MUTUAL FUND SERVICES AGREEMENT
THIS AGREEMENT is made as of this 1st day of May, 2008, by and between
Stralem Fund (referred to herein as the "Trust"), a business trust organized
under the laws of the State of Delaware, with its principal office and place of
business at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, and
Ultimus Fund Solutions, LLC ("Ultimus"), a limited liability company organized
under the laws of the State of Ohio and having its principal place of business
at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000.
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires that Ultimus provide certain mutual fund
services for each series of the Trust, listed in Schedule A hereto and made part
of this Agreement, as such Schedule A may be amended from time to time
(individually referred to herein as a "Portfolio" and, collectively, as the
"Portfolios"); and
WHEREAS, Ultimus is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF ULTIMUS.
The Trust hereby retains Ultimus to act as the administrator, fund
accountant and transfer agent and to furnish it with the services as set forth
below. Ultimus hereby accepts such employment to perform such duties.
2. ADMINISTRATION SERVICES.
Ultimus shall provide the Trust with regulatory reporting services; shall
provide all necessary office space, equipment, personnel, compensation and
facilities for handling the affairs of the Trust; and shall provide such other
services as the Trust may request that Ultimus perform consistent with its
obligations under this Agreement. Without limiting the generality of the
foregoing, Ultimus shall:
(a) calculate each Portfolio's expenses and administer all disbursements
for each Portfolio, and as appropriate, compute a Portfolio's
yields, total return, expense ratios and portfolio turnover rate;
(b) prepare and coordinate, in consultation with Trust counsel, the
preparation of prospectuses, statements of additional information,
registration statements and proxy materials;
(c) prepare such reports, notice filing forms and other documents
(including reports regarding the sale and redemption of shares of a
Portfolio as may be required in order to comply with federal and
state securities law) as may be necessary or desirable to make
notice filings relating to a Portfolio's shares with state
securities authorities, monitor the sale of Portfolio shares for
compliance with
state securities laws, and file with the appropriate state
securities authorities the compliance filings as may be necessary or
convenient to enable a Portfolio to make a continuous offering of
its shares;
(d) develop and prepare, with the assistance of the Trust's investment
adviser, communications to shareholders, including the annual report
to shareholders, coordinate the mailing of prospectuses, notices,
proxy statements, proxies and other reports to Trust shareholders,
and supervise and facilitate the proxy solicitation process for all
shareholder meetings, including the tabulation of shareholder votes;
(e) calculate performance data of each Portfolio for dissemination to
information services covering the investment company industry;
(f) prepare and file all tax returns of each Portfolio and prepare and
mail annual Forms 1099 and Forms 5498 to shareholders, with a copy
to the Internal Revenue Service;
(g) manage the layout and printing of prospectuses and supplements
thereto, and manage and coordinate layout and printing of each
Portfolio's semi-annual and annual reports to shareholders;
(h) provide individuals reasonably acceptable to the Trust's trustees to
serve as officers of the Trust, if so elected by the Board of
Trustees, who will be responsible for the administration of certain
of the Trust's affairs as determined by the Trustees;
(i) obtain and keep in effect on behalf of the Trust, and make all
necessary filings regarding, fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust in
accordance with the requirements of the 1940 Act and as such bonds
and policies are approved by the Trustees;
(j) monitor and advise the Trust and its Portfolios on their registered
investment company status under the Internal Revenue Code of 1986;
(k) monitor the Trust and its Portfolios' compliance with applicable
limitations as imposed by the 1940 Act and the rules and regulations
thereunder or set forth in the Trust's or any Portfolio's then
current Prospectus or Statement of Additional Information;
(l) coordinate meetings and prepare, in consultation with Trust counsel,
materials for the quarterly and special meetings of the Trustees and
meetings of the Trust's shareholders;
(m) cooperate with, and take all reasonable actions in the performance
of its duties under this Agreement to ensure that all necessary
information is made available to the Trust's independent public
accountants in connection with the preparation of any audit or
report requested by the Trust;
2
(n) cooperate with, and take all reasonable actions in the performance
of its duties under this Agreement to ensure that the necessary
information is made available to the Securities and Exchange
Commission (the "SEC") or any other regulatory authority in
connection with any regulatory audit of the Trust or the investment
adviser of the Trust;
(o) perform all administrative services and functions of the Trust to
the extent administrative services and functions are not provided to
the Trust by other service providers of the Trust;
(p) prepare and file with the SEC: (i) the semi-annual reports for the
Trust on Form N-SAR and N-CSR; (ii) Form N-Q; (iii) Form N-PX; and
(iv) all required notices pursuant to Rule 24f-2 under the 1940 Act;
and
3. FUND ACCOUNTING SERVICES
Ultimus will provide the Trust with the fund accounting services as set
forth below:
(a) MAINTENANCE OF BOOKS AND RECORDS.
