TRANSFER AGENT AGREEMENT
THIS TRANSFER AGENT AGREEMENT ("Agreement"), is made and entered
into this 26th day of June, 1997 by and between the Berkshire Capital
Investment Trust, a Delaware business trust (hereinafter called the "Trust")
presently having a portfolio named the Berkshire Capital Growth & Value Fund
(hereinafter called the "Fund"), and Berkshire Capital Holdings, Inc., a
California Corporation (hereinafter called the "Transfer Agent").
W I T N E S S E T H:
WHEREAS, the Fund, and open-end, non-diversified investment company
registered under the Investment Company Act of 1940 (the "1940 Act"), wishes
to retain the Transfer Agent to provide Transfer, Redemption and Dividend
Disbursing services to the Fund and also has agreed to act for the Fund in
other respects as hereinafter stated; and
WHEREAS, the Transfer Agent is willing to furnish such services on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
Section 1. The Fund hereby appoints the Transfer Agent to act as Transfer,
Registrar, Redemption and Dividend Disbursing Agent and the Transfer Agent
accepts such appointments and agrees to act in such capacities upon the terms
set forth in this Agreement.
The Transfer Agent agrees to comply with all relevant provisions of the 1940
Act, the Internal Revenue Code, other applicable laws and all applicable rules
and regulations thereunder.
If the Fund is a series company for purposes of Rule 18f-2 under the 1940 Act,
the term "Fund" as used in this Agreement shall be deemed to refer to each
such series as a separate portfolio unless the context otherwise requires. In
performing its functions hereunder, the Transfer Agent shall in all cases
comply with the procedures and conditions set forth in the Fund's then current
Prospectus and Statement of Additional Information ("SAI"), as provided to the
Transfer Agent by the Fund. To the extent that the Prospectus and SAI cover
procedures and duties of the Transfer Agent, agreement as to such matters must
have been reached between the Transfer Agent and the Fund prior to the
effectiveness of the Prospectus.
Section 2. The Fund currently has no Share Certificates outstanding, and does
not intend for issue of Share Certificates in the future. Should the Fund wish
to issue Certificates in the future, it can do so only with the consent of the
Transfer Agent. All language in this agreement relating to Share Certificates,
such as the following paragraph, will be of no effect until such time as it
mutually agreed that Share Certificates shall be issued.
The Fund shall furnish to the Transfer Agent a sufficient supply of blank
Share Certificates and from time to time will renew such supply upon the
request of the Transfer Agent. Such blank Share Certificates shall be signed
manually or by facsimile signatures of officers of the Fund authorized by law
or the by-laws of the Fund to sign Share Certificates and, if required, shall
bear the Fund's seal or facsimile thereof.
Section 3. The Transfer Agent shall make original issues of Shares in
accordance with Sections 13 and 14 below and with the Fund's then currently
effective Prospectus upon being furnished with (i) a certified copy of a
resolution of Trustees of the Fund authorizing such issue and (ii) necessary
funds for the payment of any original issue tax applicable to such additional
Shares. If requested, a copy of the opinion of counsel as to the validity of
such additional Shares shall be furnished to the Transfer Agent upon the
Fund's filing of its Rule 24f-2 Notice under the 1940 Act with the Securities
and Exchange Commission.
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Section 4. Transfers of Shares shall be registered and, subject to the
provisions of Section 10, new Share Certificates issued by the Transfer Agent
upon surrender of outstanding Share Certificates, if any, (i) in form deemed
by the Transfer Agent to be properly endorsed for transfer, (ii) with all
necessary endorser's signatures guaranteed by a member firm of a national
securities exchange, the NASD, or a commercial bank, except when the
requirement of a signature guarantee is waived in accordance with the Fund's
then current Prospectus or SAI or when otherwise authorized by the Fund
pursuant to Written Instructions (as defined in Section 34 below), accompanied
by (iii) such assurances as the Transfer Agent shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary
endorsement, and (iv) satisfactory evidence of compliance with all applicable
laws relating to the payment or collection of taxes. The Transfer Agent shall
retain all shareholder applications and shall compare the signature(s) on
written redemption requests with the signature on the shareholder applications
as may be necessary in the opinion of the Transfer Agent, provided that the
Transfer Agent shall be liable for any loss due to forgery or improper
signature of any kind resulting from the negligence of the Transfer Agent in
making or failing to make such comparison. The Transfer Agent shall take such
reasonable measures as may be agreed upon from time to time between the Fund
and the Transfer Agent to enable the Fund to identify proposed transfers
which, if effected, appear likely to cause the Fund to fall within the
definitions of a personal holding company as defined in the Internal Revenue
Code and shall not make such transfer without prior written approval of the
Fund and its counsel.
