EXHIBIT (h)(2)
TRANSFER AGENCY SERVICE AGREEMENT
between
BRYCE CAPITAL FUNDS
and
[GEMINI FUND SERVICES, LLC LOGO]
INDEX
SECTION 1. APPOINTMENT AND DELIVERY OF DOCUMENTS............................................ 3
SECTION 2. DUTIES OF GFS.................................................................... 4
SECTION 3. FEES AND EXPENSES................................................................ 9
SECTION 4. ISSUANCE AND TRANSFER OF SHARES.................................................. 9
SECTION 5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS............................ 10
SECTION 6. STANDARD OF CARE AND INDEMNIFICATION............................................. 11
SECTION 7. REPRESENTATIONS AND WARRANTIES................................................... 13
SECTION 8. CONFIDENTIALITY.................................................................. 13
SECTION 9. PROPRIETARY INFORMATION.......................................................... 14
SECTION 10. EFFECTIVE DATE, TERM, AND TERMINATION........................................... 15
SECTION 11. ADDITIONAL FUNDS AND CLASSES.................................................... 16
SECTION 12. ASSIGNMENT ..................................................................... 16
SECTION 13. LIAISON WITH ACCOUNTANTS........................................................ 16
SECTION 14. MISCELLANEOUS. ................................................................. 17
SCHEDULE A ................................................................................. 19
FUNDS TO BE SERVICED ....................................................................... 19
EQUITY AND BOND FUNDS ...................................................................... 20
SCHEDULE C - AML CUSTOMER IDENTIFICATION PROGRAM DELEGATION................................. 24
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BRYCE CAPITAL FUNDS
TRANSFER AGENCY SERVICE AGREEMENT
AGREEMENT made this 28th day of June 2004, by and between Bryce
Capital Funds, a Delaware business trust, having its principal office and place
of business at 0 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the "Trust"), and Gemini
Fund Services, LLC., a Nebraska limited liability company having its principal
office at 000 Xxxxx Xxxxxxx, Xxxxxxxxx, XX 00000 ("GFS").
WHEREAS, the Trust is an open-end management investment company
registered with the United States Securities and Exchange Commission ("SEC")
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares ("Shares") in
separate series, with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust offers shares in the series as listed in Schedule
A hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 11, being herein referred to as a "Fund," and collectively as the
"Funds"); and
WHEREAS, the Trust desires that GFS perform certain transfer agency
and dividend disbursing services for each Fund and GFS is willing to provide
those services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, the Trust and GFS hereby agree as follows:
SECTION 1. APPOINTMENT AND DELIVERY OF DOCUMENTS.
(a) The Trust, on behalf of each Fund listed in Schedule A, hereby
appoints GFS as (i) transfer agent for the authorized and issued
Shares of the Funds, (ii) dividend disbursing agent, and (iii) agent
in connection with any accumulation, open-account or similar plans
provided to the registered owners of shares of any of the Funds
("Shareholders") as set out in the currently effective prospectuses
and statements of additional information of the applicable Fund,
including, without limitation, any periodic investment plan or
periodic withdrawal program. GFS accepts such appointment and agrees
to furnish the services herein set forth in return for the
compensation as provided in Section 3 of this Agreement.
(b) In connection therewith, the Trust has delivered to GFS copies of:
(i) the Agreement and Trust's Declaration of Trust and
By-laws (collectively, as amended from time to time,
"Organizational Documents");
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(ii) the Trust's Registration Statement on Form N-1A and all
amendments thereto filed with the SEC pursuant to the
Securities Act of 1933, as amended (the "Securities
Act"), and the 1940 Act (the "Registration Statement");
(iii) the Trust's notification of registration under the 1940
Act on Form N-8A as filed with the SEC;
(iv) the Trust's current Prospectus and Statement of
Additional Information of each Fund (collectively, as
currently in effect and as amended or supplemented, the
"Prospectus);
(v) procedures adopted by the Trust in accordance with Rule
17a-7 with respect to affiliated transactions.
(c) The Trust shall promptly furnish GFS with all amendments of or
supplements to the foregoing and shall deliver to GFS a certified
copy of the resolution of the Board of Directors of the Trust (the
"Board") appointing GFS and authorizing the execution and delivery
of this Agreement.
SECTION 2. DUTIES OF GFS.
(a) Transfer Agency Services. In accordance with procedures established from
time to time by agreement between the Trust on behalf of each of the
Funds, as applicable, and GFS, GFS will perform the following services:
(i) provide the services of a transfer agent, dividend
disbursing agent and, as relevant, agent in connection
with accumulation, open-account or similar plans
(including without limitation any periodic investment
plan or periodic withdrawal program) that are customary
for open-end management investment companies including:
(A) maintaining all Shareholder accounts;
(B) preparing Shareholder meeting lists;
(C) preparing and certifying direct Shareholder lists
in conjunction with proxy solicitations;
(D) preparing periodic mailing of year-end tax and
statement information;
(E) mailing Shareholder reports and prospectuses to
current Shareholders;
(F) withholding taxes on U.S. resident and
non-resident alien accounts;
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(G) preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required by
federal authorities with respect to distributions
for Shareholders;
(H) 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;
and
(I) providing account information in response to
inquiries from Shareholders.
