CENTURY CAPITAL MANAGEMENT TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT as amended and restated as of the 16th day of June, 2005,
among Century Capital Management Trust, a Massachusetts business trust with its
principal office and place of business at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Trust") and Forum Shareholder Services, LLC, a
Delaware limited liability company with its principal office and place of
business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and may issue its shares of beneficial interest (the "Shares"), in separate
series and classes; and
WHEREAS, the Trust offers shares in various series as listed in
Appendix 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 12, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers shares of various classes of each Fund as listed
in Appendix A hereto (each such class together with all other classes
subsequently established by the Trust in a Fund being herein referred to as a
"Class," and collectively as the "Classes");
WHEREAS, the Trust must be in compliance with all applicable anti-money
laundering laws, regulations, rules and government guidance, including the
reporting, recordkeeping and compliance requirements of the Bank Secrecy Act
("BSA"), as amended by the USA PATRIOT Act of 2001 (together with its
implementing regulations, the "PATRIOT Act"), its implementing regulations, and
related governmental and self-regulatory organization rules and regulations (the
"AML Laws"), and the Trust has adopted certain policies and procedures (the "AML
Program") to ensure compliance with the AML Laws;
WHEREAS, the Trust desires that Forum perform as the transfer agent and
dividend disbursing agent for each Fund and perform certain services in
connection with its AML Program and Forum is willing to provide these services
on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree to amend and
restate this Agreement as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust, on behalf of the Funds, hereby appoints Forum to act as,
and Forum agrees to act as, (i) transfer agent for the authorized and issued
shares of beneficial interest of the Trust representing interests in each of the
respective Funds and Classes thereof ("Shares"), (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") and set out in the currently effective prospectuses and
statements of additional information as amended or supplemented (collectively,
the "Prospectus") of the applicable Fund, including, without limitation, any
periodic investment plan or periodic withdrawal program.
(b) In connection therewith, the Trust has delivered to Forum copies
of: (i) the Trust's Declaration of Trust and Bylaws (collectively, as amended
from time to time, "Organic Documents"); (ii) the Trust's Registration Statement
and all amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"); (iii) the
Prospectus of each Fund; (iv) each current plan of distribution or similar
document adopted by the Trust under Rule 12b-1 under the 1940 Act ("Plan") and
each current shareholder service plan or similar document adopted by the Trust
("Service Plan"); and (v) all procedures adopted by the Trust related to Shares
or the Funds' Shareholders and otherwise reasonably requested by Forum, and
shall promptly furnish Forum with all amendments of or supplements to the
foregoing. The Trust shall deliver to Forum a certified copy of the resolution
of the Board of Trustees of the Trust (the "Trustees") appointing Forum and
authorizing the execution and delivery of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures established from
time to time by agreement between the Trust on behalf of each of the
Funds, as applicable, and Forum, Forum 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, but not limited to: (A)
maintaining all Shareholder accounts, (B) preparing Shareholder meeting
lists, (C) mailing proxies and related materials to Shareholders, (D)
mailing Shareholder reports and Prospectuses to current Shareholders,
(E) withholding taxes on U.S. resident and non-resident alien accounts,
(F) preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required by federal authorities with respect to
distributions for Shareholders, (G) preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable
2
transactions in Shareholder accounts, (H) preparing and mailing
activity statements for Shareholders, and (I) providing Shareholder
account information;
(ii) receive for acceptance orders for the purchase of Shares (by way
of direct purchase or reinvestment of income dividend or capital gain
distribution) and promptly deliver payment and appropriate
documentation therefor to the custodian of the applicable Fund (the
"Custodian") or, in the case of Fund's operating in a master-feeder or
fund of funds structure, to the transfer agent or interestholder
recordkeeper for the master portfolios in which the Fund invests;
(iii) pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the
appropriate documentation therefor to the Custodian or, in the case of
Fund's operating in a master-feeder structure, to the transfer agent or
interestholder recordkeeper for the master fund in which the Fund
invests;
(v) as and when it receives monies paid to it by the Custodian with
