FORM OF TRANSFER AGENT AGREEMENT
FORM OF
THIS
AGREEMENT is made and entered into this _____ day of February, 2009, by and
between the Conestoga Funds (the “Trust”), a Delaware business trust (the
“Trust”), a Delaware business trust having its principal place of business at
000 X. Xxxxxx-Xxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, and
Mutual Shareholder Services, LLC, a Delaware Limited Liability Company
(“MSS”).
RECITALS:
A. The
Trust is an open-end management investment company registered with the United
States Securities and Exchange Commission under the Investment Company Act of
1940, as amended (the “1940 Act”); and
B. The
Trust desires to appoint MSS as its transfer agent and dividend disbursing and
redemption agent, and MSS desires to accept such appointment.
AGREEMENTS:
NOW, THEREFORE, in
consideration of the mutual covenants herein contained, the parties hereby agree
as follows:
1. DUTIES
OF MSS.
1.01 Subject
to the terms and conditions set forth in this Agreement, the Trust hereby
employs and appoints MSS to act, and MSS agrees to act, as transfer agent for
the Trust’s authorized and issued shares of beneficial interest of each class of
each portfolio of the Trust (the “Shares”), and as dividend disbursing and
redemption agent for the Trust.
1.02 MSS
agrees that it will perform the following services:
(a) In
accordance with procedures established from time to time by agreement between
the Trust and MSS, MSS shall:
(i) Receive
for acceptance, orders for the purchase of Shares, and promptly deliver payment
and appropriate documentation therefore to the Custodian of the Trust authorized
by the Board of Trustees of the Trust (the “Custodian”);
(ii) Pursuant
to purchase orders, issue the appropriate number of Shares and hold such Shares
in the appropriate Shareholder account;
(iii) Receive
for acceptance redemption requests and 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;
(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
Trust;
(vii) Maintain
records of account for and advise the Trust and its Shareholders as to the
foregoing;
(viii) Maintain
an Anti-Money Laundering Program in compliance with the USA Patriot Act of 2001
and regulation thereunder, and provide to the Trust a copy of MSS’s Anti-Money
Laundering Program;
(ix) Perform
such services as are necessary to implement and enforce the Trust’s Anti-Money
Laundering Program;
(x) Provide
necessary and reasonable access to properly authorized federal examiners so that
they can obtain all necessary information and records relating to the AML
Program and to inspect MSS’s implementation and operation of the AML Program;
and
(xi) Record
the issuance of shares of the Trust and maintain pursuant to SEC Rule 17Ad-10(e)
a record of the total number of shares of the Trust which are authorized, based
upon data provided to it by the Trust, and issued and
outstanding. MSS shall also provide the Trust on a regular basis with
the total number of shares which are authorized, issued and outstanding and
shall have no obligation, when recording the issuance of shares, to monitor the
issuance of such shares or to take cognizance of any laws relating to the issue
or sale of such shares, which functions shall be the sole responsibility of the
Trust.
(b) In
addition, MSS shall perform all of the customary services of a transfer agent,
dividend disbursing and redemption agent, 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 for U.S. resident
and non-resident alien accounts, preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required with respect to dividends and
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 Trust to monitor the total number of Shares sold in each
State.
Procedures
applicable to certain of these services may be established from time to time by
agreement between the Trust and MSS.
2. FEES
AND EXPENSES
2.01 In
consideration of the services to be performed by MSS pursuant to this Agreement,
the Trust agrees to pay MSS the fees set forth in the fee schedule attached
hereto as Exhibit “A”.
2.02 In
addition to the fee paid under Section 2.01 above, the Trust agrees to reimburse
MSS for out-of-pocket expenses or advances incurred by MSS in connection with
the performance of its obligations under this Agreement. In addition,
any other expenses incurred by MSS at the request or with the consent of the
Trust will be reimbursed by the Trust.
2.03 The
Trust agrees to pay all fees and reimbursable expenses within five days
following the receipt of the respective billing notice. Postage for
mailing of dividends, proxies, Trust reports and other mailings to all
shareholder accounts shall be advanced to MSS by the Trust at least seven days
prior to the mailing date of such materials.
3. REPRESENTATIONS
AND WARRANTIES OF MSS
MSS
represents and warrants to the Trust that:
3.01 It
is a Limited Liability Company duly organized and existing and in good standing
under the laws of the State of Delaware.
3.02 It
is duly qualified to carry on its business in the State of Ohio.
3.03 It
is empowered under applicable laws and by its charter and by-laws to enter into
and perform this Agreement.
3.04 All
requisite corporate proceedings have been taken to authorize it to enter into
and perform this Agreement.
3.05 It
has and will continue to have access to the necessary 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 TRUST
The Trust
represents and warrants to MSS that:
4.01 It
is a Business Trust duly organized and existing and in good standing under the
laws of Ohio.
