EXHIBIT 99.H.3
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TRANSFER AGENCY SERVICE AGREEMENT
between
NEW RIVER FUNDS
and
[GRAPHIC OMITTED][GRAPHIC OMITTED]
GEMINI
FUND SERVICES, LLC
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INDEX
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SECTION 1. APPOINTMENTAND DELIVERY OF DOCUMENTS..............................3
SECTION 2. DUTIES OF GFS.....................................................4
SECTION 3. FEES AND EXPENSES.................................................9
SECTION 4. ISSUANCE AND TRANSFER OF SHARES..................................10
SECTION 5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS............11
SECTION 6. STANDARD OF CARE AND INDEMNIFICATION.............................11
SECTION 7. REPRESENTATIONS AND WARRANTIES...................................14
SECTION 8. CONFIDENTIALITY..................................................14
SECTION 9. PROPRIETARY INFORMATION..........................................15
SECTION 10. EFFECTIVE DATE, TERM, AND TERMINATION............................16
SECTION 11. ADDITIONAL FUNDS AND CLASSES.....................................17
SECTION 12. ASSIGNMENT.......................................................17
SECTION 13. DISASTER RECOVERY................................................17
SECTION 14. LIAISON WITH ACCOUNTANTS.........................................17
SECTION 15. SUBCONTRACTORS...................................................17
SECTION 16. MISCELLANEOUS....................................................18
SCHEDULE A - FUNDS TO BE SERVICED.............................................20
SCHEDULE B - FEES AND EXPENSES................................................21
SCHEDULE C - AML CUSTOMER IDENTIFICATION PROGRAM DELEGATION...................24
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NEW RIVER FUNDS
TRANSFER AGENCY SERVICE AGREEMENT
AGREEMENT made this _____ day of September, 2003, by and between New
River Funds, a Delaware statutory trust, having its principal office and place
of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the "Trust"), and
Gemini Fund Services, LLC., a Nebraska limited liability company having its
principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("GFS").
WHEREAS, the Trust is an open-end management investment company
registered with the United States Securities and Exchange Commission ("SEC")
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares ("Shares") in
separate series, with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust offers shares in the series as listed in Schedule
A hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 11, being herein referred to as a "Fund," and collectively as the
"Funds"); and
WHEREAS, the Trust desires that GFS perform certain transfer agency
and dividend disbursing services for each Fund and GFS is willing to provide
those services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, the Trust and GFS hereby agree as follows:
SECTION 1. APPOINTMENTAND DELIVERY OF DOCUMENTS.
(a) The Trust, on behalf of each Fund listed in Schedule A, hereby
appoints GFS as (i) transfer agent for the authorized and
issued Shares of the Funds, (ii) dividend disbursing agent,
and (iii) agent in connection with any accumulation,
open-account or similar plans provided to the registered
owners of shares of any of the Funds ("Shareholders") as set
out in the currently effective prospectuses and statements of
additional information of the applicable Fund, including,
without limitation, any periodic investment plan or periodic
withdrawal program. GFS accepts such appointment and agrees to
furnish the services herein set forth in return for the
compensation as provided in Section 3 of this Agreement.
(b) In connection therewith, the Trust has delivered to GFS copies
of:
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(i) the Agreement and Trust's Declaration of Trust and
By-laws (collectively, as amended from time to time,
"Organizational Documents");
(ii) the Trust's Registration Statement on Form N-1A and all
amendments thereto filed with the SEC pursuant to the
Securities Act of 1933, as amended (the "Securities
Act"), and the 1940 Act (the "Registration Statement");
(iii) the Trust's notification of registration under the 1940
Act on Form N-8A as filed with the SEC;
(iv) the Trust's current Prospectus and Statement of
Additional Information of each Fund (collectively, as
currently in effect and as amended or supplemented, the
"Prospectus);
(v) procedures adopted by the Trust in accordance with Rule
17a-7 with respect to affiliated transactions.
(c) The Trust shall promptly furnish GFS with all amendments of or
supplements to the foregoing and shall deliver to GFS a
certified copy of the resolution of the Board of Directors of
the Trust (the "Board") appointing GFS and authorizing the
execution and delivery of this Agreement.
SECTION 2. DUTIES OF GFS.
(a) TRANSFER AGENCY SERVICES. In accordance with procedures
established from time to time by agreement between the Trust
on behalf of each of the Funds, as applicable, and GFS, GFS
will perform the following services:
(i) provide the services of a transfer agent, dividend
disbursing agent and, as relevant, agent in connection
with accumulation, open-account or similar plans
(including without limitation any periodic investment
plan or periodic withdrawal program) that are customary
for open-end management investment companies including:
(A) maintaining all Shareholder accounts;
(B) preparing Shareholder meeting lists;
(C) preparing and certifying direct Shareholder lists
in conjunction with proxy solicitations;
(D) preparing periodic mailing of year-end tax and
statement information;
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(E) mailing Shareholder reports and prospectuses to
current Shareholders;
(F) withholding taxes on U.S. resident and
non-resident alien accounts;
(G) preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required by
federal authorities with respect to distributions
for Shareholders;
(H) preparing and mailing confirmation forms and
statements of account to Shareholders for all
purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts;
and
(I) providing account information in response to
inquiries from Shareholders.