respect to any redemption, pay the redemption proceeds as required by
the Prospectus pursuant to which the redeemed Shares were offered and
as instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all dividends and distributions
declared by the Trust with respect to Shares;
(viii) issue share certificates and replacement share certificates for
those share certificates alleged to have been lost, stolen, or
destroyed upon receipt by Forum of indemnification satisfactory to
Forum and protecting Forum and the Trust and, at the option of Forum,
issue replacement certificates in place of mutilated share certificates
upon presentation thereof without requiring indemnification;
(ix) receive 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;
(x) track shareholder accounts by financial intermediary source and
otherwise as reasonably requested by the Trust and provide periodic
reporting to the Trust or its administrator or other agent;
3
(xi) maintain records of account for and provide reports and statements
to the Trust and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Trust and maintain pursuant
to Rule 17Ad-10(e) under the Securities Exchange Act of 1934, as
amended ("1934 Act") a record of the total number of Shares of the
Trust, each Fund and each Class thereof, that are authorized, based
upon data provided to it by the Trust, and are issued and outstanding
and provide the Trust on a regular basis a report of the total number
of Shares that are authorized and the total number of Shares that are
issued and outstanding;
(xiii) provide a system which will enable the Trust to calculate the
total number of Shares of each Fund and Class thereof sold in each
State;
(xiv) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United
States;
(xv) oversee the activities of proxy solicitation firms;
(xvi) establish and implement an anti-money laundering program that
satisfies the requirements of the AML Laws and perform the services
described in Section 18 and Appendix C to this Agreement; and
(xvi) as directed by the Adviser, prepare and file applications for
registration of a Fund's Shares (or other applicable filings) in the
various States.
(b) Forum shall receive and tabulate proxy votes, coordinate the
tabulation of proxy and shareholder meeting votes and perform such other
additional services as may be specified from time to time by the Trust, all
pursuant to mutually acceptable compensation and implementation agreements.
(c) The Trust or its administrator or other agent (i) shall identify to
Forum in writing those transactions and assets to be treated as exempt from
reporting for each state and territory of the United States and for each foreign
jurisdiction (collectively "States") and (ii) shall monitor the sales activity
with respect to Shareholders domiciled or resident in each State. The
responsibility of Forum for the Trust's State registration status is solely
limited to the reporting of transactions to the Trust, and Forum 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 administrator or other agent.
(d) Forum shall establish and maintain facilities and procedures
reasonably acceptable to the Trust for the safekeeping, control, preparation and
use of share certificates, check forms,
4
and facsimile signature imprinting devices. Forum shall establish and maintain
facilities and procedures reasonably acceptable to the Trust for safekeeping of
all records maintained by Forum pursuant to this Agreement.
(e) Forum shall cooperate with each Fund's independent public
accountants and shall take reasonable action to make all necessary information
available to the accountants for the performance of the accountants' duties.
(f) Except with respect to Forum's 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.
SECTION 3. RECORDKEEPING
(a) Prior to the commencement of Forum's responsibilities under this
Agreement, if applicable, the Trust shall deliver or cause to be delivered over
to Forum (i) an accurate list of Shareholders of the Trust, showing each
Shareholder's address of record, number of Shares owned and whether such Shares
are represented by outstanding share certificates and (ii) all Shareholder
records, files, and other materials necessary or appropriate for proper
performance of the functions assumed by Forum under this Agreement (collectively
referred to as the "Materials"). The Trust shall on behalf of each applicable
Fund or Class indemnify and hold Forum harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to any error, omission, inaccuracy or other
deficiency of the Materials, or out of the failure of the Trust to provide any
portion of the Materials or to provide any information in the Trust's possession
or control reasonably needed by Forum to perform the services described in this
Agreement.
(b) Forum 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, Forum agrees that all such records prepared or
maintained by Forum relating to the services to be performed by Forum 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 Forum's records relating to the services to be performed
under this Agreement at all times during Forum's normal business hours. Upon the
reasonable request of the Trust, copies of any such records shall be provided
promptly by Forum to the Trust or the Trust's authorized representatives.
