TRANSFER AGENT SERVICING AGREEMENT
THIS
TRANSFER AGENT SERVICING AGREEMENT is made and entered into this ___ day
of
_______________, 2006, by and between ALESCO
GLOBAL ADVISERS LLC, a
California limited liability company (“AGA”) and U.S.
BANCORP FUND SERVICES, LLC,
a
Wisconsin limited liability company (“USBFS”).
WHEREAS,
Marketocracy Funds, a Delaware statutory trust (the “Trust”) is registered under
the Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company, and is authorized to issue shares of beneficial
interest in separate series, with each such series representing interests
in a
separate portfolio of securities and other assets;
WHEREAS,
AGA has been retained by the Trust to act as the administrator for, and is
obligated to provide certain administrative services to, each series of the
Trust that is listed on Exhibit
A
hereto
(as amended from time to time) (each the “Fund”);
WHEREAS,
USBFS is, among other things, in the business of administering transfer and
dividend disbursing agent functions for the benefit of its customers;
and
WHEREAS,
AGA, AS THE Fund’s administrator, desires to retain USBFS to provide transfer
and dividend disbursing agent services in respect of the Fund.
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
| 1. |
Appointment
of USBFS as Transfer Agent
|
AGA
hereby appoints USBFS as transfer agent in respect of the Fund, including
without limitation each class thereof, on the terms and conditions set forth
in
this Agreement, and USBFS hereby accepts such appointment and agrees to perform
the services and duties set forth in this Agreement. The services and duties
of
USBFS shall be confined to those matters expressly set forth herein, and
no
implied duties are assumed by or may be asserted against USBFS
hereunder.
| 2. |
Services
and Duties of USBFS
|
USBFS
shall provide the following transfer agent and dividend disbursing agent
services in respect of the Fund, including without limitation each class
thereof:
| A. |
Receive
and process all orders for the purchase, exchange, and/or redemption
of
shares in accordance with Rule 22c-1 under the 1940
Act.
|
| B. |
Process
purchase orders with prompt delivery, where appropriate, of payment
and
supporting documentation to the Fund’s custodian, and issue the
appropriate number of uncertificated shares with such uncertificated
shares being held in the appropriate shareholder
account.
|
| C. |
Arrange
for the issuance of shares obtained through transfers of funds from
Fund
shareholders’ accounts at financial institutions and arrange for the
exchange of shares for shares of other eligible investment companies,
when
permitted by the Fund’s prospectus and statement of additional information
(collectively, the “Prospectus”).
|
| D. |
Process
redemption requests received in good order and, where relevant, deliver
appropriate documentation to the Fund's
custodian.
|
| E. |
Pay
monies upon receipt from the Fund's custodian, where relevant, in
accordance with the instructions of redeeming
shareholders.
|
| F. |
Process
transfers of shares in accordance with the shareholder's instructions,
after receipt of appropriate documentation from the shareholder as
specified in the Prospectus.
|
| G. |
Process
exchanges between Funds and/or classes of shares of Funds both within
the
same family of funds, if applicable.
|
| H. |
Prepare
and transmit payments for dividends and distributions declared by
the
Board of Trustees with respect to the Fund, after deducting any amount
required to be withheld by any applicable laws, rules and regulations
and
in accordance with shareholder
instructions.
|
| I. |
Serve
as the Fund’s agent in connection with accumulation, open account or
similar plans (e.g.,
periodic investment plans and periodic withdrawal
plans).
|
| J. |
Make
changes to shareholder records, including, but not limited to, address
changes in plans (e.g.,
systematic withdrawal, automatic investment, dividend
reinvestment).
|
| K. |
Handle
load and multi-class processing, including without limitation rights
of
accumulation and purchases by letters of
intent.
|
| L. |
Record
the issuance of shares of the Fund and maintain, pursuant to Rule
17Ad-10(e) promulgated under the Securities Exchange Act of 1934,
as
amended (the "Exchange Act"), a record of the total number of shares
of
the Fund that are authorized, issued and
outstanding.
|
| M. |
Prepare
shareholder meeting lists and, as necessary, mail, receive and tabulate
proxies.
|
| N. |
Mail
shareholder reports and Prospectuses to current
shareholders.
|
2
| O. |
Prepare
and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions
for all shareholders.
|
| P. |
Provide
shareholder account information upon request and prepare and mail
confirmations and statements of account to shareholders for all purchases,
redemptions and other confirmable transactions as agreed upon with
the
Trust.