Section 5. When mail is used for delivery of Share Certificates the Transfer
Agent shall forward Share Certificates in "non-negotiable" form by first-class
mail, and Share Certificates in "negotiable" form by registered mail, return
receipt requested, all mail deliveries to be covered while in transit to the
addressee by insurance arranged for by the Transfer Agent.
Section 6. In registering transfers of Shares the Transfer Agent may rely upon
the Uniform Commercial Code or any other statutes which in the opinion of
counsel protect the Transfer Agent and the Fund in not requiring complete
documentation, (subject to compliance with procedures set forth in the Fund's
current Prospectus and/or SAI), in registering transfer with inquiry into
adverse claims, in delaying registration for purposes of such inquiry, or in
refusing registration where in its judgement an adverse claim requires such
refusal.
Section 7. The Transfer Agent may issue new Share Certificates in place of
Share Certificates represented to have been lost, destroyed, or stolen, upon
receiving indemnity satisfactory to the Transfer Agent and the Fund and may
issue new Share Certificates in exchange for, and upon surrender of, mutilated
Share Certificates.
Section 8. In case any officer of the Fund who shall have signed manually or
whose facsimile signature shall have been affixed to blank Share Certificates
shall die, resign or be removed prior to the issuance of such Share
Certificates, the Transfer Agent may issue or register such Share Certificates
as the Share Certificates of the Fund notwithstanding such death, resignation
or removal until otherwise directed by the Fund; and the Fund shall file
promptly with the Transfer Agent such approval, adoption or ratification as
may be required by law.
Section 9. The Transfer Agent will maintain mutual fund account records in
which, among other details, it will note the issuance, transfer and redemption
of Shares, whether certificated or not. Whenever a Shareholder deposits Shares
represented by Share Certificates in an account, the Transfer Agent upon
receipt of the Share Certificates registered in the name of the Shareholder
(or if not so registered, in proper form for transfer), shall cancel such
Share Certificates and make appropriate entries in its stock transfer records.
The Transfer Agent will keep account records, part of which shall be the stock
transfer records, in which it will note the names and registered addresses of
Shareholders and the number of Shares and fractions owned by them, whether or
not Share Certificates are outstanding.
Section 10. The Transfer Agent shall issue Share Certificates for Shares only
upon receipt of a written request from a Shareholder. In all other cases, the
Transfer Agent shall dispense with the issuance and countersignature of Share
Certificates whenever Shares are purchased. The Transfer Agent shall process
purchase and redemption transactions by making appropriate entries in the
Fund's account records.
Section 11. The Transfer Agent shall, in addition to the duties and functions
above-mentioned, perform the usual duties and functions of a stock Transfer
Agent for a corporation. It shall countersign for issuance Share Certificates
representing original issue treasury shares as directed by the Written
Instructions of the Fund and shall transfer Share Certificates registered in
the name of Shareholders from one Shareholder to another in the usual manner.
The Transfer Agent may rely conclusively and act without further investigation
upon any list, instruction, certification, authorization, Share Certificate or
other instrument or paper reasonably believed by it in good faith to be
genuine and unaltered, and to have been signed, countersigned, or executed by
duly authorized person or persons, or upon the instructions of any duly
authorized officer of the Fund, or upon the advice of counsel for the Fund or
for the Transfer Agent. The Transfer Agent may record any transfer of Share
Certificates which is reasonably believed by it in good faith to have been
duly authorized or may refuse to record any transfer of Share Certificates if
in good faith the Transfer Agent deems such refusal necessary to avoid any
liability on the part of either the Fund or the Transfer Agent; provided,
however, that the Transfer Agent shall promptly notify the Fund of any such
refusal to record any transfer and shall act in accordance with the Fund's
Written Instructions, if any. The Fund agrees to indemnify and hold harmless
the Transfer Agent from and against any and all losses, costs, claims, and
liability which it may suffer or incur by reason of so relying or acting or
refusing to act.
Section 12. In case of any request or demand for the inspection of the share
records of the Fund, the Transfer Agent shall endeavor to notify the Fund and
to secure instructions as to permitting or refusing such inspection. However,
the Transfer Agent may (after giving written notice to the Fund) exhibit such
records to any person in any case where it is advised by its counsel that it
may be held liable for failure to do so, unless indemnified against such
liability by the Fund.
ISSUANCE OF SHARES
Section 13. For the purpose of this Section, the Fund hereby instructs the
Transfer Agent to consider Shareholder payments as available for investment in
accordance with the policies and procedures set forth in the Fund's then
current Prospectus and SAI. Immediately after the time or times and on each
day on which the Fund's then current Prospectus or SAI states that its net
asset value per share shall be determined, the Transfer Agent shall obtain
from the Fund or its designated agent a quotation of the net asset value per
share determined as of such time on such day. The Transfer Agent reserves the
right to charge the Fund its reasonable costs of making corrections to
shareholder records if it is later determined that the Fund supplied an
inaccurate net asset value.