(ii) receiving for acceptance, orders for the purchase of
Shares, and promptly delivering payment and appropriate
documentation therefore to the Custodian of the Fund
authorized by the Board of the Fund (the "Custodian");
or, in the case of a Fund operating in a master-feeder
or fund of funds structure, to the transfer agent or
interest-holder record keeper for the master portfolios
in which the Fund invests;
(iii) pursuant to purchase orders, issuing the appropriate
number of Shares and holding such Shares in the
appropriate Shareholder account;
(iv) receiving for acceptance redemption requests and
redemption directions and delivering the appropriate
documentation therefore to the Custodian or, in the
case of Fund operating in a master-feeder or fund of
funds structure, to the transfer agent or
interest-holder record keeper for the master portfolios
in which the Fund invests;
(v) as and when it receives monies paid to it by the
Custodian with respect to any redemption, paying over
or cause to be paid over the redemption proceeds as
required by the Prospectus pursuant to which the
redeemed Shares were offered and as instructed by the
redeeming Shareholders;
(vi) effecting transfers of Shares upon receipt of
appropriate instructions from Shareholders;
(vii) preparing and transmitting to Shareholders (or
crediting the appropriate Shareholder accounts)
payments for all distributions and dividends declared
by the Trust with respect to Shares;
(viii) receiving from Shareholders or debit Shareholder
accounts for sales commissions, including contingent
deferred, deferred and other sales charges, and service
fees (I.E., wire redemption charges) and prepare and
transmit payments to underwriters, selected dealers and
others for commissions and service fees received;
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(ix) recording the issuance of shares of the Fund and
maintaining pursuant to SEC Rule 17Ad-10(e) a record of
the total number of shares of the Fund which are
authorized, based upon data provided to it by the Fund,
issued and outstanding; and
(x) providing the Trust on a regular basis with the total
number of shares which are authorized and issued and
outstanding and shall have no obligation, when
recording the issuance of shares, to monitor the
issuance of such shares or to take cognizance of any
laws relating to the issue or sale of such shares,
which functions shall be the sole responsibility of the
Fund.
(b) OTHER SERVICES. In addition to, and neither in lieu nor in
contravention of the services set forth in the above
paragraph, GFS shall provide the following additional services
on behalf of the Trust and such other services agreed to in
writing by the Trust and GFS:
(i) monitoring and making appropriate filings with respect
to the escheatment laws of the various states and
territories of the United States.
(c) LOST SHAREHOLDERS. GFS shall perform such services as are
required in order to comply with Rules 17a-24 and 17Ad-17 (the
"Lost Shareholder Rules") of the Securities Exchange Act of
1934 ("1934 Act"), including, but not limited to, those set
forth below. GFS may, in its sole discretion, use the services
of a third party to perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to
comply with the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the
Lost Shareholder Rules.
(d) SAFEKEEPING. GFS shall establish and maintain facilities and
procedures reasonably acceptable to the Trust for the
safekeeping, control, preparation and use of share
certificates, check forms, and facsimile signature imprinting
devices. GFS shall also establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping
of all records maintained by GFS pursuant to this Agreement.
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(e) LOST, STOLEN OR MUTILATED CERTIFICATES. GFS shall place a stop
notice against any certificate reported to be lost or stolen
and comply with all applicable federal regulatory requirements
for reporting such loss or alleged misappropriation. GFS shall
issue share certificates and replacement share certificates
for those share certificates alleged to have been lost,
stolen, or destroyed upon receipt by GFS of indemnification
satisfactory to GFS and protecting GFS and the Trust and, at
the option of GFS, issue replacement certificates in place of
mutilated share certificates upon presentation thereof without
requiring indemnification.
(f) WITHDRAWAL OF SHARES AND CANCELLATION OF CERTIFICATES. Upon
receipt of written instructions from the Trust, GFS shall
cancel outstanding certificates surrendered by the Trust to
reduce the total amount of outstanding shares by the number of
shares surrendered by the Trust.
(g) RESPONSIBILITY FOR COMPLIANCE WITH LAW.
(i) IN GENERAL. Except with respect to GFS' duties as set
forth in this Section 2 and except as otherwise
specifically provided herein, the Trust assumes all
responsibility for ensuring that the Trust complies
with all applicable requirements of the Securities Act,
the 1940 Act and any laws, rules and regulations of
governmental authorities with jurisdiction over the
Trust. All references to any law in this Agreement
shall be deemed to include reference to the applicable
rules and regulations promulgated under authority of
the law and all official interpretations of such law or
rules or regulations.
(ii) ISSUANCE OF SHARES. The responsibility of GFS for the
Trust's state registration status is solely limited to
the reporting of transactions to the Trust, and GFS
shall have no obligation, when recording the issuance
of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or
sale of such Shares, which functions shall be the sole
responsibility of the Trust or its distributor or other
agent.
(h) NEW PROCEDURES. New procedures as to who shall provide certain
of these services in Section 2 may be established in writing
from time to time by agreement between the Trust and GFS. GFS
may at times perform only a portion of these services and the
Trust or its agent may perform these services on the Trust's
behalf.
