of the state in which such document has been filed.
(b) Copies of the following documents:
(1) The Trust's Bylaws and any amendments thereto; and
(2) Certified copies of resolutions of the Trustees covering the
approval of this Agreement, authorization of a specified
officer of the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct
Ultimus thereunder.
(c) A list of all the officers of the Trust, together with specimen
signatures of those officers who are authorized to instruct Ultimus
in all matters.
(d) Copies of the Prospectus and Statement of Additional Information for
each Fund.
17. AMENDMENTS TO AGREEMENT.
This Agreement or any term thereof, may be changed or waived only by
written amendment signed by the party against whom enforcement of such change or
waiver is sought.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and Ultimus
may conclusively assume that any special procedure which has been approved by
the Trust does not conflict with or violate any requirements of its Declaration
of Trust or then current prospectuses, or any rule, regulation or requirement of
any regulatory body.
18. COMPLIANCE WITH LAW.
Except for the obligations of Ultimus otherwise set forth herein, the
Trust assumes full responsibility for the preparation, contents and distribution
of each prospectus of the Trust as to compliance with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the 1940 Act and any other laws, rules and regulations of governmental
authorities having jurisdiction. The Trust represents and warrants that no
shares of the Trust will be offered to the public until the Trust's registration
statement under the Securities Act and the 1940 Act has been declared or becomes
effective.
19. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such
notice, at the following address: if to the Trust at _________________________
___________________________________________________________; and if to Ultimus,
at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attn: Xxxxxx X.
Xxxxxx; or at such other address as such party may from time to time specify in
writing to the other party pursuant to this Section.
20. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party; provided however, that the terms and provisions of this Agreement
shall become automatically applicable to any investment company which is the
successor to the Trust as a result of reorganization, recapitalization or change
of domicile, unless the contract has otherwise been terminated in accordance
with Paragraph 6 of this Agreement, and that Ultimus may, in its sole discretion
and upon notice to the Trust, assign all its right, title and interest in this
Agreement to an affiliate, parent or subsidiary, or to the purchaser of
substantially all of its business. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
21. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the State
of Ohio and the applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
22. LIMITATION OF LIABILITY.
Notice is hereby given that this instrument is executed on behalf of the
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees, officers or shareholders individually but
are binding only upon the assets and property of the Trust (or if the matter
relates only to a particular Fund, that Fund), and Ultimus shall look only to
the assets of the Trust, or the particular Fund, for the satisfaction of such
obligations.
23. MULTIPLE ORIGINALS.
This Agreement may be executed in two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
________________
By: __________________________
Its: _________
ULTIMUS FUND SOLUTIONS, LLC
By: __________________________
Its: President
SCHEDULE A
TO THE TRANSFER AGENT AND SHAREHOLDER SERVICES AGREEMENT BETWEEN
_______________
AND
ULTIMUS FUND SOLUTIONS, LLC
FUND PORTFOLIOS
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SCHEDULE B
TO THE TRANSFER AGENT AND SHAREHOLDER SERVICES AGREEMENT BETWEEN
_______________
AND
ULTIMUS FUND SOLUTIONS, LLC
FEES AND EXPENSES
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FEES:
Ultimus shall be entitled to receive a fee from the Trust on the first business
day following the end of each month, or at such time(s) as Ultimus shall request
and the parties hereto shall agree, a fee computed with respect to each Fund as
follows:
Annual fee per shareholder account:
Direct Accounts $_____ per open account
NSCC Fund/Serv Accounts $_____ per open account
Minimum fee per year $______ per Fund/share class
For a Fund or Share Class with less than 25 shareholders, the monthly fee shall
be reduced to $_____ ($______ annual fee). For a Fund or Share Class with less
than 100 shareholders but 25 or more shareholders, the monthly fee shall be
reduced to $_____ ($______ annual fee).
OPTIONAL WEB ACCESS:
For Web Inquiry access, Ultimus charges each Fund an annual fee of $_____ and a
one-time set up fee of $_____ for this service.
OUT-OF-POCKET EXPENSES:
In addition to the above fees and the reimbursable expenses set forth in Section
4 of this Agreement , the Trust will reimburse Ultimus or pay directly certain
out-of-pocket expenses incurred on the Trust's behalf, including but not limited
to, Internet access fees, bank service charges, fund specific Fund/Serv and
Networking costs, and other industry standard transfer agent expenses.