5
(c) Forum and the Trust agree that all books, records, information, and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
(d) In case of any requests or demands for the inspection of the
Shareholder records of the Trust, Forum will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. Forum shall abide by the Trust's instructions for granting or
denying the inspection; provided, however, that Forum may grant the inspection
without instructions if Forum is advised by counsel to Forum that failure to do
so will result in liability to Forum.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) Forum shall make original issues of Shares of each Fund and Class
thereof in accordance with the Trust's then current Prospectus for each Fund
only upon receipt of (i) instructions requesting the issuance, (ii) a copy of a
resolution of the Trustees authorizing the issuance, which copy may pre-date the
date of this Agreement but must be certified as genuine by the Secretary of the
Trust, (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 the
opinion described in (iv) above is contingent upon a filing under Section 24 of
the 1940 Act, the Trust shall indemnify Forum for any liability arising from the
failure of the Trust to comply with that section or the rules thereunder.
(b) Transfers of Shares of each Fund and Class thereof shall be
registered on the Shareholder records maintained by Forum. In registering
transfers of Shares, Forum may rely upon the Uniform Commercial Code as in
effect in the State of Delaware or any other statutes that, in the opinion of
Forum's counsel, protect Forum 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 (iv)
refusing registration whenever an adverse claim requires such refusal. As
transfer agent, Forum will be responsible for delivery to the transferor and
transferee of such documentation as is required by the Uniform Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) The Trust shall furnish to Forum a supply of blank share
certificates of each Fund and Class thereof and, from time to time, will renew
such supply upon Forum's request. Blank share certificates shall be signed
manually or by facsimile signatures of officers of the Trust authorized to sign
by the Organic Documents of the Trust and, if required by the Organic Documents,
shall bear the Trust's seal or a facsimile thereof. Unless otherwise directed by
the
6
Trust, Forum may issue or register Share certificates reflecting the manual
or facsimile signature of an officer who has died, resigned or been removed by
the Trust.
(b) New Share certificates shall be issued by Forum upon surrender of
outstanding Share certificates in the form deemed by Forum to be properly
endorsed for transfer and satisfactory evidence of compliance with all
applicable laws relating to the payment or collection of taxes. Forum shall
forward Share certificates in "non-negotiable" form by first-class or registered
mail, or by whatever means Forum deems equally reliable and expeditious. Forum
shall not mail Share certificates in "negotiable" form unless requested in
writing by the Trust and fully indemnified by the Trust to Forum's satisfaction.
(c) In the event that the Trust informs Forum that any Fund or Class
thereof does not issue share certificates, Forum shall not issue any such share
certificates and the provisions of this Agreement relating to share certificates
shall not be applicable with respect to those Funds or Classes thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of a Fund's or
Class' Prospectus after Forum or its agent receives either:
(i) (A) an instruction directing investment in a Fund or Class, (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) 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) Shareholder payments shall be considered Federal Funds no later
than on the day indicated below unless other times are noted in the Prospectus
of the applicable Class or Fund:
(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 next 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 Forum is credited with Federal Funds
with respect to that check.
7
SECTION 7. COMPENSATION AND EXPENSES
(a) For the services provided by Forum pursuant to this Agreement, the
Trust, on behalf of each applicable Fund, agrees to pay Forum the fees set forth
in Clauses (i) and (ii) of Appendix B hereto. Fees will begin to accrue for each
Fund on the date on which Forum begins providing the services contemplated under
this Agreement, which date shall be on or after November 11, 2002 unless Forum
receives a request in writing from the Trust to begin providing such services on
a date earlier than November 11, 2002. If fees begin to accrue in the middle of
a month or if this Agreement terminates before the end of any month, all fees
for the period from that date to the end of that month or from the beginning of
that month to the date of termination, as the case may be, shall be prorated
according to the proportion that the period bears to the full month in which the
effectiveness or termination occurs. Upon the termination of this Agreement with
respect to a Fund, the Trust shall pay to Forum such compensation as shall be
payable prior to the effective date of termination. The Trust acknowledges that
Forum may from time to time earn money (the "Interest Income") on amounts in the
deposit accounts maintained by Forum to service the Funds (and other clients
serviced by Forum), provided that the Interest Income shall be used to offset
the following fees for the Funds to the extent such Interest Income is
attributable to money from the Trust or the Funds: (i) incoming wire fees, (ii)
outgoing wire fees, (iii) check clearing fees, and (iv) ACH fees.