|
| Q. |
Mail
requests for shareholders’ certifications under penalties of perjury and
pay on a timely basis to the appropriate federal authorities any
taxes to
be withheld on dividends and distributions paid by the Fund, all
as
required by applicable federal tax laws and
regulations.
|
| R. |
Provide
a Blue Sky system that will enable AGA, the Fund and the Trust to
monitor
the total number of shares of the Fund sold in each state; provided
that
the Trust, not USBFS, is responsible hereunder for ensuring that
shares
are not sold in violation of any requirement under the securities
laws or
regulations of any state.
|
| S. |
Answer
correspondence from shareholders, securities brokers and others relating
to USBFS’s duties hereunder and such other correspondence as may from time
to time be mutually agreed upon between USBFS and
AGA.
|
| T. |
Reimburse
the Fund each month for all material losses resulting from “as of”
processing errors for which USBFS is responsible in accordance with
the
“as of” processing guidelines set forth on Exhibit
B
hereto.
|
| 3. |
Lost
Shareholder Due Diligence Searches and
Servicing
|
AGA
hereby acknowledges that USBFS has an arrangement with an outside vendor
to
conduct lost shareholder searches in respect of the Fund required by Rule
17Ad-17 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). Costs associated with such searches will be passed through to AGA as an
out-of-pocket expense in accordance with the fee schedule set forth in
Exhibit
C
hereto.
If a shareholder remains lost and the shareholder’s account unresolved after
completion of the mandatory Rule 17Ad-17 search, AGA hereby authorizes vendor
to
enter, at its discretion, into fee sharing arrangements with the lost
shareholder (or such lost shareholder’s representative or executor) to conduct a
more in-depth search in order to locate the lost shareholder before the
shareholder’s assets escheat to the applicable state. AGA hereby acknowledges
that USBFS is not a party to these arrangements and does not receive any
revenue
sharing or other fees relating to these arrangements. Furthermore, AGA hereby
acknowledges that vendor may receive up to thirty five percent (35%) of the
lost
shareholder’s assets as compensation for its efforts in locating the lost
shareholder.
3
| 4. |
Anti-Money
Laundering Program
|
AGA
acknowledges that AGA, the Fund and the Trust have had an opportunity to
review,
consider and comment upon the written procedures provided by USBFS describing
various tools used by USBFS that USBFS designed to promote the detection
and
reporting of potential money laundering activity by monitoring certain aspects
of shareholder activity as well as written procedures for verifying a customer’s
identity (collectively, the “Procedures”). Further, AGA acknowledges that AGA,
the Fund and the Trust have determined that the Procedures, as part of the
Fund’s and the Trust’s overall anti-money laundering program, are reasonably
designed to prevent the Fund or the Trust from being used for money laundering
or the financing of terrorist activities and to achieve compliance with the
applicable provisions of the USA Patriot Act of 2002 and the implementing
regulations thereunder.
Based
on
this determination, AGA hereby instructs and directs USBFS to implement the
Procedures in respect of the Fund and the Trust, as such may be amended or
revised from time to time. The parties contemplate that these Procedures
will be
amended from time to time by the parties as additional regulations are adopted
and/or regulatory guidance is provided relating to the Fund’s and the Trust’s
anti-money laundering responsibilities.
USBFS
agrees to provide to AGA, the Fund and the Trust:
| (1) |
Prompt
written notification of any transaction or combination of transactions
that USBFS believes, based on the Procedures, evidence money laundering
activity in connection with the Fund or any shareholder of the
Fund;
|
| (2) |
Prompt
written notification of any customer(s) that USBFS reasonably believes,
based upon the Procedures, to be engaged in money laundering activity;
provided, however, that AGA shall not identify USBFS as the source
this
information to the shareholder of the Fund suspected of money laundering
activity without reasonable prior written notice to USBFS and unless
permitted by applicable laws;
|
| (3) |
Any
reports received by USBFS from any government agency or applicable
industry self-regulatory organization pertaining to USBFS’s anti-money
laundering monitoring in respect of the Fund or the
Trust;
|
| (4) |
Prompt
written notification of any action taken in response to anti-money
laundering violations as described in clauses (1), (2) or (3) above;
and
|
| (5) |
Certified
annual and quarterly reports of its monitoring and customer identification
activities in respect of the Fund and the
Trust.
|
AGA
hereby directs, and USBFS acknowledges, that USBFS shall (i) permit federal
regulators having competent jurisdiction access to such information and records
maintained by USBFS and relating to USBFS’s implementation of the Procedures, on
behalf of the Fund, as they may request, and (ii) permit such federal regulators
to inspect USBFS’s implementation of the Procedures on behalf of the
Fund.