(i) ANTI-MONEY LAUNDERING ("AML") DELEGATION. If the Trust elects
to delegate to GFS certain AML duties under this Agreement,
the parties will agree to such duties and terms as stated in
the attached schedule ("Schedule C entitled "AML Customer
Identification Program Delegation") which may be changed from
time to time subject to mutual written agreement between the
parties. In consideration of the performance of the duties by
GFS pursuant to Section 2(k), the Trust agrees to pay GFS for
the reasonable administrative expense that may be associated
with such additional duties in the amount as the parties may
from time to time agree in writing in accordance with Section
6 (Fees and Expenses) below.
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(j) NATIONAL SECURITIES CLEARING CORPORATION (THE "NSCC"). GFS
will: (i) process accounts through Networking and the
purchase, redemption, transfer and exchange of shares in such
accounts through Fund/SERV (Networking and Fund/SERV being
programs operated by the NSCC on behalf of NSCC's
participants, including the Trust), in accordance with,
instructions transmitted to and received by GFS by
transmission from NSCC on behalf of broker-dealers and banks
which have been established by, or in accordance with the
instructions of authorized persons, as hereinafter defined on
the dealer file maintained by GFS; (ii) issue instructions to
the Trust's bank for the settlement of transactions between
the Trust and NSCC (acting on behalf of its broker-dealer and
bank participants); (iii) provide account and transaction
information from the affected Trust's records on an
appropriate computer system in accordance with NSCC's
Networking and Fund/SERV rules for those broker-dealers; and
(iv) maintain Shareholder accounts through Networking.
(k) RECORD KEEPING. GFS shall keep records relating to the
services to be performed under this Agreement, in the form and
manner as it may deem advisable and as required by applicable
law. To the extent required by Section 31 of the 1940 Act, and
the rules thereunder, GFS agrees that all such records
prepared or maintained by GFS relating to the services to be
performed by GFS under this Agreement are the property of the
Trust and will be preserved, maintained and made available in
accordance with Section 31 of the 1940 Act and the rules
thereunder, and will be surrendered promptly to the Trust on
and in accordance with the Trust's request. The Trust and the
Trust's authorized representatives shall have access to GFS'
records relating to the services to be performed under this
Agreement at all times during GFS' normal business hours. Upon
the reasonable request of the Trust, copies of any such
records shall be provided promptly by GFS to the Trust or its
authorized representatives. GFS shall maintain the following
Shareholder account information:
(i) name, address and United States Tax Identification or
Social Security number;
(ii) number of Shares held and number of Shares for which
certificates, if any, have been issued, including
certificate numbers and denominations;
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(iii) historical information regarding the account of each
Shareholder, including dividends and distributions paid
and the date and price for all transactions on a
Shareholder's account;
(iv) any stop or restraining order placed against a
Shareholder's account;
(v) any correspondence relating to the current maintenance
of a Shareholder's account;
(vi) information with respect to withholdings; and
(vii) any information required in order for GFS to perform
any calculations by this Agreement.
SECTION 3. FEES AND EXPENSES.
(a) FEES. For the services provided by GFS pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to pay
GFS the fees, set forth in Schedule B attached hereto. Fees
will begin to accrue for each Fund on the latter of the date
of this Agreement or the date GFS begins providing services to
the Funds. For the purpose of determining fees calculated as a
function of the Trust's assets, the value of the Trust's
assets and net assets shall be computed as required by its
currently effective Prospectus, generally accepted accounting
principles, and resolutions of the Board. GFS will render,
after the close of each month in which services have been
furnished, a statement reflecting all of the charges for such
month; and GFS' fee shall not be subject to monthly pro
ration.
(b) EXPENSES. GFS will bear its own expenses, in connection with
the performance of the services under this Agreement, except
as provided herein or as agreed to by the parties. In addition
to the fees paid under subsection (a), the Trust agrees to
reimburse GFS for out-of-pocket expenses or advances incurred
by GFS for the items set out in Schedule B and any other
expenses incurred by GFS at the written request or with the
consent of the Trust. Generally, out-of-pocket expenses shall
be considered and approved in accordance with Expense Approval
Guidelines as mutually agreed upon by the parties hereto from
time to time.
(c) FEE CHANGES. The fees, out-of pocket expenses and advances
identified in subsections (a) and (b) above may be changed
from time to time subject to written agreement between the
Trust and GFS. For reports, analyses and services requested in
writing by the Trust and provided by GFS, not in the ordinary
course, GFS shall charge $150/hour for senior staff time,
$75/hour for junior staff time and $200/hour for computer
personnel time.
(d) DUE DATE. All fees under subsection (a) above are due and
payable within ten (10) days of receipt of invoice. All
expenses under subsection (b) above are due and payable within
fifteen (15) days of receipt of invoice.
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(e) DISPUTES. In the event of such a dispute, the trust may only
withhold that portion of the fee or expense subject to the
good faith dispute. The Trust shall notify GFS in writing
within twenty-one (21) calendar days following the receipt of
each billing notice if the Trust is disputing any amounts in
good faith. If the Trust does not provide such notice of
dispute within the required time, the billing notice will be
deemed accepted by the Trust. The Trust shall settle such
disputed amounts within five (5) days of the day on which the
parties agree on the amount to be paid by payment of the
agreed amount. If no agreement is reached, then such disputed
amounts shall be settled as may be required by law or legal
process. The Trust agrees that Interests, at a rate of
eighteen (18) percent per year, can be charged if invoices
remain outstanding greater than twenty (20) days.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES.