Ultimus shall maintain and keep current the accounts, books, records and
other documents relating to the Trust's financial and portfolio
transactions as may be required by the rules and regulations of the SEC
adopted under Section 31(a) of the 1940 Act. Ultimus shall cause the
subject records of the Trust to be maintained and preserved pursuant to
the requirements of the 1940 Act.
(b) PERFORMANCE OF DAILY ACCOUNTING SERVICES.
In addition to the maintenance of the books and records specified above,
Ultimus shall perform the following accounting services daily for each
Portfolio:
(i) Calculate the net asset value per share utilizing prices
obtained from the sources described in subsection 1(b)(ii)
below;
(ii) Obtain security prices from independent pricing services, or
if such quotes are unavailable, then obtain such prices from
each Portfolio's investment adviser or its designee, as
approved by the Trust's Board of Trustees;
(iii) Verify and reconcile with the Portfolios' custodian all daily
trade activity;
(iv) Compute, as appropriate, each Portfolio's net income and
capital gains, dividend payables, dividend factors, yields,
and weighted average portfolio maturity;
(v) Review daily the net asset value calculation and dividend
factor (if any) for each Portfolio prior to release to
shareholders, check and confirm the net asset values and
dividend factors for reasonableness and deviations, and
distribute net asset values and yields to NASDAQ;
(vi) Determine unrealized appreciation and depreciation on
securities held by the Portfolios;
3
(vii) Amortize premiums and accrete discounts on securities
purchased at a price other than face value, if requested by
the Trust;
(viii)Update fund accounting system to reflect rate changes, as
received from a Portfolio's investment adviser, on variable
interest rate instruments;
(ix) Post Portfolio transactions to appropriate categories;
(x) Accrue expenses of each Portfolio;
(xi) Determine the outstanding receivables and payables for all (1)
security trades, (2) Portfolio share transactions and (3)
income and expense accounts;
(xii) Provide accounting reports in connection with the Trust's
regular annual audit and other audits and examinations by
regulatory agencies; and
(xiii)Provide such periodic reports, as the parties shall agree
upon.
(c) SPECIAL REPORTS AND SERVICES.
(i) Ultimus may provide additional special reports upon the
request of the Trust or a Portfolio's investment adviser,
which may result in an additional charge, the amount of which
shall be agreed upon between the parties.
(ii) Ultimus may provide such other similar services with respect
to a Portfolio as may be reasonably requested by the Trust,
which may result in an additional charge, the amount of which
shall be agreed upon between the parties.
(iii) Ultimus will provide an Anti-Money Laundering Officer who
shall furnish the Board with AML reports on a periodic basis.
(d) ADDITIONAL ACCOUNTING SERVICES.
Ultimus shall also perform the following additional accounting services
for each Portfolio:
(i) Provide monthly (or as frequently as may reasonably be
requested by the Trust or a Portfolio's investment adviser) a
set of financial statements for each Portfolio as described
below, upon request of the Trust:
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Security Purchases and Sales Journals
Portfolio Holdings Reports
4
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise
tax returns;
(B) the Trust's semi-annual reports with the SEC on Form
N-SAR;
(C) the Trust's annual, and semi-annual shareholder reports;
(D) registration statements on Form N-1A and other filings
relating to the registration of shares;
(E) Ultimus' monitoring of each Portfolio's status as a
regulated investment company under Subchapter M of the
Internal Revenue Code, as amended;
(F) annual audit by the Trust's auditors; and
(G) examinations performed by the SEC.
4. TRANSFER AGENT AND SHAREHOLDER SERVICES
Ultimus will provide the Trust with the transfer agent and shareholder
services as set forth below:
(a) Shareholder Transactions
------------------------
(i) Process shareholder purchase and redemption orders in
accordance with conditions set forth in the Trust's
prospectus.
(ii) Set up account information, including address, dividend
option, taxpayer identification numbers and wire instructions.