(ii) receiving for acceptance, orders for the purchase of
Shares, and promptly delivering payment and appropriate
documentation therefore to the Custodian of the Fund
authorized by the Board of the Fund (the "Custodian");
or, in the case of a Fund operating in a master-feeder
or fund of funds structure, to the transfer agent or
interest-holder record keeper for the master portfolios
in which the Fund invests;
(iii) pursuant to purchase orders, issuing the appropriate
number of Shares and holding such Shares in the
appropriate Shareholder account;
(iv) receiving for acceptance redemption requests and
redemption directions and delivering the appropriate
documentation therefore to the Custodian or, in the case
of Fund operating in a master-feeder or fund of funds
structure, to the transfer agent or interest-holder
record keeper for the master portfolios in which the
Fund invests;
(v) as and when it receives monies paid to it by the
Custodian with respect to any redemption, paying over or
cause to be paid over the redemption proceeds as
required by the Prospectus pursuant to which the
redeemed Shares were offered and as instructed by the
redeeming Shareholders;
(vi) effecting transfers of Shares upon receipt of
appropriate instructions from Shareholders;
(vii) preparing and transmitting to Shareholders (or crediting
the appropriate Shareholder accounts) payments for all
distributions and dividends declared by the Trust with
respect to Shares;
(viii) receiving from Shareholders or debit Shareholder
accounts for sales commissions, including contingent
deferred, deferred and other sales charges, and service
fees (i.e., wire redemption charges) and prepare and
transmit payments to underwriters, selected dealers and
others for commissions and service fees received;
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(ix) recording the issuance of shares of the Fund and
maintaining pursuant to SEC Rule 17Ad-10(e) a record of
the total number of shares of the Fund which are
authorized, based upon data provided to it by the Fund,
issued and outstanding; and
(x) providing the Trust on a regular basis with the total
number of shares which are authorized and 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 Fund.
(b) Other Services. In addition to, and neither in lieu nor in
contravention of the services set forth in the above paragraph, GFS
shall provide the following additional services on behalf of the
Trust and such other services agreed to in writing by the Trust and
GFS:
(i) monitoring and making appropriate filings with respect
to the escheatment laws of the various states and
territories of the United States.
(c) Lost Shareholders. GFS shall perform such services as are required
in order to comply with Rules 17a-24 and 17Ad-17 (the "Lost
Shareholder Rules") of the Securities Exchange Act of 1934 ("1934
Act"), including, but not limited to, those set forth below. GFS
may, in its sole discretion, use the services of a third party to
perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to
comply with the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the
Lost Shareholder Rules.
(d) Safekeeping. GFS shall establish and maintain facilities and
procedures reasonably acceptable to the Trust for the safekeeping,
control, preparation and use of share certificates, check forms, and
facsimile signature imprinting devices. GFS shall also establish and
maintain facilities and procedures reasonably acceptable to the
Trust for safekeeping of all records maintained by GFS pursuant to
this Agreement.
(e) Lost, Stolen or Mutilated Certificates. GFS shall place a stop
notice against any certificate reported to be lost or stolen and
comply with all applicable federal
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regulatory requirements for reporting such loss or alleged
misappropriation. GFS shall issue share certificates and replacement
share certificates for those share certificates alleged to have been
lost, stolen, or destroyed upon receipt by GFS of indemnification
satisfactory to GFS and protecting GFS and the Trust and, at the
option of GFS, issue replacement certificates in place of mutilated
share certificates upon presentation thereof without requiring
indemnification.
(f) Withdrawal of Shares and Cancellation of Certificates. Upon receipt
of written instructions from the Trust, GFS shall cancel outstanding
certificates surrendered by the Trust to reduce the total amount of
outstanding shares by the number of shares surrendered by the Trust.
(g) Responsibility for Compliance with Law.
(i) In General. Except with respect to GFS' duties as set
forth in this Section 2 and except as otherwise
specifically provided herein, the Trust assumes all
responsibility for ensuring that the Trust complies with
all applicable requirements of the Securities Act, the
1940 Act and any laws, rules and regulations of
governmental authorities with jurisdiction over the
Trust. All references to any law in this Agreement shall
be deemed to include reference to the applicable rules
and regulations promulgated under authority of the law
and all official interpretations of such law or rules or
regulations.
(ii) Issuance of Shares. The responsibility of GFS for the
Trust's state registration status is solely limited to
the reporting of transactions to the Trust, and GFS
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 or its distributor or other
agent.