4.02 It
is empowered under applicable laws and by its Declaration of Trust to enter into
and perform this Agreement.
4.03 All
corporate proceedings required by said Declaration of Trust have been taken to
authorize it to enter into and perform this Agreement.
4.04 It
is an open-end and diversified management investment company registered under
the 0000 Xxx.
4.05 A
registration statement under the Securities Act of 1933 is currently or will
become effective and will remain effective, and appropriate state securities law
filings as required, have been or will be made and will continue to be made,
with respect to all Shares of the Trust being offered for sale.
5. INDEMNIFICATION
5.01 MSS
shall not be responsible for, and the Trust shall indemnify and hold MSS
harmless from and against, any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of or attributable
to:
(a) All
actions of MSS or its agents or subcontractors required to be taken pursuant to
this Agreement, provided that such actions are taken in good faith and
without negligence or willful misconduct.
(b) The
Trust’s refusal or failure to comply with the terms of this Agreement, or which
arise out of the Trust’s lack of good faith, negligence or willful misconduct or
which arise out of the breach of any representation or warranty of the Trust
hereunder.
(c) The
reliance on or use by MSS or its agents or 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 Trust, and (ii) have
been prepared and/or maintained by the Trust or any other person or firm on
behalf of the Trust.
(d) The
reliance on, or the carrying out by MSS or its agents or subcontractors of, any
instructions or requests of the Trust.
(e) The
offer or sale of Shares in violation of any requirement under the federal
securities laws or regulations or the securities laws or regulations of any
state that such Shares be registered in such state or in violation of any stop
order or other determination or ruling by any federal agency or any state with
respect to the offer or sale of such Shares in such state.
5.02 MSS
shall indemnify and hold the Trust harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to any action or failure or 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 Trust 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 Trust for
any action taken or omitted by it in reliance upon such instructions or upon the
opinion of such counsel. MSS, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or document furnished by or
on behalf of the Trust, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided MSS or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means authorized
by the Trust, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the
Trust. MSS, its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officers of the Trust, and
the proper countersignature of any former transfer agent or registrar, or of a
co-transfer agent or co-registrar.
5.04 In
the event either party is unable to perform its obligations under the terms of
this Agreement because of acts of God, strikes, equipment or transmission
failure or damage reasonably beyond its control, or other causes reasonably
beyond its control, such party shall not be liable for damages to the other for
any damages resulting from such failure to perform or otherwise from such
causes.
5.05 Upon
the assertion of a claim for which either party may be required to indemnify the
other, the party of seeking indemnification shall promptly notify the other
party of such assertion, and shall keep the other party advised with respect to
all developments concerning such claim. The party who may be required
to indemnify shall have the option to participate with the party seeking
indemnification the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any 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 TRUST AND MSS
6.01 The
Trust shall promptly furnish to MSS a certified copy of the resolution of the
Board of Trustees of the Trust authorizing the appointment of MSS and the
execution and delivery of this Agreement.
6.02 MSS
hereby agrees to establish and maintain facilities and procedures reasonably
acceptable to the Trust 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 Trust and will be
preserved, maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Trust on and in accordance with
its request.
6.04 MSS
and the Trust agree that all books, records, information and data pertaining to
the business of the other party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain confidential, and
shall not be voluntarily disclosed to any other person, except as may be
required by law.
6.05 In
case of any requests or demands for the inspection of the Shareholder records of
the Trust, MSS will endeavor to notify the Trust and to secure instructions from
an authorized officer of the Trust as to such 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
Trust of any unusual request to inspect or copy the shareholder records of the
Trust or the receipt of any other unusual request to inspect, copy or produce
the records of the Trust.
7. TERM
OF AGREEMENT
7.01 This
This Agreement shall become effective as of the date hereof and shall remain in
force for a period of three years. This Agreement will automatically
renew for successive annual terms unless one party provides written notice to
the other party 90 days prior to the annual renewal date that the agreement will
not be renewed. Each party to this Agreement has the option to
terminate this Agreement during the initial three year term and any renewal
period, without penalty, upon 90 days prior written notice.
7.02 Should
the Trust exercise its right to terminate, all out-of-pocket expenses associated
with the movement of records and material will be paid by the
Trust. 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 Trustees of
the Trust.
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):
To the
Trust: To
MSS:
000 X.
Xxxxxx-Xxxxxxx
Xxxx Mutual
Shareholder Services
Xxxxxx
Xxxxx, Xxxxx
000 0000
Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX
00000 Xxxxxxxxx
Xxxxxxx, XX 00000
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
_________________________: Mutual
Shareholder Services, LLC
By: By:
Its:
___________________________ Its:
___________________________