(iii) Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended (the "1934 Act").
(iv) Issue periodic statements for shareholders.
(v) Process transfers and exchanges.
(vi) Provide the ability to access Fund/SERV and Networking through
National Securities Clearing Corporation.
(vii) Act as service agent and process dividend payments, including
the purchase of new shares, through dividend reimbursement.
(viii)Record the issuance of shares and maintain pursuant to SEC
Rule 17Ad-10(e) of the 1934 Act a record of the total number
of shares of each Portfolio which are authorized, based upon
data provided to it by the Portfolio, and issued and
outstanding.
(ix) Perform such services as required to comply with Rules 17a-24
and 17Ad-17 of the 1934 Act (the "Lost Shareholder Rules").
(x) Administer and/or perform all other customary services of a
transfer agent.
5
(b) Shareholder Information Services
--------------------------------
(i) Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
(ii) Produce detailed history of transactions through duplicate or
special order statements upon request.
(iii) Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to
current shareholders.
(iv) Respond as appropriate to all inquiries and communications
from shareholders relating to shareholder accounts.
(c) Compliance Reporting
--------------------
(i) Provide reports to the SEC and the states in which the
Portfolios are registered.
(ii) Prepare and distribute appropriate Internal Revenue Service
forms for shareholder income and capital gains.
(iii) Issue tax withholding reports to the Internal Revenue Service.
(d) Dealer/Load Processing (if applicable)
--------------------------------------
(i) Provide reports for tracking rights of accumulation and
purchases made under a Letter of Intent.
(ii) Account for separation of shareholder investments from
transaction sale charges for purchase of Portfolio shares.
(iii) Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
(iv) Track sales and commission statistics by dealer and provide
for payment of commissions on direct shareholder purchases in
a load Portfolio.
(e) Shareholder Account Maintenance
-------------------------------
(i) Maintain all shareholder records for each account in each
Portfolio.
(ii) Issue customer statements on scheduled cycle, providing
duplicate second and third party copies if required.
(iii) Record shareholder account information changes.
(iv) Maintain account documentation files for each shareholder.
6
Ultimus shall perform such other services for the Trust that are mutually
agreed upon by the parties from time to time either at no additional fees or for
such reasonable and customary fees as are mutually agreed upon by the parties;
provided, however that the Trust may retain third parties to perform such other
services. Such services may include performing internal audit examination;
mailing the annual reports of the Portfolios; preparing an annual list of
shareholders; and mailing notices of shareholders' meetings, proxies and proxy
statements, for all of which the Trust will pay Ultimus' out-of-pocket expenses.
5. SUBCONTRACTING.
Ultimus may, at its expense and, upon written notice and consent from the
Trust, subcontract with any entity or person concerning the provision of the
services contemplated hereunder; provided, however, that Ultimus shall not be
relieved of any of its obligations under this Agreement by the appointment of
such subcontractor and provided further, that Ultimus shall be responsible, to
the extent provided in Section 11 hereof, for all acts of such subcontractor as
if such acts were its own.
6. ALLOCATION OF CHARGES AND EXPENSES.
Ultimus shall furnish at its own expense the executive, supervisory and
clerical personnel necessary to perform its obligations under this Agreement.
Ultimus shall also pay all compensation, if any, of officers of the Trust who
are affiliated persons of Ultimus.
The Trust assumes and shall pay or cause to be paid all other expenses of
the Trust not otherwise allocated herein, including, without limitation,
organization costs, taxes, expenses for legal and auditing services, the
expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing shareholders, all expenses incurred in connection with
issuing and redeeming shares, the costs of custodial services, the cost of
initial and ongoing registration and/or qualification of the shares under
federal and state securities laws, fees and out-of-pocket expenses of Trustees
who are not affiliated persons of Ultimus or the investment adviser to the
Trust, insurance premiums, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Trust.
7. COMPENSATION OF ULTIMUS.
For the services to be rendered, the facilities furnished and the expenses
assumed by Ultimus pursuant to this Agreement, the Trust shall pay to Ultimus
compensation for Administration and Accounting services in accordance to the fee
schedule set forth in Schedule B. For the Transfer Agent and Shareholder
Services provided by Ultimus pursuant to this Agreement, Ultimus is compensated
in accordance to the fee schedule set forth in Schedule C.