(h) New Procedures. New procedures as to who shall provide certain of
these services in Section 2 may be established in writing from time
to time by agreement between the Trust and GFS. GFS may at times
perform only a portion of these services and the Trust or its agent
may perform these services on the Trust's behalf.
(i) Anti-Money Laundering ("AML") Delegation. If the Trust elects to
delegate to GFS certain AML duties under this Agreement, the parties
will agree to such duties and terms which may be changed from time
to time subject to mutual written agreement between the parties. In
consideration of the performance of the duties by GFS pursuant to
Section 2(k), the Trust agrees to pay GFS for the reasonable
administrative expense that may be associated with such additional
duties in the amount as the parties may from time to time agree in
writing in accordance with Section 3 (Fees and Expenses) below.
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(j) National Securities Clearing Corporation (the "NSCC"). GFS will: (i)
process accounts through Networking and the purchase, redemption,
transfer and exchange of shares in such accounts through Fund/SERV
(Networking and Fund/SERV being programs operated by the NSCC on
behalf of NSCC's participants, including the Trust), in accordance
with, instructions transmitted to and received by GFS by
transmission from NSCC on behalf of broker-dealers and banks which
have been established by, or in accordance with the instructions of
authorized persons, as hereinafter defined on the dealer file
maintained by GFS; (ii) issue instructions to the Trust's bank for
the settlement of transactions between the Trust and NSCC (acting on
behalf of its broker-dealer and bank participants); (iii) provide
account and transaction information from the affected Trust's
records on an appropriate computer system in accordance with NSCC's
Networking and Fund/SERV rules for those broker-dealers; and (iv)
maintain Shareholder accounts through Networking.
(k) Recordkeeping. GFS shall keep records relating to the services to be
performed under this Agreement, in the form and manner as it may
deem advisable and as required by applicable law. To the extent
required by Section 31 of the 1940 Act, and the rules thereunder,
GFS agrees that all such records prepared or maintained by GFS
relating to the services to be performed by GFS under this Agreement
are the property of the Trust and will be preserved, maintained and
made available in accordance with Section 31 of the 1940 Act and the
rules thereunder, and will be surrendered promptly to the Trust on
and in accordance with the Trust's request. The Trust and the
Trust's authorized representatives shall have access to GFS' records
relating to the services to be performed under this Agreement at all
times during GFS' normal business hours. Upon the reasonable request
of the Trust, copies of any such records shall be provided promptly
by GFS to the Trust or its authorized representatives. GFS shall
maintain the following shareholder account information:
(i) name, address and United States Tax Identification or Social
Security number;
(ii) number of Shares held and number of Shares for which
certificates, if any, have been issued, including certificate
numbers and denominations;
(iii) historical information regarding the account of each
Shareholder, including dividends and distributions paid and
the date and price for all transactions on a Shareholder's
account;
(iv) any stop or restraining order placed against a Shareholder's
account;
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(v) any correspondence relating to the current maintenance of a
Shareholder's account;
(vi) information with respect to withholdings; and
(vii) any information required in order for GFS to perform any
calculations by this Agreement.
SECTION 3. FEES AND EXPENSES.
(a) Fees. For the services provided by GFS pursuant to this Agreement,
the Trust, on behalf of each Fund, agrees to pay GFS the fees, set
forth in Schedule B attached hereto. Fees will begin to accrue for
each Fund on the latter of the date of this Agreement or the date
GFS begins providing services to the Funds. For the purpose of
determining fees calculated as a function of the Trust's assets, the
value of the Trust's assets and net assets shall be computed as
required by its currently effective Prospectus, generally accepted
accounting principles, and resolutions of the Board. GFS will
render, after the close of each month in which services have been
furnished, a statement reflecting all of the charges for such month;
and GFS' fee shall not be subject to monthly pro ration.
(b) Expenses. GFS will bear its own expenses, in connection with the
performance of the services under this Agreement, except as provided
herein or as agreed to by the parties. In addition to the fees paid
under subsection (a), the Trust agrees to reimburse GFS for
out-of-pocket expenses or advances incurred by GFS for the items set
out in Schedule B and any other expenses incurred by GFS at the
request or with the consent of the Trust.
(c) Fee Changes. The fees, out-of pocket expenses and advances
identified in subsections (a) and (b) above may only be changed
subject to prior written approval by the Trust. For reports,
analyses and services requested in writing by the Trust and provided
by GFS, not in the ordinary course, GFS shall charge $150/hour for
senior staff time, $75/hour for junior staff time and $200/hour for
computer personnel time.
(d) Due Date. All fees under subsection (a) above are due and payable
within ten (10) days of receipt of invoice. All expenses under
subsection (b) above are due and payable within fifteen (15) days of
receipt of invoice.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES.