(a) ISSUANCE OF SHARES. GFS shall make original issues of Shares
of each Fund in accordance with the Prospectus only upon
receipt of:
(i) instructions requesting the issuance,
(ii) a certified copy of a resolution of the Board
authorizing the issuance,
(iii) necessary funds for the payment of any original issue
tax applicable to such Shares, and
(iv) an opinion of the Trust's counsel as to the legality
and validity of the issuance, which opinion may provide
that it is contingent upon the filing by the Trust of
an appropriate notice with the SEC, as required by
Section 24 of the 1940 Act or the rules thereunder. If
such opinion is contingent upon a filing under Section
24 of the 1940 Act, the Trust shall indemnify GFS for
any liability arising from the failure of the Trust to
comply with that section or the rules thereunder.
(b) TRANSFER OF SHARES. Transfers of Shares of each Fund shall be
registered on the Shareholder records maintained by GFS. In
registering transfers of Shares, GFS may rely upon the Uniform
Commercial Code as in effect in the State of Nebraska or any
other statutes that, in the opinion of GFS' counsel, protect
GFS and the Trust from liability arising from:
(i) not requiring complete documentation;
(ii) registering a transfer without an adverse claim
inquiry;
(iii) delaying registration for purposes of such inquiry; or
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(iv) refusing registration whenever an adverse claim
requires such refusal. As Transfer Agent, GFS will be
responsible for delivery to the transferor and
transferee of such documentation as is required by the
Uniform Commercial Code.
SECTION 5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS.
(a) PURCHASE ORDERS. Shares shall be issued in accordance with the
terms of the Prospectus after GFS or its agent receives
either:
(i) (A) an instruction directing investment in a Fund, (B)
a check (other than a third party check) or a wire or
other electronic payment in the amount designated in
the instruction and (C), in the case of an initial
purchase, a completed account application; or
(ii) the information required for purchases pursuant to a
selected dealer agreement, processing organization
agreement, or a similar contract with a financial
intermediary.
(b) DISTRIBUTION ELIGIBILITY. Shares issued in a Fund after
receipt of a completed purchase order shall be eligible to
receive distributions of the Fund at the time specified in the
prospectus pursuant to which the Shares are offered.
(c) DETERMINATION OF FEDERAL FUNDS. Shareholder payments shall be
considered Federal Funds no later than on the day indicated
below unless other times are noted in the Prospectus:
(i) for a wire received, at the time of the receipt of the
wire;
(ii) for a check drawn on a member bank of the Federal
Reserve System, on the second Fund Business Day
following receipt of the check; and
(iii) for a check drawn on an institution that is not a
member of the Federal Reserve System, at such time as
GFS is credited with Federal Funds with respect to that
check.
SECTION 6. STANDARD OF CARE AND INDEMNIFICATION.
(a) INDEMNIFICATION OF GFS. The Trust shall on behalf of each
applicable Fund indemnify and hold GFS harmless from and
against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability
arising out of or attributable to the Trust's refusal or
failure to comply with the terms of this Agreement, or which
arise out of the Trust's lack of good faith, gross negligence
or willful misconduct with respect to the Trust's performance
under or in connection with this Agreement. GFS shall not be
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responsible for and shall be entitled to rely upon and may act
upon information, records and reports generated by the Funds,
advice of the Funds, or of counsel for the Funds and upon
statements of the Funds' independent accountants, and shall be
without liability for any action reasonably taken or omitted
pursuant to such records and reports or advice, provided that
such action is not, to the knowledge of GFS, in violation of
applicable federal or state laws or regulations, and provided
further that such action is taken without gross negligence,
bad faith, willful misconduct or reckless disregard of its
duties, and the Trust shall hold GFS harmless in regard to any
liability incurred by reason of the inaccuracy of such
information or for any action reasonably taken or omitted in
good faith reliance on such information.
(b) INDEMNIFICATION OF THE TRUST. GFS shall indemnify and hold the
Trust and each applicable Fund harmless from and against any
and all losses, damages, costs, charges, reasonable counsel
fees, payments, expenses and liability arising out of or
attributable to GFS' refusal or failure to comply with the
terms of this Agreement, or which arise out of GFS' lack of
good faith, gross negligence or willful misconduct with
respect to GFS' performance under or in connection with this
Agreement.
(c) RELIANCE. At any time, GFS may apply to any officer of the
Trust for instructions, and may consult with legal counsel to
the Trust with respect to any matter arising in connection
with the services to be performed by GFS under this Agreement,
and GFS and its agents or subcontractors shall not be liable
and shall be indemnified by the Trust on behalf of the
applicable Fund for any action taken or omitted by it in
reasonable reliance upon such instructions or upon the advice
of such counsel. Additionally, and except to the extent that
GFS may be liable pursuant to 6(a) above, GFS shall not be
liable for any action taken or failure to act in good faith in
reliance upon:
(i) any paper or document furnished (pursuant to procedures
mutually agreed to by GFS and New River Advisers LLC,
manager of the Trust, or sub-advisers (collectively
referred to as the "Advisers")) by or on behalf of the
Trust, reasonably believed by GFS to be genuine and to
have been signed by the proper person or persons;
(ii) any instruction, information, data, records or
documents provided to GFS or its agents or
subcontractors furnished (pursuant to procedures
mutually agreed to by GFS and the Advisers) by machine
readable input, telex, CRT data entry or other similar
means authorized by the Trust; and
(iii) any authorization, instruction, approval, item or set
of data, or information of any kind transmitted to GFS
in person or by telephone, vocal telegram or other
electronic means, furnished and reasonably believed by
GFS to be genuine and to have been given by the proper
person or persons. GFS shall not be held to have notice
of any change of authority of any person, until receipt
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of written notice thereof from the Trust. GFS, its
agents and subcontractors shall also be protected and
indemnified in recognizing share certificates which are
reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Trust, and
the proper countersignature of any former transfer
agent or former registrar or of a co-transfer agent or
co-registrar of the Trust.