Each Schedule is attached hereto and, such Schedules may be amended from
time to time by mutual, written agreement of the parties. Such compensation
shall be calculated and accrued daily, and paid to Ultimus monthly.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, Ultimus' compensation for that
part of the month in which this Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above. Payment
of Ultimus' compensation for the preceding month shall be made promptly.
7
8. REIMBURSEMENT OF EXPENSES
In addition to paying Ultimus the fees described in Schedules B and C
attached hereto, the Trust agrees to reimburse Ultimus for its reasonable
out-of-pocket expenses in providing services hereunder, including without
limitation the following:
(a) Reasonable travel and lodging expenses incurred by officers and
employees of Ultimus in connection with attendance at shareholders'
meetings;
(b) All freight and other delivery and bonding charges incurred by
Ultimus in delivering materials to and from the Trust;
(c) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by Ultimus in
communication with the Trust, the Trust's investment adviser or
custodian, dealers or others as required for Ultimus to perform the
services to be provided hereunder;
(d) The cost of obtaining security market quotes;
(e) The cost of microfilm, microfiche or other methods of storing
records or other materials;
(f) The cost of printing and generating confirmations, statements and
other documents and the cost of mailing such documents to
shareholders and others;
(g) All expenses incurred in connection with any custom programming or
systems modifications required to provide any special reports or
services requested by the Trust and not contemplated by this
Agreement; and
(h) Any expenses Ultimus shall incur for services provided at the
written direction of an officer of the Trust thereunto duly
authorized other than an employee or other affiliated person of
Ultimus who may otherwise be named as an authorized representative
of the Trust for certain purposes that are not otherwise
contemplated or provide for under this Agreement.
9. EFFECTIVE DATE.
This Agreement shall become effective with respect to a Portfolio as of
the date first written above (or, if a particular Portfolio is not in existence
on that date, on the date such Portfolio commences operation) (the "Effective
Date").
10. TERM OF THIS AGREEMENT.
This Agreement shall continue in effect, unless earlier terminated by
either party hereto as provided hereunder, for a period of two years.
Thereafter, unless otherwise terminated as provided herein, this Agreement shall
be renewed automatically for successive one-year periods.
This Agreement may be terminated without penalty: (i) by provision of
sixty (60) days' written notice by either party; (ii) by mutual agreement of the
parties; or (iii) for "cause" (as defined herein) upon the provision of thirty
(30) days' advance written notice by the party alleging cause.
8
For purposes of this Agreement, "cause" shall mean: (i) a material breach
of this Agreement that has not been remedied within thirty (30) days following
written notice of such breach from the non-breaching party, (ii) a series of
negligent acts or omissions or breaches of this Agreement which, in the
aggregate, constitute in the reasonable judgment of the Trust, a serious failure
by Ultimus to satisfactorily perform its obligations hereunder; (iii) a final,
unappealable judicial, regulatory or administrative ruling or order in which the
party to be terminated has been found guilty of criminal or unethical behavior
in the conduct of its business; or (iv) financial difficulties on the part of
the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or the modification or alteration of the rights of
creditors.
Notwithstanding the foregoing, after such termination for so long as
Ultimus, with the written consent of the Trust, in fact continues to perform any
one or more of the services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Compensation due Ultimus and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding such termination.
Unless termination is by notice given by Ultimus or "for cause" where the Trust
is the alleging party, Ultimus shall be entitled to collect from the Trust, in
addition to the compensation described in Schedules B and C, the amount of all
of Ultimus' cash disbursements for services in connection with Ultimus'
activities in effecting such termination, including without limitation, the
delivery to the Trust and/or its designees of the Trust's property, records,
instruments and documents.
11. STANDARD OF CARE.
The duties of Ultimus shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against Ultimus
hereunder. Ultimus shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith in performing the
services provided for under this Agreement. Ultimus shall be liable for any
damages arising directly or indirectly out of Ultimus' failure to perform its
duties under this Agreement to the extent such damages arise directly or
indirectly out of Ultimus' willful misfeasance, bad faith, negligence in the
performance of its duties, or reckless disregard of it obligations and duties
hereunder. (As used in this Section 11, the term "Ultimus" shall include
directors, officers, employees and other agents of Ultimus as well as Ultimus
itself.)