4
| 5. |
Compensation
|
AGA
shall
compensate USBFS for providing the services set forth in this Agreement in
accordance with the fee schedule set forth on Exhibit
C
hereto
(as amended from time to time). AGA also shall reimburse USBFS for such
out-of-pocket expenses (e.g.,
telecommunication charges, postage and delivery charges, and reproduction
charges) as are reasonably incurred by USBFS in performing its duties hereunder.
AGA shall pay all such fees and reimbursable expenses within thirty (30)
calendar days following receipt of the billing notice, except for any fee
or
expense subject to a good faith dispute. AGA shall notify USBFS in writing
within thirty (30) calendar days following receipt of each invoice if AGA
is
disputing any amounts in good faith. AGA shall pay such disputed amounts
within
ten (10) calendar days of the day on which the parties agree as to the amount
to
be paid. With the exception of any fee or expense AGA is disputing in good
faith
as set forth above, unpaid invoices shall accrue a finance charge at a rate
that
is the lower of (i) one and one half percent (1½%) per month, or (ii) the
maximum rate permitted by applicable law, after the due date. Notwithstanding
any other provision of this Agreement to the contrary, amounts owed by AGA
to
USBFS hereunder are not the liabilities or obligations, and shall not be
paid
out of the assets and property, of the Fund or the Trust.
| 6. |
Representations
and Warranties
|
| A. |
AGA
hereby represents and warrants to USBFS, which representations and
warranties shall be deemed to be continuing throughout the term of
this
Agreement applicable to the Fund, that:
|
|
(1)
|
Each
of AGA and the Trust is duly organized and existing under the laws
of the
States of California and Delaware, respectively, with full power
to carry
on its business as now conducted and to have AGA enter into this
Agreement
and to perform AGA’s obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by AGA
in
accordance with all requisite action and constitutes the valid
and legally
binding obligation of AGA, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties;
|
|
(3)
|
Each
of AGA, the Fund and the Trust is conducting its business in compliance
in
all material respects with all applicable laws and regulations,
both state
and federal, and has obtained all regulatory approvals necessary
to carry
on its business as now conducted; there is no statute, rule, regulation,
order or judgment binding on either AGA, the Fund or the Trust
and no
provision of its charter, bylaws or any contract binding it or
affecting
its property that would prohibit AGA’s execution or performance of this
Agreement; and
|
5
|
(4)
|
A
registration statement under the 1940 Act and the Securities Act
of 1933,
as amended (the “Securities Act”), will be made effective in respect of
the Fund prior to the effective date of this Agreement and will
remain
effective during the term of this Agreement, and appropriate state
securities law filings will be made prior to the effective date
of this
Agreement and will continue to be made during the term of this
Agreement
as necessary to enable the Fund to make a continuous public offering
of
its shares.
|
| B. |
USBFS
hereby represents and warrants to AGA and the Trust, which representations
and warranties shall be deemed to be continuing throughout the term
of
this Agreement, that:
|
|
(1)
|
USBFS
is duly organized and existing under the laws of the State of Wisconsin,
with full power to carry on its business as now conducted, to enter
into
this Agreement and to perform its obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by USBFS
in
accordance with all requisite manger, member and officer actions
and
constitutes the valid and legally binding obligation of USBFS,
enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting
the rights and remedies of creditors and secured
parties;
|
|
(3)
|
USBFS
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as
now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding USBFS or affecting its property that would prohibit its
execution
or performance of this Agreement; and
|
|
(4)
|
USBFS
is a registered transfer agent under the Exchange
Act.
|
|
(5)
|
USBFS
has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this
Agreement; and
|
|
(6)
|
USBFS
will comply with all applicable requirements of the Securities
Act, as
amended, and the Exchange Act, the 1940 Act, and any laws, rules,
and
regulations of governmental authorities having
jurisdiction
|
6
| 7. |
Standard
of Care; Indemnification; Limitation of
Liability
|
| A. |
USBFS
shall exercise reasonable care in the performance of its duties under
this
Agreement. USBFS shall not be liable for any error of judgment or
mistake
of law or for any loss suffered by AGA, the Fund or the Trust in
connection with its duties under this Agreement, including without
limitation losses resulting from mechanical breakdowns or the failure
of
communication or power supplies beyond USBFS’s reasonable control, except
a loss arising out of or relating to USBFS’s refusal or failure to comply
with the terms of this Agreement or from its bad faith, negligence,
or
willful misconduct in the performance of its duties under this Agreement.