The Transfer Agent shall, on the same business day on which any order for the
purchase of Shares is received and utilizing the net asset value per share
next determined after the receipt of such order, determine the amount to be
invested and the number of Shares and fractional Shares (rounded to three
decimal places) to be purchased. The Transfer Agent shall thereupon as agent
for the Shareholders place a purchase order with the Fund for the proper
number of Shares and fractional Shares to be purchased and confirm such number
to the Fund in writing. The Transfer Agent shall total the amount available
for investment in Shares at the net asset value determined by the Fund or its
designated agent at each pricing time.
The Transfer Agent shall pay over to its designated bank the net asset value
of Shares and fractional Shares purchased immediately upon receipt of the
consideration therefor. In the event that any check or other order for the
payment of money is returned unpaid for any reason, the Transfer Agent shall
give prompt notification to the Fund of the non-payment of said check and take
such action as the Fund may authorize by Written Instructions.
Any profit on the liquidation of unpaid shares accrues to the Fund. In the
event of loss upon liquidation of unpaid shares the Transfer Agent will charge
the purchaser's account for the amount of such loss. If the balance in such
account is insufficient to cover the loss the Transfer Agent will assist the
Fund in the Fund's efforts to recover any such losses from the purchaser.
Section 14. The Transfer Agent, in making the calculations provided for in
Section 13, shall rely on its record of available investment funds. The proper
number of Shares and fractional Shares shall then be issued daily and credited
by the Transfer Agent to the shareholder accounts. The Transfer Agent shall
mail to each Shareholder a confirmation of each purchase (if provided for
under the provisions of the Shareholder's account) no later than the next
business day, with copies to interested parties if requested.
Such confirmations shall among other details show the prior Share balance, the
new Share balance, the dollar value, the Shares for which Stock Certificates
are outstanding (if any), the amount invested and the price paid for the
newly-purchased Shares.
The Transfer Agent shall provide the Fund with the total number of shares
issued by the Fund each day. In the case any issue of shares would result in
overissuance, the Transfer Agent shall notify the Fund.
REDEMPTIONS
Section 15. The Transfer Agent shall process all requests from Shareholders to
redeem Shares and determine the number of Shares required to be redeemed to
make monthly payments, automatic payments or the like and advise the Fund, on
the same business day that the request for redemption was received, of the
total number of Shares and fractional Shares (rounded to three decimal places)
to be redeemed. Notwithstanding the foregoing, if a redemption request is for
a dollar value of Shares in excess of the dollar value of Shares in the
specified account or is not in accordance with the requirements of the
Prospectus and/or SAI, the Transfer Agent shall not effect such redemption in
whole or in part, and shall immediately advise both the Fund and the
Shareholder of such discrepancy. The Fund or its designated agent shall then
quote to the Transfer Agent the applicable net asset value; whereupon the
Transfer Agent shall furnish the Fund with an appropriate confirmation of the
redemption and process the redemption, at the net asset value per share next
computed after receipt of the order for redemption, by filing with the Fund's
designated bank an appropriate statement and making the proper distribution
and application of the redemption proceeds in accordance with the Fund's
Prospectus or SAI. The stock registry books recording outstanding Shares and
the individual account of the Shareholder shall be properly debited. If
provided for under the provisions of the shareholder's account, the Transfer
Agent shall mail to each Shareholder a confirmation of each redemption no
later than the next business day, with copies to interested persons if
requested. Such confirmation shall among other details show the prior Share
balance, the new Share balance and total dollar value thereof, the Shares for
which stock certificates are outstanding (if any), the amount redeemed and the
price received for the redeemed Shares.
Section 16. The proceeds of redemption shall be remitted by the Transfer
Agent, in each case by draft or other instrument drawn against funds held by
the Fund in its designated bank, in accordance with the Fund's then currently
effective Prospectus or SAI as follows:
(i) By check drawn to the order of and mailed to the Shareholder at
the address of record no later than seven (7) business days after the
redemption request is received.
(ii) By wire to a designated bank or broker upon telephone request,
without signature guarantee, if such redemption procedure has been elected
by the Shareholder and provided the Transfer Agent has proper procedures in
place to accommodate such request.
(iii) To a person other than the Shareholder or to an address other
than the Shareholder's registered address only if instructions are received in
writing with signature guaranteed. Planholders transferring to another Plan
custodian do not require written signature guarantees but do require the
written acceptance of the new custodian.
(iv) By other procedures commonly followed by mutual funds and
mutually agreed upon by the Fund and the Transfer Agent.