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Trust, on behalf of each applicable Fund, agrees to reimburse
Forum for the expenses set forth in Appendix B hereto. In addition, the Trust,
on behalf of the applicable Fund, shall reimburse Forum for all reasonable
incurred expenses and employee time (at 100% of salary) attributable to any
review of the Trust's accounts and records by the Trust's independent
accountants or any regulatory body outside of routine and normal periodic
reviews. Should the Trust exercise its right to terminate this Agreement, the
Trust, on behalf of the applicable Fund, shall reimburse Forum for all
reasonable incurred out-of-pocket expenses and employee time (at 100% of salary)
associated with the copying and movement of records and material to any
successor person and providing assistance to any successor person in the
establishment of the accounts and records necessary to carry out the successor's
responsibilities.
(c) All fees and reimbursements shall be payable monthly in advance on
the first day of each calendar month for services to be performed during the
following calendar month. The Trust, on behalf of the applicable Fund, agrees to
pay all fees and reimbursable expenses within thirty (30) business days
following receipt of the respective billing notice.
8
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to the Trust that:
(i) It is a limited liability company duly organized and existing and
in good standing under the laws of the State of Delaware;
(ii) It is duly qualified to carry on its business in the State of
Maine;
(iii) It is empowered under applicable laws and by its Operating
Agreement to enter into this Agreement and perform its duties under
this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement;
(v) It has access to the necessary facilities, equipment, and personnel
to perform its duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of Forum, enforceable against Forum
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; and
(vii) It is registered as a transfer agent under Section 17A of the
1934 Act.
Forum agrees that clauses (i) through (vii) of this paragraph (a) shall
remain true throughout the term of this Agreement; provided, however, that Forum
may re-incorporate into a different state, change its organizational form, or
change its principal place of business within the United States upon notice to
the Trust.
(b) The Trust represents and warrants to Forum that:
(i) It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(ii) It is empowered under applicable laws and by its Organic Documents
to enter into this Agreement and perform its duties under this
Agreement;
(iii) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement;
(iv) It is an open-end management investment company registered under
the 1940 Act;
9
(v) This Agreement, when executed and delivered, 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; and
(vi) A Registration Statement is currently effective and will remain
effective.
(vii) The Trust shall execute any and all documents, furnish to Forum
any and all information, otherwise use its best efforts to take all
actions that may be reasonably necessary and cooperate with Forum in
taking any action as may be necessary to register or qualify Shares for
sale under the securities laws of the various States as Forum shall
designate (subject to approval by the Trust); provided that Forum shall
not be required to file a consent to service of process in any State
and neither the Trust nor any Fund or Class thereof shall be required
to qualify as a foreign corporation, trust or association in any State.
Any registration or qualification may be withheld, terminated or
withdrawn by the Trust at any time in its discretion. Forum shall
furnish such information and other material relating to its affairs and
activities as may be required by the Trust in connection with such
registration or qualification.
(viii) The Trust's AML Program is reasonably designed to ensure
compliance in all material respects with the applicable AML Laws, in
light of the particular business of the Trust, taking into account
factors such as its size, location, activities and risks or
vulnerabilities to money laundering.
The Trust agrees that clauses (i) through (viii) of this paragraph (b)
shall remain true throughout the term of this Agreement; provided, however, that
the Trust may re-incorporate into a different state, change its organizational
form, or change its principal place of business within the United States upon
notice to Forum.
SECTION 9. PROPRIETARY INFORMATION
(a) The Trust acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques, and documentation
manuals maintained by Forum on databases under the control and ownership of
Forum or a third party constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of substantial
value to Forum or the third party. The Trust agrees to treat all Proprietary
Information as proprietary to Forum 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) Forum acknowledges that the Shareholder list and all information
related to Shareholders furnished to Forum 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. Forum
10
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 may be directed by the Trust.
Forum agrees to comply with SEC Regulation S-P with respect to all Customer Data
that Forum may receive from time to time.
SECTION 10. INDEMNIFICATION
(a) Forum shall not be liable to the Trust or any of the Shareholders
for any action or inaction of Forum relating to any event whatsoever in the
absence of bad faith, willful misfeasance, material violation of law or, subject
to the proviso below, negligence in the performance of Forum's duties or
obligations under this Agreement or Forum's reckless disregard of its duties and
obligations under this Agreement; provided, however, that the negligence
standard referred to above shall be gross negligence with respect to the
following (collectively, "Exception Services"): any transactions required to be
processed by Forum pursuant to this Agreement that (i) require Forum to use
methods and procedures other than those usually employed by Forum to perform
services under this Agreement or (ii) require more manual intervention by Forum,
either in the entry of data or in the modification or amendment of reports
generated by Forum's then-current software systems than is usually required by
funds similar to the Funds.