(a) Issuance of Shares. GFS shall make original issues of Shares of each
Fund in accordance with the Prospectus only upon receipt of:
(i) instructions requesting the issuance,
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(ii) a certified copy of a resolution of the Board
authorizing the issuance,
(iii) necessary funds for the payment of any original issue
tax applicable to such Shares, and
(iv) an opinion of the Trust's counsel as to the legality and
validity of the issuance, which opinion may provide that
it is contingent upon the filing by the Trust of an
appropriate notice with the SEC, as required by Section
24 of the 1940 Act or the rules thereunder. If such
opinion is contingent upon a filing under Section 24 of
the 1940 Act, the Trust shall indemnify GFS for any
liability arising from the failure of the Trust to
comply with that section or the rules thereunder.
(b) Transfer of Shares. Transfers of Shares of each Fund shall be
registered on the Shareholder records maintained by GFS. In
registering transfers of Shares, GFS may rely upon the Uniform
Commercial Code as in effect in the State of Nebraska or any other
statutes that, in the opinion of GFS' counsel, protect GFS and the
Trust from liability arising from:
(i) not requiring complete documentation;
(ii) registering a transfer without an adverse claim inquiry;
(iii) delaying registration for purposes of such inquiry; or
(iv) refusing registration whenever an adverse claim requires
such refusal. As Transfer Agent, GFS will be responsible
for delivery to the transferor and transferee of such
documentation as is required by the Uniform Commercial
Code.
SECTION 5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS.
(a) Purchase Orders. Shares shall be issued in accordance with the terms
of the Prospectus after GFS or its agent receives either:
(i) (A) an instruction directing investment in a Fund, (B) a
check (other than a third party check) or a wire or
other electronic payment in the amount designated in the
instruction and (C), in the case of an initial purchase,
a completed account application; or
(ii) the information required for purchases pursuant to a
selected dealer agreement, processing organization
agreement, or a similar contract with a financial
intermediary.
(b) Distribution Eligibility. Shares issued in a Fund after receipt of a
completed purchase order shall be eligible to receive distributions
of the Fund at the time specified in the prospectus pursuant to
which the Shares are offered.
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(c) Determination of Federal Funds. Shareholder payments shall be
considered Federal Funds no later than on the day indicated below
unless other times are noted in the Prospectus:
(i) for a wire received, at the time of the receipt of the
wire;
(ii) for a check drawn on a member bank of the Federal
Reserve System, on the second Fund Business Day
following receipt of the check; and
(iii) for a check drawn on an institution that is not a member
of the Federal Reserve System, at such time as GFS is
credited with Federal Funds with respect to that check.
SECTION 6. STANDARD OF CARE AND INDEMNIFICATION.
(a) Indemnification of GFS. The Trust shall on behalf of each applicable
Fund indemnify and hold GFS harmless from and against any and all
losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising out of or attributable to 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, gross negligence
or willful misconduct with respect to the Trust's performance under
or in connection with this Agreement. GFS shall not be responsible
for and shall be entitled to rely upon and may act upon information,
records and reports generated by the Funds, advice of the Funds, or
of counsel for the Funds and upon statements of the Funds'
independent accountants, and shall be without liability for any
action reasonably taken or omitted pursuant to such records and
reports or advice, provided that such action is not, to the
knowledge of GFS, in violation of applicable federal or state laws
or regulations, and provided further that such action is taken
without gross negligence, bad faith, willful misconduct or reckless
disregard of its duties, and the Trust shall hold GFS harmless in
regard to any liability incurred by reason of the inaccuracy of such
information or for any action reasonably taken or omitted in good
faith reliance on such information.
(b) Indemnification of the Trust. GFS shall indemnify and hold the Trust
and each applicable Fund harmless from and against any and all
losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising out of or attributable to GFS'
refusal or failure to comply with the terms of this Agreement, or
which arise out of GFS' lack of good faith, gross negligence or
willful misconduct with respect to GFS' performance under or in
connection with this Agreement.
(c) Reliance. At any time, GFS may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust with
respect to any matter arising in connection with the services to be
performed by GFS under this Agreement, and GFS and its agents or
subcontractors shall not be liable and shall be
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indemnified by the Trust on behalf of the applicable Fund for any
action taken or omitted by it in reasonable reliance upon such
instructions or upon the advice of such counsel. Additionally, and
except to the extent that GFS may be liable pursuant to 6(a) above,
GFS shall not be liable for any action taken or failure to act in
good faith in reliance upon:
(i) any paper or document furnished (pursuant to procedures
mutually agreed to by GFS and Bryce Capital Management,
manager of the Trust (the "Adviser")), by or on behalf
of the Trust, reasonably believed by GFS to be genuine
and to have been signed by the proper person or persons;
(ii) any instruction, information, data, records or documents
provided to GFS or its agents or subcontractors
furnished (pursuant to procedures mutually agreed to by
GFS and the Adviser) by machine readable input, telex,
CRT data entry or other similar means authorized by the
Trust; and
(iii) any authorization, instruction, approval, item or set of
data, or information of any kind transmitted to GFS in
person or by telephone, vocal telegram or other
electronic means, furnished and reasonably believed by
GFS to be genuine and to have been given by the proper
person or persons. GFS shall not be held to have notice
of any change of authority of any person, until receipt
of written notice thereof from the Trust. GFS, its
agents and subcontractors shall also be protected and
indemnified in recognizing share 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 former registrar or of a co-transfer agent or
co-registrar of the Trust.