Any change in the bank or brokerage account or registered address will be
accepted by the Transfer Agent only if made in writing by the Shareholder,
with signature guaranteed, unless a different procedure is agreed to in
writing by the Fund and the Transfer Agent.
If required by the Fund's then current Prospectus or SAI, the request and
stock certificates, if any, for Shares being redeemed, must have the owner's
signature guaranteed by a domestic commercial bank or trust company or a
member firm of a national securities exchange or the NASD. If Share
Certificates have not been issued to the redeeming Shareholder, the signature
of the Shareholder on the redemption request must be similarly guaranteed. If
the Fund authorizes the Transfer Agent by Written Instructions to waive the
signature guarantee in certain instances, the Fund hereby provides the
Transfer Agent, its successors and assigns, the same protections the Transfer
Agent would normally receive from a signature guarantee requirement.
The Transfer Agent shall retain all canceled certificates for redemption or
transfer for a period of three (3) years, during which time it shall be able
to produce said certificates upon appropriate notice from the Fund.
For the purpose of redemption of Shares which have been purchased by check
within 15 business days of a receipt of the redemption request for such
shares, the Fund shall provide the Transfer Agent, from time to time, with
Written Instructions concerning the time within which such requests may be
honored. The Transfer Agent has no responsibility to determine if any
investment payment will be reversed for any reason and is not responsible in
any way for the failure of any investment collected.
The authority of the Transfer Agent to perform its responsibilities under
Section 15 and 16 shall be suspended upon the Transfer Agent's receipt of
notification of the suspension of the determination of the Fund's net asset
value.
DIVIDENDS
Section 17. Upon the declaration of each dividend and each capital gains
distribution by the Board of Trustees of the Fund, the Fund shall notify the
Transfer Agent by Written Instructions of the date of such declaration, the
amount payable per share, the sources from which such dividend or distribution
is made, and, unless such dividend is a regular daily or monthly dividend
payable by a money market or other fund, the record date for determining the
Shareholders entitled to payment. The ex-date and payment date shall always be
the next determination of net asset value after the record date. The Transfer
Agent shall withhold such sums as may be required to be withheld under
applicable income tax laws, rules and regulations.
Section 18. Upon the payment date of a dividend or distribution declared by
the Fund's Board of Trustees, the Fund will cause the designated bank to
transfer to the disbursement account maintained in the name of the Fund the
total amount of such dividends or distributions payable in cash to those
Shareholders electing to receive such dividends or distributions in cash. On
payment date, the Transfer Agent shall prepare a check in the appropriate
amount and mail it no later than the third business day after the payment date
to such Shareholder at his address of record or to such other address as the
Shareholder may have designated.
With regard to Shareholders not electing to receive such dividends or
distributions in cash, the Transfer Agent will automatically reinvest all
dividends and other such distributions in additional shares at the net asset
value per share on payment date. When provided by the provisions of the
Shareholder's account, the Transfer Agent will promptly mail to each
shareholder at his address of record or such other address as the Shareholder
may have designated a statement showing the number of full and fractional
Shares (rounded to three decimal places) currently owned by the Shareholder
and the net asset value of the shares so credited to the Shareholder's
account.
The Transfer Agent's dividend statement meets the requirements of the 1940 Act
and Rule 19a-1 thereunder for notification as to the source(s) of dividend
payment(s). Where further notification detail is required, the Transfer Agent
shall prepare and distribute the information necessary as directed by the
Fund.
GENERAL PROVISIONS
Section 19. The Transfer Agent shall provide to the Fund's investors equity
fund account confirmations with each transaction, money fund account
confirmations with each transaction or monthly (as desired by the investor),
investor choice of monthly transfer agency consolidated statements or monthly
brokerage consolidated statements, as well as all services available now or in
the future to the shareowners of mutual funds serviced by the Transfer Agent,
on the same terms and conditions. The Transfer Agent shall provide account
confirmation statements as at December 31 of each year which include a listing
of all transactions in the account during the calendar year then ended, plus
income tax reporting information.
The Transfer Agent will not use its position to solicit business from the
shareholders of the Fund.
Section 20. The Transfer Agent shall report daily the sales and redemptions in
each state in a manner suitable for state "blue-sky" reporting by the Fund.
The Transfer Agent has no further responsibility as to controlling sales of
Fund Shares of maintaining the various registrations required under state
"blue-sky" laws and regulations. If the Fund notifies the Transfer Agent, the
Transfer Agent will stop Shares from being sold in all states where the Fund's
registration is not current. Maintaining current registration information
on-line is the responsibility of the Fund.