(b) The Trust shall on behalf of each applicable Fund or Class thereof
indemnify and hold Forum, its employees, directors, officers and managers and
any person who controls Forum within the meaning of section 15 of the Securities
Act or section 20 of the 1934 Act ("Forum Indemnitees") harmless from and
against, any and all losses, damages, costs, charges, reasonable counsel fees,
payments, expenses and liability arising out of or attributable to:
(i) all actions of Forum or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions (or
omissions to act) are taken in good faith and without willful
misfeasance, negligence (or gross negligence with respect to Exception
Services), material violation of law or reckless disregard by Forum of
its duties and obligations under this Agreement;
(ii) the Trust's negligence, material violation of law or willful
misconduct;
(iii) the reliance on or use by Forum or its agents or subcontractors
of information, records, documents or services which have been
prepared, maintained or performed by the Trust or any other person or
firm on behalf of the Trust, including but not limited to any previous
transfer agent or registrar;
(iv) the reasonable reliance on, or the carrying out by Forum or its
agents or subcontractors of, any instructions or requests of the Trust
on behalf of the applicable Fund;
11
(v) the offer or sale of Shares in violation of any requirement under
the Federal securities laws or regulations or the securities laws or
regulations of any State that such Shares be registered in such State
or in violation of any stop order or other determination or ruling by
any federal agency or any State with respect to the offer or sale of
such Shares in such State; and
(vi) any oversale of Shares in a particular State.
(c) Forum shall indemnify and hold the Trust and each Fund or Class
thereof harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of or
attributed to any action or failure or omission to act by Forum as a result of
Forum's bad faith, willful misfeasance, negligence (or gross negligence with
respect to Exception Services), material violation of law or reckless disregard
of its duties and obligations under this Agreement.
(d) At any time Forum 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 Forum
under this Agreement, and, notwithstanding anything herein to the contrary,
Forum and any Forum Indemnitee 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. Forum, its agents and subcontractors shall be protected and indemnified
in acting upon (i) any paper or document furnished by or on behalf of the Trust,
reasonably believed by Forum to be genuine and to have been signed by the proper
person or persons, (ii) any instruction, information, data, records or documents
provided to Forum or its agents or subcontractors by (A) electronic message,
machine readable input, telex, CRT data entry or (B) 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 Forum in person
or by telephone, vocal telegram, electronic message or other electronic means,
reasonably believed by Forum to be genuine and to have been given by the proper
person or persons. Forum shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from the Trust.
Forum, 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.
(e) If the Trust has the ability to originate electronic instructions
to Forum 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
Forum 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 reasonable security procedures established by
Forum from time to time.
12
(f) The Trust has authorized or in the future may authorize Forum to
act as a "Mutual Fund Services Member" for the Trust or various Funds. Fund/SERV
and Networking are services sponsored by the National Securities Clearing
Corporation ("NSCC") and 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. The Trust shall
indemnify and hold Forum harmless from and against any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liability
arising directly or indirectly out of or attributed to any action or failure or
omission to act by NSCC.
(g) 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 (the
"Indemnitee") shall promptly notify the party who may be required to indemnify
(the "Indemnifier") of such assertion, and the Indemnitee shall keep the
Indemnifier advised with respect to all developments concerning such claim. The
Indemnifier shall have the option to participate with the Indemnitee in the
defense of such claim or to defend against said claim in Indemnifier's own name
or in the name of the Indemnitee. If the Indemnifier elects to defend against
said claim in its own name or in the name of the Indemnitee, the Indemnitee
shall bear the fees and expenses of any additional counsel that the Indemnitee
retains to defend said claim. The Indemnitee shall in no case confess any claim
or make any compromise in any case in which the Indemnifier may be required to
indemnify it without the Indemnifier's prior written consent.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each Fund on
November 11, 2002. Upon effectiveness of this Agreement, it shall supersede all
previous agreements between the parties hereto covering the subject matter
hereof insofar as such Agreement may have been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to each Fund
unless earlier terminated in accordance with this Section or until the Fund
ceases operations.