(d) Reliance on Electronic Instructions. If the Trust has the ability to
originate electronic instructions to GFS in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event GFS shall be
entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as such
instruction is undertaken in conformity with security procedures
established and agreed upon by GFS and the Adviser.
(e) Errors of Others. GFS shall not be liable for the errors of other
service providers to the Trust, including the errors of pricing
services (other than to pursue all reasonable claims against the
pricing service based on the pricing services' standard contracts
entered into by GFS) and errors in information provided by an
investment adviser (including prices and pricing formulas and the
untimely transmission of trade information) or custodian to the
Trust; except or unless any GFS action or inaction by GFS is a
direct or proximate cause of the error.
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SECTION 7. REPRESENTATIONS AND WARRANTIES.
(a) Representations of GFS. GFS represents and warrants to the Trust
that:
(i) it is a limited liability company duly organized and
existing and in good standing under the laws of the
State of Nebraska;
(ii) it is empowered under applicable laws and by its
organizational documents to enter into this Agreement
and perform its duties under this Agreement;
(iii) it has access to the necessary facilities, equipment,
and personnel to perform its duties and obligations
under this Agreement; and
(iv) it is registered as a transfer agent under Section 17A
of the Securities Exchange Act of 1934 and shall
continue to be registered throughout the remainder of
this Agreement.
(b) Representations of the Trust. The Trust represents and warrants to
GFS that:
(i) it is a Trust duly organized and existing and in good
standing under the laws of the State of Delaware;
(ii) it is empowered under applicable laws and by its
Organizational Documents to enter into and perform this
Agreement;
(iii) all proceedings required by said Organizational
Documents have been taken to authorize it to enter into
and perform this Agreement;
(iv) it is an open-end management investment company
registered under the 1940 Act; and
a registration statement under the Securities Act of 1933 is currently 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 Fund being offered for sale.
SECTION 8. CONFIDENTIALITY.
GFS 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 that GFS may:
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(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or
other information regarding investment companies;
(c) release such other information as approved in writing by the Trust,
which approval shall not be unreasonably withheld and may not be
withheld where GFS may be exposed to civil or criminal liability or
proceedings for failure to release the information, when requested
to divulge such information by duly constituted authorities or when
so requested by the Trust and the Adviser; and
(d) provide or release such information as otherwise permitted or
required by law.
In accordance with Section 248.1 of Regulation S-P (17 CFR 248.1 - 248.30)
("Reg S-P"), GFS will not directly, or indirectly through an affiliate,
disclose any non-public personal information as defined in Reg S-P,
received from the Fund to any person that is not affiliated with the Fund
or with GFS and provided that any such information disclosed to an
affiliate of GFS shall be under the same limitations on non-disclosure.
SECTION 9. PROPRIETARY INFORMATION.
(a) Proprietary Information of GFS. The Trust acknowledges that the
databases, computer programs, screen formats, report formats,
interactive design techniques, and documentation manuals maintained
by GFS on databases under the control and ownership of GFS or a
third party constitute copyrighted, trade secret, or other
proprietary information (collectively, "GFS Proprietary
Information") of substantial value to GFS or the third party. The
Trust agrees to treat all Proprietary Information as proprietary to
GFS and further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be provided
under this Agreement.
(b) Proprietary Information of the Trust. GFS acknowledges that the
Shareholder list and all information related to Shareholders
furnished to GFS by the Trust or by a Shareholder in connection with
this Agreement (collectively, "Customer Data") all information
regarding the Trust portfolios, arrangements with brokerage firms,
compensation paid to or by the Trust, trading strategies and all
such related information (collectively, Trust proprietary
information") constitute proprietary information of substantial
value to the Trust. In no event shall GFS Proprietary Information be
deemed Trust Proprietary Information or Customer Data. GFS agrees to
treat all Customer Data and Trust Proprietary Information as
proprietary to the Trust and further agrees that it shall not
divulge any Customer Data or Trust Proprietary Information to any
person or organization except as may be provided
14
under this Agreement or as maybe directed by the Trust or as maybe
duly requested by regulatory authorities.
(c) Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 9. The obligations of
this Section shall survive any earlier termination of this
Agreement.
SECTION 10. EFFECTIVE DATE, TERM, AND TERMINATION.
(a) Effective Date. This Agreement shall become effective on the date
first above written.
(b) Term. This Agreement shall remain if effect for a period of three
(3) years from the date of its effectiveness and shall continue in
effect for successive twelve-month periods provided that such
continuance is specifically approved at least annually by a majority
of the trustees of the Trust.