Section 21. The Transfer Agent shall maintain records (which may be part of
the stock transfer records) in connection with the issuance and redemption of
Shares and the administration of the Plans and dividend reinvestments, in
which will be noted the transactions effected for each Shareholder and the
number of Shares and fractional Shares (rounded to three decimal places) owned
by each for which no Share Certificates are outstanding. The Transfer Agent
shall create and maintain all necessary records in accordance with good
custodial practice, including, but not limited, to records required by Section
31(a) of the 1940 Act and Section 17(A) of the Securities and Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder. The
Transfer Agent agrees to make available upon request and to preserve for
periods prescribed in Section 31(a) under the 1940 Act and Section 17(A) of
the Securities and Exchange Act of 1934, as amended, and the rules and
regulations thereunder, any records relating to services provided under this
Agreement or maintained by it on behalf of the Fund. All such records shall be
the property of the Fund.
The Transfer Agent shall also maintain the following records for each
Shareholder's account: name, address, and tax identification number; number of
Shares held and specific form of holding, including numbers and denominations
of certificates, if any; historical information regarding the account of each
Shareholder, including dividends paid, distributions made and date and price
for all transactions in a Shareholder's account; any stop or restraining order
placed against a Shareholder's account; any dividend reinvestment order,
dividend address and correspondence relating to the maintenance of a
Shareholder's account; all tax and withholding information relating to a
Shareholder's account; information with respect to withholding on foreign
accounts.
The Transfer Agent shall maintain records for all accounts opened by entities
assigned an institution number ("institution") so that where required the
aggregate average daily value of all of an institution's accounts can be
determined and a record of such values maintained, and so that duplicate
statements for the accounts can be prepared and sent to each institution.
The Transfer Agent represents and warrants that the various procedures and
systems which it has implemented with regard to safeguarding from loss and
damage attributable to fire, theft, or any other cause of the Fund's blank
checks, blank share certificates, records and other data and the Transfer
Agent's records, data, equipment, facilities, and other property used in the
performance of its obligations hereunder are adequate and that it will make
such changes therein from time to time as are required for the secure
performance of its obligations hereunder.
Section 22. The Transfer Agent shall maintain such records as shall enable the
Fund to fulfill in a timely fashion the filing requirements of Form N-SAR or
of any successor monthly, quarterly or annual report required by the 1940 Act
or rules and regulations thereunder to be filed by the Fund. All such records
shall be the property of the Fund.
Section 23. The Transfer Agent shall cooperate with the Fund's independent
public accountants and shall take all reasonable action in the performance of
its obligations under this Agreement to assure that the necessary information
is made available to such accountants for the expression of their opinion,
including but not limited to the opinion included in the Fund's annual or
semi-annual reports on Form N-SAR, or of any successor annual report required
by the 1940 Act or rules thereunder to be filed by the Fund.
Section 24. In addition to the services as Transfer Agent and Administrator as
above set forth, the Transfer agent will perform other services for the Fund
as agreed from time to time, including but not limited to, preparation of
filing with the Internal Revenue Service and mailing to Shareholders such
Federal Tax Information Forms as are required to be so prepared, filed and
mailed by applicable laws, rules and regulations, mailing periodic reports of
the Fund, preparation of Shareholder lists as necessary, and mailing initial
notices of Shareholder's meetings, proxies and proxy statements.
The Transfer Agent shall answer telephone calls and correspondence from
Shareholders relating to their share accounts. The Transfer Agent shall
respond to all inquiries from Shareholders relating to the administration of
their accounts within one (1) business day with respect to answers delivered
by telephone and within three (3) business days with respect to answers
delivered in writing. Copies of all correspondence from Shareholders involving
complaints about the management of the Fund, the services provided by or for
the Fund, the Transfer Agent or others, or concerning complaints relating to
the Fund shall be sent immediately to the Fund. Summaries of any similar
matters conveyed by a Shareholder by telephone shall be prepared by the
Transfer Agent and sent to the Fund within three (3) business days.
Telephone calls and correspondence on other matters will be referred to the
Fund.
The Transfer Agent shall keep records of Shareholder substantive telephone
calls and correspondence and replies thereto, and of the lapse of time between
receipt of such substantive telephone calls and correspondence and the making
of replies.
Section 25. Nothing contained in this Agreement is intended to or shall
require the Transfer Agent in any capacity hereunder to perform any functions
or duties on any day identified in the Prospectus and/or SAI on which the Fund
is closed. Functions or duties normally scheduled to be performed on such days
shall be performed on, and as of, the next business day on which the Transfer
Agent is open, except when the Transfer Agent is closed to observe a legal
emergency. When the Fund is open and if the Fund has received purchases or
redemption requests, such purchases and redemptions shall be priced and
executed "as of" such date on the business day next following such day.