Without limiting the generality of the foregoing or any other provision of
this Agreement, (i) Ultimus shall not be liable for losses beyond its reasonable
control, provided that Ultimus has acted in accordance with the standard of care
set forth above and has taken reasonably appropriate actions to mitigate such
losses; and (ii) Ultimus shall not be liable for the validity or invalidity or
authority or lack thereof of any instruction, notice or other instrument that
Ultimus reasonably believes to be genuine and to have been signed or presented
by a duly authorized representative of the Trust (other than an employee or
other affiliated persons of Ultimus who may otherwise be named as an authorized
representative of the Trust for certain purposes).
Ultimus may apply to the Trust at any time for instructions and may
consult with counsel for the Trust or its own counsel and with accountants and
other experts with respect to any matter arising in connection with Ultimus'
duties hereunder, and Ultimus shall not be liable or
9
accountable for any action taken or omitted by it in good faith in accordance
with such instruction or with the reasonable written opinion of such counsel,
accountants or other experts qualified to render such opinion.
12. INDEMNIFICATION.
The Trust agrees to indemnify and hold harmless Ultimus from and against
any and all actions, suits, claims, losses, damages, costs, charges, reasonable
counsel fees and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) (collectively, "Losses") arising directly or
indirectly out of any action or omission to act which Ultimus takes (i) at any
request or on the direction of or in reliance on the reasonable advice of the
Trust, (ii) upon any instruction, notice or other instrument that Ultimus
reasonably believes to be genuine and to have been signed or presented by a duly
authorized representative of the Trust (other than an employee or other
affiliated person of Ultimus who may otherwise be named as an authorized
representative of the Trust for certain purposes) or (iii) on its own
initiative, in good faith and in accordance with the standard of care set forth
herein, in connection with the performance of its duties or obligations
hereunder; provided, however that the Trust shall have no obligation to
indemnify or reimburse Ultimus under this Section 12 to the extent that Ultimus
is entitled to reimbursement or indemnification for such Losses under any
liability insurance policy described in this Agreement or otherwise.
Ultimus shall not be indemnified against or held harmless from any Losses
arising directly or indirectly out of Ultimus' own willful misfeasance, bad
faith, negligence in the performance of its duties, or reckless disregard of its
obligations and duties hereunder. (As used in this Section 12, the term
"Ultimus" shall include directors, officers, employees and other agents of
Ultimus as well as Ultimus itself.)
Ultimus shall indemnify and hold the Trust harmless from and against all
claims, losses, demands, expenses and liabilities of any and every nature
(including reasonable attorney's fees) that the Trust may sustain or incur or
that may be asserted against the Trust by any person arising out of any action
taken or omitted to be taken by Ultimus as a result of Ultimus' refusal or
failure to comply with the terms of this Agreement, its bad faith, negligence or
willful misfeasance.
13. RECORD RETENTION AND CONFIDENTIALITY.
Ultimus shall keep and maintain on behalf of the Trust all books and
records which the Trust and Ultimus are, or may be, required to keep and
maintain pursuant to any applicable statutes, rules and regulations, including
without limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the
maintenance of books and records in connection with the services to be provided
hereunder. Ultimus further agrees that all such books and records shall be the
property of the Trust and to make such books and records available for review
and inspection by the Trust or by the SEC at reasonable times and otherwise to
keep confidential all books and records and other information relative to the
Trust and its shareholders; except when requested to divulge such information by
duly-constituted authorities or court process. Ultimus agrees that upon
reasonable request by the Trust, it will provide the Trust with copies of any
books and records that the Trust may require to complete its annual compliance
review.
10
14. FORCE MAJEURE.
Ultimus assumes no responsibility hereunder, and shall not be liable, for
any damage, loss of data, delay or any other loss whatsoever caused by events
beyond its reasonable control, including acts of civil or military authority,
national emergencies, fire, flood, catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply,
provided however, that Ultimus shall have policies, procedures and systems in
place intended to mitigate losses and damages to the Trust should such events
occur and, should such events occur, Ultimus shall take reasonably appropriate
actions at its expense, to mitigate such losses or damages.
15. RIGHTS OF OWNERSHIP; RETURN OF RECORDS.
All Proprietary Information as defined in the Confidentiality Agreement
between the Trust and Ultimus are the exclusive property of the Trust and all
such records and data will be returned to the Trust in appropriate form within
five (5) days of receipt of a written request from the Trust. Ultimus may at its
option at any time, and shall promptly upon the Trust's demand, turn over to the
Trust and cease to retain Ultimus' files, records and documents created and
maintained by Ultimus pursuant to this Agreement which are no longer needed by
Ultimus in the performance of its services or for its legal protection. If not
so turned over to the Trust, such documents and records will be retained by
Ultimus for six years from the year of creation. At the end of such six-year
period, such records and documents will be turned over to the Trust unless the
Trust authorizes in writing the destruction of such records and documents.