Notwithstanding any other provision of this Agreement, if USBFS has
exercised reasonable care in the performance of its duties under
this
Agreement, AGA
(but not the Fund or the
Trust) shall indemnify and hold harmless USBFS from and against any
and
all claims, demands, losses, expenses, and liabilities of any and
every
nature (including without limitation reasonable attorneys' fees)
that
USBFS may sustain or incur or that may be asserted against USBFS
by any
person arising out of any action taken or omitted to be taken by
USFBS in
performing the services hereunder (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral instruction
provided to USBFS by any duly authorized officer or employee or AGA
or an
officer of the Trust (other than an officer that also is an employee
of
USBFS or an affiliate of USBFS), each such person as approved by
the Board
of Trustees of the Trust (the “Board of Trustees”), except for any and all
claims, demands, losses, expenses, and liabilities arising out of
or
relating to USBFS’s refusal or failure to comply with the terms of this
Agreement or from its bad faith, negligence or willful misconduct
in the
performance of its duties under this Agreement. As used in this paragraph,
the term “USBFS” shall include USBFS’s managers, members, officers and
employees. Notwithstanding
anything to the contrary, amounts owed by AGA to USBFS pursuant to
this
Section 7.A are not the liabilities or obligations, and shall not
be paid
out of the assets and property, of the Fund or the
Trust.
|
USBFS
shall indemnify and hold each of AGA, the Fund and the Trust harmless from
and
against any and all claims, demands, losses, expenses, and liabilities of
any
and every nature (including without limitation reasonable attorneys' fees)
that
AGA, the Fund or the Trust may sustain or incur or that may be asserted against
AGA, the Fund or the Trust by any person arising out of any action taken
or
omitted to be taken by USBFS as a result of USBFS’s refusal or failure to comply
with the terms of this Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement. As used
in
this paragraph, the terms “AGA and “Trust” shall include AGA’s and the Trust’s
respective trustees, directors, officers, managers, members and
employees.
Notwithstanding
any other provision of this Agreement, neither party to this Agreement shall
be
liable to the other party for consequential, special or punitive damages
under
any provision of this Agreement.
7
In
the
event of a mechanical breakdown or failure of communication or power supplies
beyond its reasonable control (each a “service interruption”), USBFS shall take
all reasonable steps to minimize such service interruption for any period
that
such service interruption continues. At the expense of USBFS, USBFS shall
make
every reasonable effort to restore any lost or damaged data and correct any
errors resulting from such a service interruption. USBFS agrees that it shall,
at all times, have reasonable contingency plans with appropriate parties,
making
reasonable provision for emergency use of substitute electrical data processing
equipment as provided in such contingency plans. Representatives of AGA,
the
Fund or the Trust shall be entitled to inspect USBFS’s premises and operating
capabilities at any time during regular business hours of USBFS, upon reasonable
notice to USBFS. Moreover, USBFS shall provide AGA, the Fund and the Trust,
at
such times as AGA, the Fund or the Trust may reasonably require, copies of
reports rendered by independent public accountants on the internal controls
and
procedures of USBFS relating to the services provided by USBFS under this
Agreement.
Notwithstanding
the provisions of Section 7.A above, USBFS reserves the right to reprocess
and
correct administrative errors at its own expense.
| B. |
In
order that the indemnification provisions contained in this section
shall
apply, if in any case the indemnitor may be asked to indemnify or
hold the
indemnitee harmless, the indemnitor shall be fully and promptly advised
of
all pertinent facts concerning the situation in question, and the
indemnitee shall use all reasonable care to notify the indemnitor
promptly
concerning any situation that presents or appears likely to present
the
probability of a claim for indemnification. The indemnitor shall
have the
option to defend the indemnitee against any claim that may be the
subject
of this indemnification. In the event that the indemnitor so elects,
it
shall so notify the indemnitee and thereupon the indemnitor shall
take
over complete defense of the claim, and the indemnitee shall in such
situation initiate no further legal or other expenses for which it
shall
seek indemnification under this Section 7. The indemnitee shall in
no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with
the
indemnitor’s prior written consent.