(c) Notwithstanding Section 11(b), this Agreement may be terminated
with respect to a Fund, without the payment of any penalty (i) by either the
Trust or Forum (A) ten (10) business days after written notice to the other
party of a material breach of this Agreement if the breach has not been cured by
the breaching party within that period or (B) immediately in the event of an
incurable material breach of this Agreement. Any termination shall be effective
as of the date specified in the notice.
(d) This Agreement may be terminated with respect to a Fund at any
time, without the payment of any penalty by either the Trust or Forum on sixty
(60) days' written notice to the other party. Any termination shall be effective
as of the date specified in the notice.
13
(e) Upon notice of termination of this Agreement by either party, Forum
shall promptly transfer to the successor transfer agent the original or copies
of all books and records maintained by Forum under this Agreement including, in
the case of records maintained on computer systems, copies of such records in
machine-readable form, and shall cooperate with, and provide reasonable
assistance to, the successor transfer agent in the establishment of the books
and records necessary to carry out the successor transfer agent's
responsibilities.
(f) Upon termination of this Agreement, the Trust, on behalf of each
applicable Fund, shall remain liable to Forum in accordance with Section 7 of
this Agreement for the payment of all fees and expenses incurred only up to the
date of termination of this Agreement.
(g) The obligations of Sections 3, 9, 10, 15, and 17 shall survive any
termination of this Agreement.
SECTION 12. ADDITIONAL FUNDS AND CLASSES
In the event that 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. Forum or the Trust may elect not to make any
such series or classes subject to this Agreement.
SECTION 13. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement
nor any rights or obligations under this Agreement may be assigned by either
party without the written consent of the other party. This Agreement shall inure
to the benefit of and be binding upon the parties and their respective permitted
successors and assigns. Forum may, without further consent on the part of the
Trust, (i) assign this agreement to any qualified affiliate of Forum or (ii)
subcontract for the performance hereof with any qualified entity, including an
affiliate of Forum which may include appointing such entity as an agent of the
Trust or a Fund with the power to appoint subagents; provided however, that
Forum shall be as fully responsible to the Trust for the acts and omissions of
any subcontractor as Forum is for its own acts and omissions. Notwithstanding
the foregoing or any other provision of this Agreement to the contrary, Forum
shall not be liable for the actions or omissions of third parties, or their
agents, engaged by Forum at the request of the Trust, a Fund or a Fund's
investment adviser or distributor to provide services to or for the benefit of
the Trust or a Fund.
SECTION 14. FORCE MAJEURE
Neither Forum nor the Trust shall be responsible to the other or liable
for any failure or delay in performance of their respective obligations under
this Agreement arising out of or caused, directly or indirectly, by
circumstances beyond their reasonable control, including, without limitation,
acts of civil or military authority, national emergencies, labor difficulties,
fire,
14
mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war,
riots or failure of the mails or any transportation medium, communication system
or power supply; provided, however, that Forum shall have in place and maintain
back-up and recovery systems in accordance with good industry practice for
mechanical breakdowns (including but not limited to software or computer
failure) or failure of any communication system or power supply.
SECTION 15. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees and the Shareholders shall not be liable for any
obligations of the Trust or of the Funds under this Agreement, and Forum agrees
that, in asserting any rights or claims under this Agreement, it shall look only
to the assets and property of the Trust or the Fund to which Forum's rights or
claims relate in settlement of such rights or claims, and not to the Trustees or
the Shareholders.
SECTION 16. TAXES
Forum shall not be liable for any taxes, assessments or governmental
charges that may be levied or assessed on any basis whatsoever in connection
with the Trust or any Shareholder or any purchase of Shares, excluding taxes
assessed against Forum for compensation received by it under this Agreement.
SECTION 17. MISCELLANEOUS
(a) Notwithstanding any other provisions hereof to the contrary,
neither party to this Agreement shall be liable to the other party for
consequential damages, including without limitation lost profits, under any
provision of this Agreement, even if advised of the possibility of the same.
(b) Except for Appendix A to add new Funds and Classes in accordance
with Section 12, 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.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) 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.
(e) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
15
(f) 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. This Agreement shall be construed as if drafted jointly by both Forum
and Trust and no presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, or at such other address as a
party may have designated in writing, shall be deemed to have been properly
given.
