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Exhibit 99.h(2)
TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into this 26th day of May, 2000, by
and between The Prairie Fund, a registered management investment company (the
"Fund") and Mutual Shareholder Services, LLC, an Ohio corporation ("MSS").
RECITALS:
A. The Fund is a diversified, 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 Fund 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 Fund hereby employs and appoints MSS to act, and MSS agrees to
act, as transfer agent for the Fund's authorized and issued shares of
beneficial interest of the Fund (the "Shares") and as dividend disbursing and
redemption agent for the Fund.
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 Fund and MSS, MSS shall:
(i) Receive for acceptance, orders for the
purchase of Shares and promptly deliver payment and
appropriate documentation therefore to the Custodian of the
Fund authorized by the Board of Directors of the Fund (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 redemption directions and deliver the appropriate
documentation therefore to the Custodian;
(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;
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(v) Effect transfers of Shares by the registered
owners thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends
and distributions declared by the Fund;
(vii) Maintain records of account for and advise
the Fund and its Shareholders as to the foregoing; and
(viii) Record the issuance of shares of the Fund
and maintain pursuant to Securities and Exchange Commission
Rule 17Ad-10(e) a record of the total number of shares of the
Fund that are authorized, based upon data provided to it by
the Fund and issued and outstanding. MSS shall also provide
the Fund on a regular basis with the total number of shares
that are authorized and issued and outstanding and shall have
no obligation, as long as the Fund remains unregistered under
the Securities Act of 1933 (the "1933 Act"), 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 Fund. However, once the Fund
shares are registered under the 1933 Act, MSS shall have the
obligation to monitor the issuance of Fund shares, which in
each case must be approved by the Fund, and to take
cognizance of any laws relating to the issue or sale of such
shares.
(b) In addition, MSS shall perform all of the customary
services of a transfer agent, dividend disbursing and redemption
agent, including, 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 Shareholders, withholding taxes on 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 distributions by federal authorities for
all Shareholders, preparing and mailing confirmation forms and
statements of account to Shareholders 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 information and provide
a system and reports which will enable the Fund 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 Fund and MSS.
2. FEES AND EXPENSES
2.01 In consideration of the services to be performed by MSS
pursuant to this Agreement, the Fund agrees to pay MSS a fee of $250.00 per
month.
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2.02 In addition to the fee paid under Section 2.01 above, the Fund
agrees to reimburse MSS for reasonable 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 Fund will be reimbursed by the Fund.
2.03 The Fund 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, Fund reports and other mailings to
all shareholder accounts shall be advanced to MSS by the Fund at least seven
days prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF MSS
MSS represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Ohio.
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
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
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 Fund 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 the State of Delaware.
4.02 It is empowered under applicable laws and by its charter,
Declaration of Trust and By-Laws to enter into and perform this Agreement.
4.03 All trust proceedings required by said charter, Declaration of
Trust and By-Laws have been taken to authorize it to enter into and perform
this Agreement.
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4.04 It is an open-end and diversified management investment
company registered under the 0000 Xxx.
4.05 The Fund shares have not been registered under the 1933 Act
and are currently being offered pursuant to private placement exceptions that
satisfy the requirements of federal securities laws. Appropriate state
securities law filings as required for the purpose of private placements have
been or will be made and will continue to be made with respect to all Shares of
the Fund being offered for sale.
5. INDEMNIFICATION
5.01 MSS shall not be responsible for and the Fund 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 gross negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the
terms of this Agreement, or which arise out of the Fund's lack of good faith,
gross negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund hereunder.
(c) The reliance on or use by MSS or its agents or
subcontractors 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
Fund, and (ii) have been prepared and/or maintained by the Fund or any other
person or firm on behalf of the Fund.
(d) The reliance on or the carrying out by MSS or its
agents or subcontractors of any instructions or requests of the Fund.
(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 Fund 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 omission 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 Fund for
instructions 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 Fund for any action taken or omitted by it in
reliance upon
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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 Fund, 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 to MSS or its
agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Fund, and shall not be held to have
notice of any change of authority of any person, until receipt of written
notice thereof from the Fund. 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 Fund 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 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for
any act or failure to act hereunder.
5.06 Upon the assertion of a claim for which either party may be
required to indemnify the other, the party 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 in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in
any case in which the other party may be required to indemnify it except with
the other party's prior written consent.
6. COVENANTS OF THE FUND AND MSS
6.01 The Fund shall promptly furnish to MSS a certified copy of the
resolution of the Board of Directors of the Fund authorizing the appointment of
MSS and the execution and delivery of this Agreement.
6.02 MSS hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, 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 Fund and will be preserved, maintained and made available in accordance
with such Section and Rules and will be surrendered promptly to the Fund on and
in accordance with its request.
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6.04 MSS and the Fund 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 Fund, MSS will endeavor to notify the Fund and to
secure instructions from an authorized officer of the Fund as to such
inspection. 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 Fund of any unusual request to inspect or copy the
shareholder records of the Fund or the receipt of any other unusual request to
inspect, copy or produce the records of the Fund.
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 Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material
will be borne by the Fund. Additionally, MSS reserves the right to charge for
any other reasonable expenses associated with such termination.
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 Directors of the Fund.
8.03 The provisions of this Agreement shall be construed and
interpreted 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):
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To the Fund: To MSS:
The Prairie Fund Mutual Shareholder Services, LLC
0000 Xxxxxxx Xxxx, Xxxxx 000 0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
The Prairie Fund Mutual Shareholder Services, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxx
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Its: President Its: President
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