(c) Termination. This Agreement can be terminated upon ninety (90) days
prior written notice by either party. Compensation due GFS and
unpaid by the Trust upon such termination shall be due on the date
of termination or after the date that the provision of services
ceases, whichever is later. In the event of termination, GFS agrees
that it will cooperate in the smooth transition of services and to
minimize disruption to the Trusts and its shareholders, including
liaison with the Trusts accountants.
(d) Reimbursement of GFS' Expenses. If this Agreement is terminated with
respect to a Fund or Funds, GFS shall be entitled to collect from
the Fund or Funds, in addition to the compensation described under
Section 3 hereof, the amount of all of GFS's reasonable labor
charges and cash disbursements for services in connection with GFS's
activities in effecting such termination, including without
limitation, the labor costs and expenses associated with the
de-conversion of the Trusts records of each Fund from its computer
systems, and the delivery to the Trust and/or its designees of the
Trust's property, records, instruments and documents, or any copies
thereof. The agreed upon amount for such de-conversion is set forth
on Schedule B. Subsequent to such termination, for a reasonable fee,
GFS will provide the Trust with reasonable access to all Trust
documents or records, if any, remaining in its possession. In the
event that GFS gives notice of termination, all reasonable expenses
associated with movement (or duplication) of records and materials
and conversion thereof to a successor transfer agent(s) (and any
other service provider(s)), and all reasonable trailing expenses
incurred by GFS, will be borne by GFS. In the event of termination,
GFS agrees that it will cooperate in the smooth transition of
services and to minimize disruption to the Trust and its
Shareholders.
(e) Survival of Certain Obligations. The obligations of Sections 3, 6,
8, 9, 10 and 13 shall survive any termination of this Agreement.
15
SECTION 11. ADDITIONAL FUNDS AND CLASSES.
If the Trust establishes one or more series of Shares or one or more
classes of Shares after the effectiveness of this Agreement, such series of
Shares or classes of Shares, as the case may be, shall become Funds and classes
under this Agreement; provided, however, that either GFS or the Trust may elect
not to make any such series or classes subject to this Agreement.
SECTION 12. ASSIGNMENT
This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Trust without the prior written consent
of GFS. GFS may subcontract any or all of its responsibilities pursuant to this
Agreement to one or more corporations, trusts, firms, individuals or
associations, which may or may not be affiliated persons of GFS and which agree
to comply with the terms of this Agreement; provided, however, that any such
subcontracting shall not relieve GFS of its responsibilities hereunder. GFS may
pay those persons for their services, but no such payment shall increase GFS'
compensation from the Trust.
SECTION 13. LIAISON WITH ACCOUNTANTS
GFS shall act as liaison with the Trust's independent public
accountants and shall provide account analyses, fiscal year summaries, and other
audit-related schedules with respect to each Fund. GFS shall take all reasonable
action in the performance of its duties under this Agreement to assure that the
necessary information is made available to such accountants for the expression
of their opinion, as required by the Fund.
16
SECTION 14. MISCELLANEOUS.
(a) Amendments. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly
authorized and executed by both parties hereto.
(b) Governing Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the
State of New York.
(c) Entire Agreement. 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.
(d) Counterparts. The parties may execute this Agreement on any number
of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) Severability. If any part, term or provision of this Agreement is
held to be illegal, in conflict with any law or otherwise invalid,
the remaining portion or portions shall be considered severable and
not be affected, and the rights and obligations of the parties shall
be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
(f) Force Majeure. 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 party
resulting from such failure to perform or otherwise from such
causes.
(g) Arbitration. Any controversy or claim arising out of, or related to,
this Agreement, its termination or the breach thereof, shall be
settled by binding arbitration by three arbitrators (or by fewer
arbitrator(s), if the parties subsequently agree to fewer) in the
City of New York, in accordance with the rules then obtaining of the
American Arbitration Association, and the arbitrators' decision
shall be binding and final, and judgment upon the award rendered may
be entered in any court having jurisdiction thereof.
(h) Headings. Section and paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or
interpret this Agreement.
(i) Notices. 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):
17
TO THE TRUST: TO GFS:
Xxxxxx Xxxxxxx Xxxxx X. Xxxxxx
Xxxxx Capital Funds c/o President
Bryce Capital Management Gemini Fund Services, LLC
0 Xxxxxxxx Xxxx 000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
With a copy to:
Xxxxxx Xxxxxx, Esq.
Blank Rome LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX. 00000
(000) 000-0000
xxxxxxx@xxxxxxxxx.xxx
(j) Distinction of Funds. Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each
Fund of the Trust are separate and distinct from the assets and
liabilities of each other Fund and that no Fund shall be liable or
shall be charged for any debt, obligation or liability of any other
Fund, whether arising under this Agreement or otherwise.