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day; provided, however, that Forum shall, upon
reasonable advance notice from the Trust, use commercially reasonable efforts to
perform any functions or duties required under this Agreement that the Trust may
request to be performed on a day that is not a Fund business day. Functions or
duties normally scheduled to be performed on any day which is not a Fund
business day shall be performed on, and as of, the next Fund business day,
unless otherwise required by law or unless performed upon request of the Trust
in accordance with the preceding sentence.
(j) 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) No affiliated person (as that term is defined in the 1940 Act),
employee, agent, director, officer or manager of Forum shall be liable at law or
in equity for Forum's obligations under this Agreement.
(l) The terms "affiliated person," "assignment" and "vote of a majority
of the outstanding voting securities" shall have the meanings ascribed thereto
in the 1940 Act.
SECTION 18. AML SERVICES
(a) The Trust hereby delegates to Forum the performance, on behalf of
the Trust, of the services set forth in Appendix C to this Amendment (the "AML
Services") with respect to shareholder accounts maintained by Forum pursuant to
the Agreement; and subject to the terms and conditions of the Agreement and this
Amendment, Forum accepts this delegation and agrees to perform the AML Services
in accordance with the Trust's and Forum's AML Program and to
16
cooperate with the Trust's AML Compliance Officer in the performance of its
responsibilities hereunder.
(b) It is contemplated that the Trust's and Forum's AML Programs will
be amended from time to time, as additional regulations are adopted and/or
regulatory guidance is provided relating to the Trust's or Forum's anti-money
laundering responsibilities. Each party agrees to notify the other party of any
material change to its AML Program.
(c) Forum agrees to notify the Trust promptly about any detected
unusual or suspicious activities involving accounts of Trust shareholders
pursuant to Forum's anti-money laundering program. The Trust agrees to notify
Forum promptly about any detected unusual or suspicious activities involving
accounts of Trust shareholders.
(d) Notwithstanding this delegation, the Trust shall maintain full
responsibility for ensuring that its AML Program is and continues to be
reasonably designed to ensure compliance with the applicable AML Laws. Forum
shall maintain policies, procedures and internal controls that are consistent
with the Trust's AML Program and the requirement that the Trust employ
procedures reasonably designed to achieve compliance with the applicable AML
Laws and the Trust's AML Program.
[Remainder of this page left intentionally blank.]
17
IN WITNESS WHEREOF, the parties hereto have caused this Transfer Agency
and Services 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.
CENTURY CAPITAL MANAGEMENT TRUST
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx
Secretary
FORUM SHAREHOLDER SERVICES, LLC
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx
Treasurer
18
CENTURY CAPITAL MANAGEMENT TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
Appendix A
----------------------------------------- -------------------------------------
Funds of the Trust Classes of the Funds
----------------------------------------- -------------------------------------
Century Shares Trust Investor Shares
Institutional Shares
----------------------------------------- -------------------------------------
Century Small Cap Select Fund Investor Shares
Institutional Shares
----------------------------------------- -------------------------------------
A1
CENTURY CAPITAL MANAGEMENT TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
Appendix B
Fees and Expenses
(i) Fees:
a. Shareholder account fees:
o $12.00 per year per shareholder account.
o $1.80 per year per closed shareholder account.
o Subject to a minimum fee of $18,000 per year per CUSIP (share
class).
o $10.00 annual XXX fee to XXX accounts (charged to shareholder).
For the 2002 calendar year Century Capital Management, Inc. shall
pay to the Trust's predecessor XXX custodian, State Street Bank &
Trust Company ("State Street"), an amount equal to the pro rated
fee payable to State Street for its services as custodian of the
Trust's XXX accounts prior to November 11, 2002 (the "State
Street Fee"). In 2003, Forum shall charge and collect the $10.00
annual XXX fee for the 2002 calendar year, but shall use a
portion of the proceeds from the collection of this fee to
reimburse Century Capital Management, Inc. in full for the State
Street Fee. Beginning in 2004 and for each subsequent year
thereafter that this Agreement remains in effect, Forum shall
charge, collect and retain all of the $10.00 annual XXX fee owed
to it for its services as XXX account custodian in the preceding
calendar year.
b. Transaction fees:
o None for 0-1500 manual transactions/month.
o $2.00 per manual transaction processed above 1500 per month.