|
| C. |
The
indemnity and defense provisions set forth in this Section 7 shall
indefinitely survive the termination and/or assignment of this
Agreement.
|
| D. |
If
USBFS is acting in another capacity for the Trust pursuant to a separate
agreement, nothing herein shall be deemed to relieve USBFS of any
of its
obligations in such other capacity.
|
8
| 8. |
Data
Necessary to Perform Services
|
AGA,
the
Fund, the Trust or its agent shall furnish to USBFS the data necessary to
perform the services described herein at such times and in such form as mutually
agreed upon.
| 9. |
Proprietary
and Confidential Information
|
|
A.
|
USBFS
agrees, on behalf of itself and its managers, members, officers,
and
employees, to treat confidentially and as proprietary the respective
information of AGA, the Fund and the Trust, all records and other
information relative to AGA, the Fund and the Trust and prior,
present, or
potential shareholders of the Fund or the Trust (and clients of
said
shareholders) (“Confidential Information”), and not to disclose to third
parties or use such Confidential Information for any purpose other
than
the performance of its responsibilities and duties hereunder, except
that
USBFS may disclose Confidential Information to the extent (i) after
prior
notification to, and approval in writing by, AGA, the Fund or the
Trust,
as the case may be, or (ii) when required to divulge such information
by
duly constituted governmental or judicial authorities having competent
jurisdiction over USBFS and if failure of USBFS to comply would
subject
USBFS to civil or criminal contempt proceedings; provided, however,
that
prior to any such disclosure by USBFS, to the extent not legally
prohibited from so doing, USBFS provides AGA, the Fund and the
Trust with
reasonably prompt notice of such request so that AGA, the Fund
or the
Trust may have an opportunity to take appropriate action before
such
governmental or judicial authority to prevent such disclosure,
or (iii)
when so requested by AGA, the Fund or the Trust in writing.
|
|
B.
|
Records
and other information that are Confidential Information but that
(i) have
become known to the public through no breach of any obligation
of
confidentiality or other wrongful act of USBFS or any of its managers,
members, officers, employees, agents or representatives, and (ii)
information that was already in the possession of USBFS prior to
receipt
thereof from AGA, the Fund or the Trust or its respective agent,
whether
or not pursuant to this Agreement, shall not be subject to Section
9.A
hereof, but in each case only to the extent that AGA, the Fund
or the
Trust are not subject to obligations under (i) AGA, the Fund, or
the
Trust’s confidentiality policies or procedures, (ii) agreements with
third
parties, or (iii) applicable laws, rules or regulations, to keep
confidential, and restrict the use of, such Confidential
Information.
|
|
C.
|
Notwithstanding
any other provision of this Section 9, USBFS shall adhere to the
privacy
policies adopted by the Trust pursuant to Title V of the
Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time.
|
|
D.
|
At
all times that USBFS or any of its affiliates has Confidential
Information
in its possession or under its control, USBFS shall have in place
and
maintain physical, electronic and procedural safeguards reasonably
designed to protect the security, confidentiality and integrity
of, and to
prevent unauthorized access to or use of, Confidential
Information.
|
9
| 10. |
Records
|
USBFS
shall keep records relating to the services to be performed hereunder in
the
form and manner, and for such period, as it may deem advisable and is agreeable
to AGA, but not inconsistent
with the
rules and regulations of appropriate government authorities, in particular,
Section 31 of the 1940 Act and the rules thereunder. USBFS agrees that all
such
records prepared or maintained by USBFS relating to the services to be performed
by USBFS hereunder are the property of the Trust and will be preserved,
maintained, and made available to appropriate regulatory authorities in
accordance with such applicable sections and rules of the 1940 Act and will
be
promptly surrendered to the Trust or its designee
(including without limitation AGA)
on and
in accordance with its request.
| 11. |
Compliance
with Laws
|
AGA
acknowledges and agrees that the Trust has and retains primary responsibility
for all compliance matters relating to the Fund, including but not limited
to
compliance with the 1940 Act, the Internal Revenue Code of 1986, the
Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2002 and the policies
and
limitations of the Fund relating to its portfolio investments as set forth
in
its Prospectus and statement of additional information. USBFS’s services
hereunder shall not relieve the Trust of its responsibilities for assuring
such
compliance or the Board of Trustee’s oversight responsibility with respect
thereto.