Section 26. The Transfer Agent shall receive from the Fund, as compensation
for the processing services rendered, an amount of $10.00 per executed
redemption request of Shares of the Fund, regardless of the aggregate dollar
value or the number of Shares redeemed. A record of all processed redemptions
shall be kept monthly and the Fund shall pay the Transfer Agent after the end
of each calendar month. The Fund shall reimburse the Transfer Agent for
expenses such as costs of forms, statements, envelopes, postage, shipping,
telephone, and statement microfiche copies. Telephone costs will be passed to
the Fund at cost. All such payments and reimbursements shall be charged to and
paid by the Fund on a monthly basis. It is understood that the Fund may, in
the future, undertake to performs certain of the services herein contemplated
to be performed by the Transfer Agent, such as maintaining the facility for
Shareholders to make telephone purchases, redemptions and transfers of Shares.
To the extent, if any, the Fund undertakes such duties, the Transfer Agent
shall be relieved of such obligation.
Section 27. The Transfer Agent in acting for Planholders, or any other
capacity set forth in this Agreement, shall not be personally liable for any
taxes, assessments, or governmental charges which may be levied or assessed on
any basis whatsoever in connection with the administration of the Plans,
excepting only for taxes assessed against the Transfer Agent in its corporate
capacity arising out of its compensation hereunder.
Section 28. The Transfer Agent shall not be liable hereunder for any
non-negligent action taken in good faith and reasonably believed to be within
the powers conferred upon it by this Agreement. The Fund shall indemnify the
Transfer Agent and hold it harmless from any and against any and all actions,
suits and claims, whether groundless or otherwise, arising directly or
indirectly out of or in connection with its performance under this Agreement
including but not limited to its performance as Transfer Agent and
Administrator of Plans and from and against any and all losses, damages,
costs, charges, counsel fees, payments expenses and liabilities incurred by
the Transfer Agent in connection with any such action, suit, or claim, except
such as shall result from its own negligent act, omission or willful
misconduct or that of its officers, agents or employees. The Fund shall not be
required to indemnify the Transfer Agent against any expenses or liabilities
arising out of a default judgement, a confession of judgement or a settlement
entered into without prior written consent of the Fund. The Transfer Agent
shall not be under any obligation to prosecute or to defend any action, suit
or claim arising out of or in connection with its performance under this
Agreement as Transfer Agent and Administrator of Plans, which, in the opinion
of counsel, may involve it in expense or liability. At its option the Fund may
and upon request of the Transfer Agent the Fund shall assume the entire
defense of any action, suit, or claim subject to the foregoing indemnity. The
Transfer Agent shall give the Fund notice, and reasonable opportunity to
defend, any such action, suit, or claim, in the name of the Fund or the
Transfer Agent or both. In the event the Fund assumes the defense, the
Transfer Agent shall be responsible for its own legal fees and expenses from
the date the Fund so assumes the defense, except for such fees and expenses
incurred at the request of the Fund. The Fund and Transfer Agent shall
cooperate fully in the defense of any action, suit or claim.
The Transfer Agent at its expense will make corrections and adjustments as may
be required, where the Transfer Agent, its officers, agents, employees or
delegates are the cause of any error made in rendering the services described
in this agreement, without limitation.
Without limitation of the foregoing:
(i) The Transfer Agent may rely upon and shall not be liable to the
Fund for the advice of the Fund, counsel (who may be counsel for the Fund or
counsel for the Transfer Agent) and upon statements of accountants, brokers
and other persons believed by it in good faith to be expert in the matters
about which they are consulted and for any actions taken in good faith upon
such statements.
(ii) The Transfer Agent shall not be liable for any action
reasonably taken in good faith reliance upon any Written Instructions or
certified copy of any resolution of the Board of Trustees of the Fund,
provided, however, that upon a receipt of a Written Instruction countermanding
a prior Instruction which has been fully executed by the Transfer Agent, the
Transfer Agent shall attempt to honor to the extent then possible, such later
Instructions and rely upon the genuineness of any such document or
correspondence reasonably believed in good faith to have been validly
executed.
(iii) The Transfer Agent may rely and shall be protected in acting
upon any signature, instruction, request, letter of transmittal, certificate,
opinion of counsel, statement, instrument, report, notice, consent, order, or
other paper or document reasonably believed by it to be genuine and to have
been signed or presented by the Shareholder, Fund or other proper party or
parties.