(d) RELIANCE ON ELECTRONIC INSTRUCTIONS. If the Trust has the
ability to originate electronic instructions to GFS in order
to (i) effect the transfer or movement of cash or Shares or
(ii) transmit Shareholder information or other information,
then in such event GFS shall be entitled to rely on the
validity and authenticity of such instruction without
undertaking any further inquiry as long as such instruction is
undertaken in conformity with security procedures established
and agreed upon by GFS and the Advisers.
(e) ERRORS OF OTHERS. GFS shall not be liable for the errors of
other service providers to the Trust, including the errors of
pricing services (other than to pursue all reasonable claims
against the pricing service based on the pricing services'
standard contracts entered into by GFS) and errors in
information provided by an investment adviser (including
prices and pricing formulas and the untimely transmission of
trade information) or custodian to the Trust; except or unless
any GFS action or inaction by GFS is a direct or proximate
cause of the error.
(f) USE OF FUND/SERV AND NETWORKING. The Trust has authorized or
in the future may authorize GFS to act as a "Mutual Fund
Services Member" for the Trust or various Funds. Fund/SERV and
Networking as used herein have the meanings as set forth in
the then current edition of NSCC RULES AND PROCEDURES
published by NSCC or such other similar publication as may
exist from time to time.
(g) NOTIFICATION OF CLAIMS. In order that the indemnification
provisions contained in this Section shall apply, upon the
assertion of a claim for which either party may be required to
indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall
keep the other party advised with respect to all developments
concerning such claim. The party who may be required to
indemnify shall have the option to participate with the party
seeking indemnification in the defense of such claim or to
defend against said claim in its own name or in the name of
the other party. 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.
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SECTION 7. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS OF GFS. GFS represents and warrants to the
Trust that:
(i) it is a corporation duly organized and existing and in
good standing under the laws of the State of Nebraska;
(ii) it is empowered under applicable laws and by its
Articles of Incorporation and Bylaws to enter into this
Agreement and perform its duties under this Agreement;
(iii) it has access to the necessary facilities, equipment,
and personnel to perform its duties and obligations
under this Agreement; and
(iv) it is registered as a transfer agent under Section 17A
of the Securities Exchange Act of 1934 and shall
continue to be registered throughout the remainder of
this Agreement.
(b) REPRESENTATIONS OF THE TRUST. The Fund represents and warrants
to GFS that:
(i) it is a Trust duly organized and existing and in good
standing under the laws of the State of Delaware;
(ii) it is empowered under applicable laws and by its
Organizational Documents to enter into and perform this
Agreement;
(iii) all proceedings required by said Organizational
Documents have been taken to authorize it to enter into
and perform this Agreement;
(iv) it is an open-end management investment company
registered under the 1940 Act; and a registration
statement under the Securities Act of 1933 will be
effective prior to the Fund publicly offering shares
and will remain effective, and appropriate state
securities law filings as required, have been or will
be made and will continue to be made, with respect to
all Shares of the Fund being offered for sale.
SECTION 8. CONFIDENTIALITY.
GFS and the Trust agree that all books, records, information, and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except that GFS may:
(a) prepare or assist in the preparation of periodic reports to
Shareholders and regulatory bodies such as the SEC;
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(b) provide information typically supplied in the investment
company industry to companies that track or report price,
performance or other information regarding investment
companies;
(c) release such other information as approved in writing by the
Trust, which approval shall not be unreasonably withheld and
may not be withheld where GFS may be exposed to civil or
criminal liability or proceedings for failure to release the
information, when requested to divulge such information by
duly constituted authorities or when so requested by the Trust
and the Advisers; and
(d) In accordance with Section 248.1 of Regulation S-P (17 CFR
248.1 - 248.30) ("Reg S-P"), GFS will not directly, or
indirectly through an affiliate, disclose any non-public
personal information as defined in Reg S-P, received from the
Fund to any person that is not affiliated with the Fund or
with GFS and provided that any such information disclosed to
an affiliate of GFS shall be under the same limitations on
non-disclosure.
SECTION 9. PROPRIETARY INFORMATION.
(a) PROPRIETARY INFORMATION OF GFS. The Trust acknowledges that
the databases, computer programs, screen formats, report
formats, interactive design techniques, and documentation
manuals maintained by GFS on databases under the control and
ownership of GFS or a third party constitute copyrighted,
trade secret, or other proprietary information (collectively,
"Proprietary Information") of substantial value to GFS or the
third party. The Trust agrees to treat all Proprietary
Information as proprietary to GFS and further agrees that it
shall not divulge any Proprietary Information to any person or
organization except as may be provided under this Agreement.