| 12. |
Term
of Agreement; Amendment
|
This
Agreement shall become effective as of the date first written above and will
continue in effect for a period of three (3) years. Subsequent to the initial
three-year term, this Agreement may be terminated by either party upon giving
ninety (90) days prior written notice to the other party or such shorter
period
as is mutually agreed upon by the parties. Notwithstanding the foregoing,
this
Agreement may be terminated by any party upon the breach of the other party
of
any material term of this Agreement if such breach is not cured within fifteen
(15) days of notice of such breach to the breaching party. This Agreement
may
not be amended or modified in any manner except by written agreement executed
by
USBFS and AGA, and authorized or approved by the Board of Trustees.
| 13. |
Duties
in the Event of Termination
|
In
the
event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by AGA, the Fund or the Trust
by
written notice to USBFS, USBFS, upon such termination and at the expense
of AGA,
promptly shall transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by USBFS under this
Agreement in a form reasonably acceptable to AGA, the Fund and the Trust
(if
such form differs from the form in which USBFS has maintained the same, AGA
shall pay any reasonable expenses associated with transferring the data to
such
form), and shall cooperate in the transfer of such duties and responsibilities,
including provision for assistance from USBFS’s personnel in the establishment
of books, records, and other data by such successor. If no such successor
is
designated, then such books, records and other data shall be returned to
the
Trust or its designee (including without limitation AGA).
10
| 14. |
Assignment
|
This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement
shall
not be assignable by AGA without the written consent of USBFS, or by USBFS
without the written consent of AGA, and authorized or approved by the Board
of
Trustees.
| 15. |
Governing
Law
|
This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To the extent that
the
applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with
the
1940 Act or any rule or order of the Securities and Exchange Commission
thereunder.
| 16. |
No
Agency Relationship
|
Nothing
herein contained shall be deemed to authorize or empower either party to
act as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
| 17. |
Services
Not Exclusive
|
Nothing
in this Agreement shall limit or restrict USBFS from providing services to
other
parties that are similar or identical to some or all of the services provided
hereunder.
| 18. |
Invalidity
|
Any
provision of this Agreement that may be determined by competent authority
to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent
with
the original intent of the parties for purposes solely for such jurisdiction
and
only to the extent necessary to avoid such prohibition or unenforceability,
and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
11
| 19. |
Notices
|
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three
(3) days
after sent by registered or certified mail, postage prepaid, return receipt
requested, or on the date sent and confirmed received by facsimile transmission
to the other party’s address set forth below:
Notice
to
USBFS shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
and
notice to AGA shall be sent to:
Alesco
Global Advisors LLC
000
X. Xx
Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attention:
Chief Executive Officer
with
a
copy to the Fund and the Trust sent to:
0000
Xxxx
Xxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attention
President
| 20. |
Multiple
Originals
|
This
Agreement may be executed on two or more counterparts, each of which when
so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
|
ALESCO
GLOBAL ADVISORS LLC
|
U.S.
BANCORP FUND SERVICES, LLC
|
|
By:
______________________________
|
By:
______________________________
|
|
Name:
Xxx X. Xxxxx
|
Name:
Xxx X. Xxxxxxx
|
|
Title:
Chief Executive Officer
|
Title:
President
|
12
Exhibit
A
to
the
Transfer
Agent Servicing Agreement - Alesco Global Advisors LLC
Separate
Series of Marketocracy Funds
Name
of Series
Date
Added
AGA
Total
Return Realty
Fund
Effective
on or
about [_________ __, 2006]
Class
A
Shares
Class
K
Shares
A-1
Exhibit
B
to
the
Transfer
Agent Servicing Agreement
- Alesco Global Advisors LLC
As
Of Processing Policy
USBFS
will reimburse AGA in respect of the Fund for any Net Material Loss that
may
exist on the Fund’s books and for which USBFS is responsible, at the end of each
calendar month. “Net Material Loss” shall be defined as any remaining loss,
after netting losses against any gains that impacts a Fund’s net asset value per
share by more than ½ cent. Gains and losses will be reflected on the Fund’s
daily share sheet, and AGA will be reimbursed in respect of the Fund for
any net
material loss on a monthly basis. USBFS will reset the as of ledger each
calendar month so that any losses that do not exceed the materiality threshold
of ½ cent will not be carried forward to the next succeeding month. USBFS will
notify AGA on the daily share sheet of any losses for which AGA, as the
investment adviser or administrator of the Fund, may be held
accountable.
B-1