Section 29. The Fund shall promptly cause to be turned over to the Transfer
Agent (i) an accurate list of Shareholders of the Fund showing the proper
registered address and number of Shares owned and whether such shares are
represented by outstanding Share Certificates or by non-certificated share
accounts, (ii) all records relating to Plans, including original applications
signed by the Planholders and original plan accounts recording payments,
contributions, deductions, reinvestments, withdrawals and liquidations, and
(iii) all shareholder records, files, and other materials necessary or
appropriate for proper performance of the functions assumed by the Transfer
Agent under this Agreement (hereinafter called "Materials"). The Fund agrees
to indemnify and hold the Transfer Agent, its successors and assigns, harmless
of and from any and all expenses, damages, claims, suits, liabilities,
actions, demand and losses of third parties arising out of or in connection
with any error, omission, inaccuracy or other deficiency of such Materials, or
out of the failure of the Fund to provide any portion of such Materials or to
provide any information needed by the Transfer Agent to perform knowledgeably
its functions. The Fund agrees to pay reasonable compensation to the Transfer
Agent to cover the Transfer Agent's expenses in correcting any such error,
omission, inaccuracy or other deficiency of the Materials.
Section 30. The Transfer Agent shall at all times act in good faith and shall
use its best efforts to insure the accuracy of all services performed under
this Agreement and shall be liable for and shall indemnify and hold the Fund
harmless from and against any and all actions, suits and claims, whether
groundless or otherwise, and from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liabilities incurred by
the Fund, in connection with any such action, suit or claim arising directly
or indirectly out of or in connection with errors caused by the Transfer
Agent's negligence, bad faith or willful misconduct or that of its agents or
employees. The Transfer Agent shall not be required to indemnify the Fund
against any expenses or liabilities arising out of a default judgement, a
confession of judgement or a settlement entered into without the prior written
consent of the Transfer Agent. The Fund shall not be under any obligation to
prosecute or defend any action, suit or claim arising directly or indirectly
out of or in connection with errors caused by the Transfer Agent's negligence,
bad faith or willful misconduct or that of its employees or agents which, in
the opinion of counsel, may involve it in expense or liability. The Transfer
Agent may at its option and, upon request of the Fund the Transfer Agent
shall, assume the entire defense of any action, suit or claim subject to the
foregoing indemnity. The Fund shall give the Transfer Agent notice of, and
reasonable opportunity to defend, any such action, suit or claim in the name
of the Fund or the Transfer Agent or both. In the event the Transfer Agent
assumes the defense, the Fund shall be responsible for its own legal fees and
expenses from the date the Fund so assumes the defense, except for such fees
and expenses which are incurred at the request of the Transfer Agent. The
Transfer Agent and the Fund agree to cooperate fully in the defense of any
such action, suit or claim.
Section 31. The Transfer Agent acknowledges and agrees that all books and
records maintained for the Fund in any capacity under this Agreement are the
property of the Fund and may be inspected by the Fund at any reasonable time.
The Transfer Agent agrees to regard and preserve as confidential all records
and other information relative to the Fund, and will not without written
authority of the Fund disclose to others, during the term of this Agreement or
thereafter, any such records or other information.
In the event of termination of this Agreement for any reason, the Transfer
Agent agrees to provide the Fund with complete and accurate records and to
assist the Fund in the orderly transfer of accounts and records. Without
limiting the generality of the foregoing, the Transfer Agent agrees upon
termination of this Agreement:
(i) to deliver to the Fund all electronic storage devices containing
the Fund's accounts and records in computer readable form together with such
record layouts and additional information as may be necessary to enable the
Fund to utilize the information therein;
(ii) to cooperate with the Fund and any successor transfer agent in
the interpretation of the Fund's accounts and records; and
(iii) to reimburse the Fund its reasonable costs arising out of any
error, omission, inaccuracy or other deficiency in the Fund's accounts and
records which occurred during the term of this Agreement which arise from the
negligence or other error of the Transfer Agent as long as claim for such
reimbursement is made within 90 days of termination.
Section 32. The Transfer Agent shall require all employees at the time of
employment to have fingerprints made and checked by the FBI under procedures
established as standard for stockbrokerage employees by the NASD, as well as
for transfer agency employees by the SEC.
Section 33. The practices and procedures of the Transfer Agent and the Fund
set forth in this Agreement, or any other terms or conditions of this
Agreement, may be altered or modified from time to time as may be mutually
agreed by the parties to this Agreement. In special cases the parties hereto
may adopt in writing such procedures as may be appropriate or practical under
the circumstances, and the Transfer Agent may conclusively rely on the
determination of the Fund that any special procedure which has been approved
by the Fund does not conflict with or violate any requirements of its
Declaration of Trust, By-Laws or Prospectus, or any rule, regulation or
requirement of any regulatory body.
Section 34. The Fund shall file with the Transfer Agent a certified copy of
each resolution of its Board of Trustees authorizing the execution of Written
Instructions or the transmittal of Oral Instructions.