16. REPRESENTATIONS OF THE TRUST.
The Trust certifies to Ultimus that: (1) as of the close of business on
the Effective Date, each Portfolio that is in existence as of the Effective Date
has authorized shares, and (2) this Agreement has been duly authorized by the
Trust and, when executed and delivered by the Trust, will constitute a legal,
valid and binding obligation of the Trust, enforceable against the Trust 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.
17. REPRESENTATIONS OF ULTIMUS.
Ultimus represents and warrants that: (1) the various procedures and
systems which Ultimus has implemented with regard to safeguarding from loss or
damage attributable to fire, theft, or any other cause the records, and other
data of the Trust and Ultimus' 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, (2) this Agreement has been
duly authorized by Ultimus and, when executed and delivered by Ultimus, will
constitute a legal, valid and binding obligation of Ultimus, enforceable against
Ultimus 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) it is duly registered
with the appropriate regulatory agency as a transfer agent and such registration
will remain in full force and effect for the duration of the Agreement, and (4)
it has and will continue to have access to the necessary facilities, equipment
and personnel to perform its duties and obligations under this Agreement.
11
18. INSURANCE.
Ultimus shall furnish the Trust with pertinent information concerning the
professional liability insurance coverage that it maintains. Such information
shall include the identity of the insurance carrier(s), coverage levels and
deductible amounts. Ultimus shall notify the Trust should any of its insurance
coverage be canceled or reduced. Such notification shall include the date of
change and the reasons therefore. Ultimus shall notify the Trust of any material
claims against it with respect to services performed under this Agreement,
whether or not they may be covered by insurance, and shall notify the Trust from
time to time as may be appropriate of the total outstanding claims made by
Ultimus under its insurance coverage.
19. INFORMATION TO BE FURNISHED BY THE TRUST.
The Trust has furnished to Ultimus the following:
(a) Copies of the Declaration of Trust and of any amendments thereto,
certified by the proper official of the state in which such document
has been filed.
(b) Copies of the following documents:
(1) The Trust's Bylaws and any amendments thereto; and
(2) Certified copies of resolutions of the Trustees covering the
approval of this Agreement, authorization of a specified
officer of the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct
Ultimus thereunder.
(c) A list of all the officers of the Trust, together with specimen
signatures of those officers who are authorized to instruct Ultimus
in all matters.
(d) Copies of the Prospectus and Statement of Additional Information for
each Portfolio.
20. AMENDMENTS TO AGREEMENT.
This Agreement, or any term thereof, may be changed or waived only by
written amendment signed by the party against whom enforcement of such change or
waiver is sought.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and Ultimus
may conclusively assume that any special procedure which has been approved by
the Trust does not conflict with or violate any requirements of its Declaration
of Trust or then current prospectuses, or any rule, regulation or requirement of
any regulatory body.
21. COMPLIANCE WITH LAW.
Except for the obligations of Ultimus otherwise set forth herein, the
Trust assumes full responsibility for the preparation, contents and distribution
of each prospectus of the Trust as to compliance with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the 1940 Act and any other laws, rules and regulations of governmental
authorities having jurisdiction, all as may be amended form time to time. [The
Trust represents
12
and warrants that no shares of the Trust will be offered to the public until the
Trust's registration statement under the Securities Act and the 1940 Act has
been declared or becomes effective.
22. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such
notice, at the following address: if to the Trust, at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000; and if to Ultimus, at 000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attn: Xxxxxx X. Xxxxxx; or at such other
address as such party may from time to time specify in writing to the other
party pursuant to this Section.
23. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
24. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the State
of Ohio and the applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
25. LIMITATION OF LIABILITY.
A copy of the Declaration of Trust of the Trust is on file with the State
of Delaware and notice is hereby given that this instrument is executed on
behalf of the Board of Trustees of the Trust and not individually and that the
obligations of this instrument are not binding upon any of the Trustees,
officers or shareholders individually but are binding only upon the assets and
property of the Trust (or if the matter relates only to a particular Portfolio,
that Portfolio), and the Ultimus shall look only to the assets of the Trust, or
the particular Portfolio, for the satisfaction of such obligations.