(b) PROPRIETARY INFORMATION OF THE TRUST. GFS acknowledges that
the Shareholder list and all information related to
Shareholders furnished to GFS by the Trust or by a Shareholder
in connection with this Agreement (collectively, "Customer
Data") constitute proprietary information of substantial value
to the Trust. In no event shall Proprietary Information be
deemed Customer Data. GFS agrees to treat all Customer Data as
proprietary to the Trust and further agrees that it shall not
divulge any Customer Data to any person or organization except
as may be provided under this Agreement or as maybe directed
by the Trust or as maybe duly requested by regulatory
authorities.
(c) Each party shall take reasonable efforts to advise its
employees of their obligations pursuant to this Section 9. The
obligations of this Section shall survive any earlier
termination of this Agreement.
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SECTION 10. EFFECTIVE DATE, TERM, AND TERMINATION.
(a) EFFECTIVE DATE. This Agreement shall become effective on the
date first above written.
(b) TERM. This Agreement shall remain in effect for a period of
two (2) years from the date of its effectiveness, unless
terminated according to Section 10(c) below, and shall
continue in effect for successive twelve-month periods;
provided that such continuance is specifically approved at
least annually by the members of the Board.
(c) TERMINATION. This Agreement can be terminated upon ninety (90)
days prior written notice by either party. Compensation due
GFS and unpaid by the Trust upon such termination shall be due
on the date of termination or after the date that the
provision of services ceases, whichever is later. In the event
of termination, GFS agrees that it will cooperate in the
smooth transition of services and to minimize disruption to
the Trusts and its Shareholders, including liaison with the
Trusts accountants.
(d) REIMBURSEMENT OF GFS' EXPENSES. If this Agreement is
terminated with respect to a Fund or Funds, GFS shall be
entitled to collect from the Fund or Funds, in addition to the
compensation described under Section 3 hereof, the amount of
all of GFS's reasonable labor charges and cash disbursements
for services in connection with GFS's activities in effecting
such termination, including without limitation, the labor
costs and expenses associated with the de-conversion of the
Trusts records of each Fund from its computer systems, and the
delivery to the Trust and/or its designees of the Trust's
property, records, instruments and documents, or any copies
thereof. The agreed upon amount for such de-conversion is set
forth on Schedule B. Subsequent to such termination, for a
reasonable fee, GFS will provide the Trust with reasonable
access to all Trust documents or records, if any, remaining in
its possession. In the event that GFS gives notice of
termination, all reasonable expenses associated with movement
(or duplication) of records and materials and conversion
thereof to a successor transfer agent(s) (and any other
service provider(s)), and all reasonable trailing expenses
incurred by GFS, will be borne by GFS.
(e) SURVIVAL OF CERTAIN OBLIGATIONS. The obligations of Sections
3, 6, 8, 9, 10 and 14 shall survive any termination of this
Agreement.
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SECTION 11. ADDITIONAL FUNDS AND CLASSES.
If the Trust establishes one or more series of Shares or one or more
classes of Shares after the effectiveness of this Agreement, such series of
Shares or classes of Shares, as the case may be, shall become Funds and classes
under this Agreement; provided, however, that either GFS or the Trust may elect
not to make any such series or classes subject to this Agreement.
SECTION 12. ASSIGNMENT
This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Trust without the prior written consent
of GFS.GFS may subcontract any or all of its responsibilities pursuant to this
Agreement to one or more corporations, trusts, firms, individuals or
associations, which may or may not be affiliated persons of GFS and which agree
to comply with the terms of this Agreement; provided, however, that any such
subcontracting shall not relieve GFS of its responsibilities hereunder. GFS may
pay those persons for their services, but no such payment shall increase GFS'
compensation from the Trust.
SECTION 13. DISASTER RECOVERY
GFS shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provisions for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available.
SECTION 14. LIAISON WITH ACCOUNTANTS
GFS shall act as liaison with the Trust's independent public
accountants and shall provide account analyses, fiscal year summaries, and other
audit-related schedules with respect to each Fund. GFS shall take all reasonable
action in the performance of its duties under this Agreement to assure that the
necessary information is made available to such accountants for the expression
of their opinion, as required by the Fund.
SECTION 15. SUBCONTRACTORS.
GFS may, without further consent on the part of the Trust,
subcontract for the performance hereof with any entity, including affiliated
persons of GFS; provided however, that GFS shall have previously identified the
subcontractor to the Trust and the Trust shall not have objected to the
delegation and that GFS shall be as fully responsible to the Trust for the acts
and omissions of any subcontractor as GFS is for its own acts and omissions.
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SECTION 16. MISCELLANEOUS.
(a) AMENDMENTS. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly
authorized and executed by both parties hereto.
(b) GOVERNING LAW. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with
the laws of the Commonwealth of Virginia.
(c) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior
agreement with respect to the subject matter hereof whether
oral or written.
(d) COUNTERPARTS. The parties may execute this Agreement on any
number of counterparts, and all of the counterparts taken
together shall be deemed to constitute one and the same
instrument.
(e) SEVERABILITY. If any part, term or provision of this Agreement
is held to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations
of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
(f) FORCE MAJEURE. In the event either party is unable to perform
its obligations under the terms of this Agreement because of
acts of God, strikes, equipment or transmission failure or
damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable
for damages to the other party resulting from such failure to
perform or otherwise from such causes.