The following additional terms, for purposes of this Agreement or any
amendment or supplement thereto, shall have the meanings herein specified
unless the context otherwise requires:
Plan: the term Plan shall include such investment plan, dividends or capital
gains reinvestment plans, systematic withdrawal plans or other types of plans
set forth in the then currently effective Prospectus of the Fund, including
any qualified retirement plan which is a Shareholder of the Fund, in form
acceptable to the Transfer Agent, which the Fund may from time to time adopt
and make available to its Shareholders, including plans or accounts by
individuals or corporations. All Planholders are Shareholders, who use a
specific plan or service not used by all Shareholders as a whole.
Administrator: The term Administrator of a Plan means the Transfer Agent
solely in its capacity as agent for the performance of those retirement plan
tasks which can be performed on a group or mass basis by the Transfer Agent's
systems. It does not include certain corporate retirement plan tasks that are
often performed on an individual basis, such as preparing Summary Plan
Descriptions and/or preparing IRS Form 5500.
Section 35. This Agreement may be amended from time to time by a supplemental
agreement executed by the Fund and the Transfer Agent.
Section 36. Either the Fund or the Transfer Agent may give 60 days' written
notice to the other of the termination of this Agreement, such termination to
take effect at the time specified in the notice; provided, however, the
obligations set forth in Sections 28,30,31,38 and 39 and, for the fiscal year
of the Fund in which termination occurs, Sections 22 and 23, shall survive
such termination, unless satisfied.
Section 37. Any notice required or desired to be given hereunder shall be in
writing and shall be considered effective (i) when delivered, if by personal
delivery, (ii) upon receipt, if sent by FAX, which FAX has been telephonically
confirmed, between the hours of 9:00 a.m. and 5:00 p.m. local time of the
recipient on a business day, or if not, at 9:00 a.m., local time on the next
business day, or (iii) upon the earlier of actual or first attempted delivery,
if mailed, postage prepaid, addressed as follows:
If to the Transfer Agent:
Berkshire Capital Holdings, Inc.
000 Xxxxx Xxxxx, #000
Xxx Xxxx, Xxxxxxxxxx 00000-0000
FAX No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Fund:
Berkshire Capital Investment Trust
000 Xxxxx Xxxxx, #000
Xxx Xxxx, Xxxxxxxxxx 00000-0000
FAX No.: (000) 000-0000
Telephone No.: (000) 000-0000
Section 38. The Transfer Agent and the Fund each represent and warrant to the
other as to itself that all actions required by their respective trustees or
shareholders has been taken to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby; the
execution and delivery of this Agreement and consummation of the transactions
contemplated hereby do not contravene any provision of their respective
charter or by-laws or of any laws, regulations or orders of any government or
agency thereof to which it is subject; do not constitute the violation or
breach of any agreement or understanding to which it is a party or by which it
is bound; and upon its execution and delivery, this Agreement shall be binding
and enforceable against it in accordance with its terms.
Section 39. The Transfer Agent may from time to time, with written consent of
the Fund, delegate some or all of its duties hereunder to others, who shall
perform such functions as the agent of the Transfer Agent. To the extent of
such delegation, the term "the Transfer Agent" in this Agreement shall be
deemed to refer to both the Transfer Agent and to its designee or to either of
them, as the context may indicate. In each provision of this Agreement fixing
or limiting the liabilities or the delegations of the Transfer Agent, or
providing for the liability indemnification or protection of the Transfer
agent, the term "the Transfer Agent" shall include the Transfer Agent's
designee. The Transfer Agent shall not be relieved of any liabilities or
obligation under the Agreement in connection with such delegation of duties,
shall be responsible to supervise and assure that any such designee properly
performs the duties delegated to it, and shall be responsible for the
performance of the designee as the Transfer Agent had, itself, performed the
duties so delegated.
Section 40. 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.
Section 41. 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 Fund without the written
consent of the Transfer Agent or by the Transfer Agent without the written
consent of the Fund, authorized or approved by a resolution of its Board of
Trustees.
Section 42. This Agreement constitutes the full and complete agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements or understandings between the parties.
Section 43. Whenever pronouns are used herein, they shall be interpreted in
the neuter, masculine, feminine, singular or plural as the context may
require.
Section 44. Except where specific time limits are herein provided, no delay on
the part of any party hereto in exercising any power or right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
power or right hereunder preclude other or further exercise thereof or the
exercise of any other power or right. No waiver shall be enforceable against
any party hereto unless in writing, signed by the party against whom such
waiver is claimed, and shall be limited solely to the one event.
Section 45. This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of California, without giving effect to
the principals of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and sealed by their officers thereunto duly authorized on the day
and year first above written.
ATTEST: BERKSHIRE CAPITAL INVESTMENT TRUST
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx III
By: ____________________________ By: _____________________________
Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx III,
Secretary President
ATTEST: BERKSHIRE CAPITAL HOLDINGS, INC.
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx III
By: ____________________________ By: _____________________________
Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx III,
Secretary Chairman & CEO