26. PRIVACY
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to Ultimus,
or collected or retained by Ultimus in the course of performing its duties shall
be considered confidential information. Ultimus shall not give, sell or in any
way transfer such confidential information to any person or entity, other than
affiliates of Ultimus where such transfer to affiliates is reasonably necessary
or appropriate and relates to Ultimus' or such affiliates performance of
services and/or internal operations with respect to the Trust or any affiliates
of the Trust, except at the direction of the Trust or as required or permitted
by law. Ultimus represents, warrants and agrees that it has in place and will
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 records and information relating to consumers
and customers of the Trust. The Trust represents to Ultimus that it has adopted
a Statement of its privacy policies and practices as required by the SEC's
Regulation S-P and agrees to provide Ultimus with a copy of such statement
annually.
13
27. MULTIPLE ORIGINALS.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
STRALEM FUND
By: /s/ Phillippe X. Xxxxxxx
----------------------------
Title: President
ULTIMUS FUND SOLUTIONS, LLC
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Title: President
14
SCHEDULE A
TO THE MUTUAL FUND SERVICES AGREEMENT BETWEEN
STRALEM FUND
AND
ULTIMUS FUND SOLUTIONS, LLC
FUND PORTFOLIOS
---------------
Stralem Equity Fund
15
SCHEDULE B
TO THE MUTUAL FUND SERVICES AGREEMENT BETWEEN
STRALEM FUND
AND
ULTIMUS FUND SOLUTIONS, LLC
FEES:
Ultimus Fund Solutions will provide all of the fund administration and
fund accounting and pricing services described herein for a monthly fee
calculated with respect to each Portfolio as follows:
-----------------------------------------------------
AVERAGE DAILY NET ASSETS ASSET BASED FEE
-----------------------------------------------------
Up to $500 million .125%
-----------------------------------------------------
In excess of $500 million .100%
-----------------------------------------------------
The fee will be subject to a monthly minimum fee of $6,000 with respect to each
Portfolio.
Each Portfolio is responsible for its operating expenses, such as federal
and state filing fees, insurance premiums, typesetting and printing of its
public documents, and fees and expenses of its other vendors and providers.
PERFORMANCE REPORTING:
For Performance Reporting (including After-Tax Performance Reporting),
Ultimus charges each Portfolio a fee of $200 per month.
OUT-OF-POCKET EXPENSES:
The fees set forth above shall be in addition to the payment of
out-of-pocket expenses, as provided for in Section 8 of this Agreement.
16
SCHEDULE C
TO THE MUTUAL FUND SERVICES AGREEMENT BETWEEN
STRALEM FUND
AND
ULTIMUS FUND SOLUTIONS, LLC
FEES:
PER-ACCOUNT FEES: Ultimus Fund Solutions will provide all of the transfer
agent and shareholder services described herein based on the following fee
schedule:
Annual fee per shareholder account:
Direct Accounts $20.00 per open account
Fund/SERV Accounts $15.00 per open account
Minimum annual fee $18,000 per Portfolio/class
FUND/SERV AND NETWORKING PROCESSING FEES: For providing the Trust with the
ability to access Fund/SERV and Networking through National Securities Clearing
Corporation, Ultimus will receive an additional processing fee of $500 per
month. This fee is payable to Ultimus irrespective of whether or not the Trust
has any investors through the Fund/SERV or Networking platforms.
XXX FEES: Ultimus charges a $15.00 annual maintenance fee for XXX
accounts.
OUT-OF-POCKET EXPENSES: In addition to the above fees, each Portfolio will
reimburse Ultimus Fund Solutions or pay directly certain out-of-pocket expenses
incurred on a Portfolio's behalf, including but not limited to, postage,
confirmations, statements, printing, telephone lines, Internet access fees, bank
service charges, Portfolio specific Fund/SERV and Networking costs, and other
industry standard transfer agent expenses.
OPTIONAL SERVICES
-----------------
For Web Inquiry access, Ultimus charges an annual fee of $2,500 per
Portfolio.
For the Voice Response Unit ("VRU") access, Ultimus will waive its
one-time set up fee for this service. Ongoing charges for VRU are based upon
usage and are an out-of-pocket expense to the Portfolios.
17