(k) Representation of Signatories. Each of the undersigned expressly
warrants and represents that they have full power and authority to
sign this Agreement on behalf of the party indicated and that their
signature will bind the party indicated to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf by and through their
duly authorized persons, as of the day and year first above written.
BRYCE CAPITAL FUNDS GEMINI FUND SERVICES, LLC
By: _______________________ By: ______________________________
_________, President Xxxxx X. Xxxxxx
President
Date:__________________ Date:______________________
18
TRANSFER AGENCY SERVICE AGREEMENT
Schedule A
FUNDS TO BE SERVICED
BRYCE CAPITAL GROWTH FUND
BRYCE CAPITAL VALUE FUND
19
TRANSFER AGENCY SERVICE AGREEMENT
Schedule B
FEES AND EXPENSES
Page 1 of 3
For the services rendered by GFS, in its capacity as transfer agent, the Trust
shall pay GFS the following transfer agent fees, out-of-pocket expenses,
activity charges, and special reports charges, which shall be billed to the
Trust monthly:
TRANSFER AGENT FEES
1. SERVICE FEE: (The following fees will remain in place for a period of 3
years.)
Equity and Bond Funds
The greater of the annual minimum or the per account charges.
$14.00 annual fee per open direct accounts, and $2.00 annual fee per
closed account with a minimum of $15,000 annually per fund/class PLUS
out-of-pocket expenses
with a 10% overall discount in the first 6 months.
Monthly Calculation: The greater of the Monthly Minimum Fee or the number
of shareholder accounts multiplied by $14.00 for open accounts or $2.00
for closed accounts ($1,250 per month per fund /class for the monthly
minimum).
The Trust shall reimburse GFS for all out-of-pocket expenses, including
but not limited to the following:
1. Telephone and Toll Free Lines
2. Printing Fund Documents
3. Bank Fees
4. NSCC Charges
5. Postage
6. Pre and Post Sale Fulfillment
7. Proxy Services
8. Travel Requested by the Trust
9. Tax Reporting
10. Record Storage
11. Fund Stationery and Supplies
12. All other out-of-pocket expenses incurred on behalf of the
Trust
20
TRANSFER AGENCY SERVICE AGREEMENT
Schedule B
FEES AND EXPENSES
Page 2 of 3
3. DATA DE-CONVERSION FEE:
A one-time Data De-Conversion fee of $10,000 shall be charged upon a
cancellation or termination of this Agreement by the Trust for any reason
other than liquidation of the Funds. No fee shall be payable upon a
cancellation or termination by GFS.
ACTIVITY CHARGES
1. GENERAL ACTIVITY CHARGES:
1) 24 Hour Automated Voice Response:
a) Initial set-up (one-time) charge: $750.00 per fund
b) Monthly charge $50.00 per fund
2) Customer Service Calls: $2.50 per call
3) Manual Transactions: $1.00 per transaction
4) New Account Opening: (manual) $2.50 per account
5) New Account Opening: (electronic) $0.40 per account
6) Incoming XXX Transfer from prior custodian: $25.00 (waived first 6 months)
7) XXX Transfer to successor custodian: $25.00
Bank Charges (Pass Through Charges):
Annual Charge for maintaining a DDA Account on a bank system equals $200.00 per
DDA Account.
Transfer Agency wire from mutual funds DDA Accounts to Custodian Bank equals
$5.25 per wire. Bank charges are subject to change since they are a pass through
charge from a bank, which is a separate institution from Gemini Fund Services.
21
TRANSFER AGENCY SERVICE AGREEMENT
Schedule B
FEES AND EXPENSES
Page 3 of 3
2. INTERNET ACCESS:
Each Shareholder/Adviser/Broker hit billed at $0.15 per hit. Initial fund
group setup charges will be based on the number of hours multiplied by the
hourly charges indicated below under Special Reports Charges.
Additional Internet Functionality includes:
- Electronic delivery of financial statements such as semi-annual and
annual reports and shareholder prospectuses $.15 per occurrence per
item.
- Electronic delivery of shareholder confirms and statements $.15 per
occurrence per item.
- Electronic subsequent purchases and redemptions via the internet
$.15 per occurrence.
- Access to Gemini Fund Services E-Form, which is an on-line
application for new shareholders. The E-Form can be filled out
on-line, but will require the new shareholder to print, sign and
mail into Gemini Fund Services.
- E-Signature functionality will be provided.
3. ISSUANCE OF SHARE CERTIFICATES:
For each share certificate issued by GFS, a $15.00 charge will be
assessed to the Fund for which the certificate was issued.
4. XXX PLAN FEES:
The following fees will be charged directly to the shareholder account:
Annual maintenance fee ..................................$15.00 / account*
*Includes an $8.00 Bank Custody Fee.