c. Telephone servicing fees:
o None for 0-1500 telephone calls/month.
o $2.50 per telephone call answered above 1500 per month.
d. Internet service fees:
o $6,000 per year per fund (up to three classes per fund).
e. Annual fee increase:
o The above fees shall remain in effect until October 31, 2003.
o On November 1, 2003 and on the date of each twelve month
anniversary thereafter, all of the fees (except the annual XXX
fee) shall increase by a percentage equal to the change in the
National Employment Cost Index for Service Producing Industries
(Finance, Insurance, Real Estate) for the
B1
preceding twelve months, as published by the Bureau of Labor
Statistics of the United States Department of Labor.
f. Blue Sky Fees:
o A fee of $65 per registration, permit or similar item ("Permit")
of a Fund or Class in each State.
o These fees shall be payable monthly in arrears as of the first
day of each calendar month for those Permits (a) for which Forum
has made the appropriate filing (for instance, a Form NF) during
the prior calendar month or (b) whose annual anniversary or other
renewal date has occurred during the prior calendar month.
(ii) Out-Of-Pocket and Related Expenses
The Trust, on behalf of the applicable Fund, shall reimburse Forum for all
out-of-pocket and ancillary expenses in providing the services described in
this Agreement, including but not limited to the cost of (or appropriate
share of the cost of): (i) stock for statements, confirmations,
applications, forms, certificates, checks, drafts, envelope and stationery,
(ii) printing and clearing of checks and drafts, (iii) literature
fulfillment, statement, confirmation, tax form and letter preparation,
insertion, mailing and delivery, (iv) communications services, including
(if utilized) allocated voice response system costs, (v) NSCC Mutual Fund
Service Member fees and expenses, (vi) fees and expenses of outside proxy
solicitors and tabulators, (vii) record storage, imaging, microfilm and
microfiche, (viii) reproduction, (ix) postage, (x) escheatment, (xi) travel
requested by the Trust, (xii) the registration of the Shares for sale under
the Securities Act; (xiii) the registration or qualification of the Shares
for sale under the securities laws of the various States; (iii) the costs
payable to each State for continuing registration or qualification therein
until the Trust decides to discontinue registration or qualification
pursuant to Section 8(b)(vii) hereof. .
In addition, any other expenses incurred by Forum with respect to
compliance by the Trust with any new laws or regulations that come into effect
after the date of the Agreement, or incurred by Forum at the request or with the
consent of the Trust, will be reimbursed by the Trust on behalf of the
applicable Fund.
B2
APPENDIX A
AML SERVICES
With respect to transactions in shares in the Trust for which Forum maintains
the applicable shareholder information, Forum shall:
(a) Review and submit all shareholder financial and non-financial transactions
through the Office of Foreign Assets Control Database (and such other lists or
databases as may be required from time to time by applicable regulatory
authorities), including screening of all shareholder accounts upon changes to
such database.
(b) Screen all shareholder accounts at the request of Financial Crimes
Enforcement Network ("FinCEN") pursuant to Section 314(a) of the PATRIOT Act and
report any positive "hits" to FinCEN.
(c) Monitor shareholder accounts and identify and report suspicious activities
that are required to be so identified and reported, in each case consistent with
the Trust's and Forum's AML Programs.
(d) Place holds on transactions in shareholder accounts or freeze assets in
shareholder accounts, as provided in the Trusts' and Forum' AML Programs and in
accordance with the Act and OFAC.
(e) Adopt risk-based procedures for verifying the identity of each customer to
the extent reasonable and practicable, in accordance with Section 326 of the
PATRIOT Act.
(f) Follow the Trusts' policy, which may change from time to time, with respect
to the acceptance of cash equivalents and third party checks.
(g) Follow the Trusts' policy on accounts held by non-US persons.
(h) Maintain all records or other documentation related to shareholder accounts
and transactions therein that are required to be prepared and maintained
pursuant to the Trust's and Forum's AML Programs, and make the same available
for inspection by (i) the Trust's AML Compliance Officer, (ii) any auditor of
the Trust's AML Program or related procedures, policies or controls that has
been designated by the Trust in writing, or (iii) regulatory or law enforcement
authorities, and otherwise make said records or other documents available at the
direction of the Trust's AML Compliance Officer.
B3