(g) ARBITRATION. Any controversy or claim arising out of, or
related to, this Agreement, its termination or the breach
thereof, shall be settled by binding arbitration by three
arbitrators (or by fewer arbitrator(s), if the parties
subsequently agree to fewer) in the City of New York or the
Commonwealth of Virginia, in accordance with the rules then
obtaining of the American Arbitration Association, and the
arbitrators' decision shall be binding and final, and judgment
upon the award rendered may be entered in any court having
jurisdiction thereof. The party initiating the action shall
determine the situs of the matter in New York or Virginia.
(h) HEADINGS. Section and paragraph headings in this Agreement are
included for convenience only and are not to be used to
construe or interpret this Agreement.
(i) NOTICES. All notices and other communications hereunder shall
be in writing, shall be deemed to have been given when
received or when sent by telex or facsimile, and shall be
given to the following addresses (or such other addresses as
to which notice is given):
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TO THE TRUST: TO GFS:
Doit ▇. ▇▇▇▇▇▇▇ ▇▇ Gemini Fund Services, LLC.
Chairman ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ Funds ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
(j) DISTINCTION OF FUNDS. Notwithstanding any other provision of
this Agreement, the parties agree that the assets and
liabilities of each Fund of the Trust are separate and
distinct from the assets and liabilities of each other Fund
and that no Fund shall be liable or shall be charged for any
debt, obligation or liability of any other Fund, whether
arising under this Agreement or otherwise.
(k) REPRESENTATION OF SIGNATORIES. Each of the undersigned
expressly warrants and represents that they have full power
and authority to sign this Agreement on behalf of the party
indicated and that their signature will bind the party
indicated to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized persons, as of the day and year first above written.
NEW RIVER FUNDS GEMINI FUND SERVICES, LLC
By: ______________________________ By: _____________________________
Doit ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman President
Date:_______________________ Date:_____________________
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NEW RIVER FUNDS
TRANSFER AGENCY SERVICE AGREEMENT
SCHEDULE A - FUNDS TO BE SERVICED
New River Core Equity Fund
New River Small Cap Fund
New River Core Fixed Income Fund
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NEW RIVER FUNDS
TRANSFER AGENCY SERVICE AGREEMENT
SCHEDULE B - FEES AND EXPENSES
Page 1 of 3
For the services rendered by GFS, in its capacity as transfer agent, the Trust
shall pay GFS the following transfer agent fees, out-of-pocket expenses,
activity charges, and special reports charges, which shall be billed to the
Trust monthly:
I. TRANSFER AGENT FEES
1. DATA CONVERSION FEE FROM PREVIOUS TRANSFER AGENT: N/A
2. SERVICE FEE:
EQUITY AND BOND FUNDS
$14.00 annual fee per open account and $2.00 annual fee per
closed account with a minimum of $15,000 annually per
fund/class PLUS out-of-pocket expenses
MONTHLY CALCULATION: THE GREATER OF THE MONTHLY MINIMUM FEE
OR THE NUMBER OF SHAREHOLDER ACCOUNTS MULTIPLIED BY $14.00
FOR OPEN ACCOUNTS OR $2.00 FOR CLOSED ACCOUNTS ($1,250 PER
MONTH PER FUND/CLASS FOR THE MONTHLY MINIMUM).
THE TRUST SHALL REIMBURSE GFS FOR ALL OUT-OF-POCKET EXPENSES,
INCLUDING, BUT NOT LIMITED TO THE FOLLOWING:
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1) Telephone and Toll Free Lines
2) Printing Fund Documents
3) Bank Fees
4) NSCC Charges
5) Postage
6) Pre and Post Sale Fulfillment
7) Proxy Services
8) Travel Requested by the Trust
9) Tax Reporting
10) Record Storage
11) Fund Stationary and Supplies
12) All other out -of -pocket expenses incurred on behalf of the Trust
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NEW RIVER FUNDS
TRANSFER AGENCY SERVICE AGREEMENT
SCHEDULE B - FEES AND EXPENSES
Page 2 of 3
3. DATA DE-CONVERSION FEE:
A ONE-TIME DATA DE-CONVERSION FEE OF $10,000 SHALL BE CHARGED UPON A
CANCELLATION OR TERMINATION OF THIS AGREEMENT BY THE TRUST FOR ANY REASON OTHER
THAN LIQUIDATION OF THE FUNDS. NO FEE SHALL BE PAYABLE UPON A CANCELLATION OR
TERMINATION BY GFS.
II. ACTIVITY CHARGES
1. GENERAL ACTIVITY CHARGES: 1) 24 Hour Automated Voice Response:
a) Initial set-up (one-time) charge: $750.00 per fund
b) Monthly charge: $ 50.00 per fund
2) Customer Service Calls: $ 2.50 per call
3) Manual Transactions: $ 1.00 per
transaction
4) New Account Opening: (manual) $ 2.50
per account
5) New Account Opening: (electronic) $ 0.40
per account
6) Incoming ▇▇▇ Transfer from prior custodian: $25.00
7) ▇▇▇ Transfer to successor custodian: $25.00
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NEW RIVER FUNDS
TRANSFER AGENCY SERVICE AGREEMENT
SCHEDULE B - FEES AND EXPENSES
Page 3 of 3
2. INTERNET ACCESS:
Each Shareholder/adviser/broker hit billed at $0.25 per hit, not to exceed $500
in any month.