SPECIAL REPORTS CHARGES
All special reports and/or analyses requested by the Trust, shall be
subject to an additional charge, agreed upon in advance, based upon the
following rates:
GFS Senior Staff .............$150.00 / hour
GFS Junior Staff .............$ 75.00 / hour
MIS Staff ....................$200.00 / hour
22
23
TRANSFER AGENCY SERVICE AGREEMENT
Schedule C - AML Customer Identification Program Delegation
Page 1 of 3
In recognition of the importance of complying with the USA Patriot Act of 2001
and the regulations promulgated thereunder (collectively, the "Patriot Act"),
which imposes new anti-money laundering requirements on financial institutions
including mutual funds, the Trust has developed and implemented a written
anti-money laundering program, ("Program"), designed to satisfy the requirements
of the Patriot Act.
The Trust, in recognition of the fact that the Patriot Act enables a mutual fund
to delegate to its transfer agent the implementation and operation of aspects of
its anti-money laundering program, pursuant to Section 2(k), delegates to GFS
the implementation and operation of certain aspects of the Trust's program.
1. Duties. The Trust delegates to GFS the implementation and operation of
their Customer Identification Program, ("CIP"), designed to identify and verify
persons seeking to open an account with the Trust, to the extent reasonable and
practicable. GFS will maintain records of the information used to verify the
person's identity and determine whether the person appears on any lists of known
or suspected terrorist or terrorist organizations provided to the Trust by any
government agency. Duties include:
a. Prior to opening a customer account or granting customers authority
to effect transactions with respect to an account, GFS shall obtain and
record, on behalf of the Trust, the following identifying information
about each customer, at a minimum including:
i. Name;
ii. Date of birth, for a natural person;
iii. Addresses, including
1. residence or business street address or an Army Post
Office or Fleet Post Office box number or residential or
business street address of next of kin or other contact
individual; or
2. principal place of business local office or other
physical location, for a person other than a natural
person; and
iv. Identification numbers:
1. A taxpayer identification number from each customer that
is a US person; or
2. A taxpayer identification number, passport number and
country of issuance, alien identification card number,
or number and country of issuance of any other
government-issued document evidencing nationality or
residence and bearing a photograph or similar safeguard
from each customer that is not a US person, except that
the customer can provide this information within a
reasonable period of time after the account is
established provided that the customer has applied for
and can provide a copy of such application for the
employer identification number prior to such time.
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TRANSFER AGENCY SERVICE AGREEMENT
Schedule C - AML Customer Identification Program Delegation
Page 2 of 3
b. GFS must verify all the above stated forms of customer
identification within a reasonable time after the account is opened.
Verification can occur through:
i. Documentation including:
i. Unexpired government-issued identification, such
as a driver's license or passport for individuals;
and
ii. Documents showing the existence of an entity, such
as certified articles of incorporation, a
government-issued business license, a partnership
agreement, or trust instrument for a person that
is not an individual.
ii. When documentary verification fails for reasons
including but not limited to, GFS not being familiar
with the documents presented, no documentation is
obtained by GFS, or the customer does not open the
account in person, GFS may then verify customer identity
via non-documentary methods including:
i. Directly contacting the customer;
ii. Independent verification of the customer's
identity through comparison of information
provided by customer with information obtained
from a consumer reporting agency, public database,
or other source;
iii. Checking references with other financial
institutions; and
iv. Obtaining a financial statement.
iii. When GFS cannot verify the identity of a customer, who
is not an individual, by documentary or non-documentary
methods stated above, GFS shall obtain information about
individuals with authority or control over such account,
such as persons authorized to effect transactions in the
Shareholder or record's account.
c. GFS must maintain records of all information obtained from customers
to verify their identity, including at a minimum:
a. All customer identification documentations obtained under
paragraph 1(a). Such information must be retained by GFS for
five (5) years after the date the account is closed;
b. A description of any documentary method used to verify
identification, as set out in paragraph b(i) above. GFS must
note the type of documents, any identification number in the
document, place of issuance and date of issuance. Such
information must be retained by GFS for five (5) years after
the record is made;
c. A description of the non-documentary methods, as set out in
paragraph b(ii) above, and results of the measures GFS took to
verify the identity of the customer. Such information must be
retained by GFS for five (5) years after the record is made;
and
25
TRANSFER AGENCY SERVICE AGREEMENT
Schedule C - AML Customer Identification Program Delegation
Page 3 of 3
d. A description of how GFS resolved any substantive discrepancy it
discovered when verifying the customer identification information it
received. Such information must be retained by GFS for five (5)
years after the record is made.
e. Other exempt account information as specified by the rules.
d. Within a reasonable time after GFS opens a customer account, and
preferably prior to opening the account, GFS must make a determination as
to whether the customer appears on any list of known or suspected
terrorists or terrorist organizations as issued by any federal government
agency and designated as such by the Department of the Treasury. GFS
should make the determination by cross-checking customer names with such
lists.
f. Trust must post a notice on its website and its account applications in an
effort to give customers notice, prior to opening the account, that GFS,
for the Trust, is requesting information to verify the customer's
identity. The notice must generally describe the identification
requirements.
26