Initial fund group setup charges will be based on the number of hours multiplied
by the hourly charges indicated below under Special Reports Charges.
3. ISSUANCE OF SHARE CERTIFICATES:
For each share certificate issued by GFS, a $15.00 charge will be assessed to
the Fund for which the certificate was issued.
4. ▇▇▇ PLAN FEES:
The following fees will be charged directly to the Shareholder account:
Annual maintenance fee ........................................$15.00 /account *
* Includes an $8.00 Bank Custody Fee.
III. SPECIAL REPORTS CHARGES
All special reports and/or analyses requested by the Trust, shall be subject to
an additional charge, agreed upon in advance, based upon the following rates:
GFS Senior staff.........$150.00/hr.
GFS Junior staff ........$ 75.00/hr.
MIS staff................$ 200.00/hr.
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NEW RIVER FUNDS
TRANSFER AGENCY SERVICE AGREEMENT
SCHEDULE C - AML CUSTOMER IDENTIFICATION PROGRAM DELEGATION
In recognition of the importance of complying with the USA Patriot Act of 2001
and the regulations promulgated thereunder (collectively, the "Patriot Act"),
which imposes new anti-money laundering requirements on financial institutions
including mutual funds, the Trust has developed and implemented a written
anti-money laundering program, ("Program"), designed to satisfy the requirements
of the Patriot Act.
The Trust, in recognition of the fact that the Patriot Act enables a mutual fund
to delegate to its transfer agent the implementation and operation of aspects of
its anti-money laundering program, pursuant to Section 2(k), delegates to GFS
the implementation and operation of certain aspects of the Trust's program.
1. DUTIES. The Trust delegates to GFS the implementation and operation of their
Customer Identification Program, ("CIP"), designed to identify and verify
persons seeking to open an account with the Trust, to the extent reasonable and
practicable. GFS will maintain records of the information used to verify the
person's identity and determine whether the person appears on any lists of known
or suspected terrorist or terrorist organizations provided to the Trust by any
government agency. Duties include:
a. Prior to opening a customer account or granting customers
authority to effect transactions with respect to an account, GFS
shall obtain and record, on behalf of the Trust, the following
identifying information about each customer, at a minimum including:
i. Name;
ii. Date of birth, for a natural person; iii. Addresses,
including
1. residence or business street address or an Army Post
Office or Fleet Post Office box number or residential
or business street address of next of kin or other
contact individual; or
2. principal place of business local office or other
physical location, for a person other than a natural
person; and iv. Identification numbers: 1. A taxpayer
identification number from each customer that is a US
person; or 2. A taxpayer identification number,
passport number and country of issuance, alien
identification card number, or number and country of
issuance of any other government-issued document
evidencing nationality or residence and bearing a
photograph or similar safeguard from each customer that
is not a US person, except that the customer can
provide this information within a reasonable period of
time after the account is established provided that the
customer has applied for and can provide a copy of such
application for the employer identification number
prior to such time.
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b. GFS must verify all the above stated forms of customer
identification within a reasonable time after the account is opened.
Verification can occur through:
i. Documentation including:
i. Unexpired government-issued identification, such as a
driver's license or passport for individuals; and
ii. Documents showing the existence of an entity, such as
certified articles of incorporation, a
government-issued business license, a partnership
agreement, or trust instrument for a person that is not
an individual.
ii. When documentary verification fails for reasons including
but not limited to, GFS not being familiar with the
documents presented, no documentation is obtained by GFS, or
the customer does not open the account in person, GFS may
then verify customer identity via non-documentary methods
including:
i. Directly contacting the customer;
ii. Independent verification of the customer's identity
through comparison of information provided by customer
with information obtained from a consumer reporting
agency, public database, or other source;
iii. Checking references with other financial institutions;
and
iv. Obtaining a financial statement.
iii. When GFS cannot verify the identity of a customer, who is
not an individual, by documentary or non-documentary methods
stated above, GFS shall obtain information about individuals
with authority or control over such account, such as persons
authorized to effect transactions in the Shareholder or
record's account.
c. GFS must maintain records of all information obtained from
customers to verify their identity, including at a minimum:
a. All customer identification documentations obtained under
paragraph 1(a). Such information must be retained by GFS for
five (5) years after the date the account is closed;
b. A description of any documentary method used to verify
identification, as set out in paragraph b(i) above. GFS must
note the type of documents, any identification number in the
document, place of issuance and date of issuance. Such
information must be retained by GFS for five (5) years after
the record is made;
c. A description of the non-documentary methods, as set out in
paragraph b(ii) above, and results of the measures GFS took
to verify the identity of the customer. Such information
must be retained by GFS for five (5) years after the record
is made; and
d. A description of how GFS resolved any substantive
discrepancy it discovered when verifying the customer
identification information it received. Such information
must be retained by GFS for five (5) years after the record
is made.
d. Within a reasonable time after GFS opens a customer account, and
preferably prior to opening the account, GFS must make a
determination as to whether the customer appears on any list of known
or suspected terrorists or terrorist organizations as issued by any
federal government agency and designated as such by the Department of
the Treasury. GFS should make the determination by cross-checking
customer names with such lists.
-25-
e. Trust must post a notice on its website and its account
applications in an effort to give customers notice, prior to opening
the account, that GFS, for the Trust, is requesting information to
verify the customer's identity. The notice must generally describe
the identification requirements.
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