FORUM FUNDS
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 19th day of May, 1998, as amended and restated the
18th day of November, 2002, by and between Forum Funds, a Delaware Business
Trust, with its principal office and place of business at Two Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxx 00000 (the "Trust"), and Forum Shareholder Services, LLC, a
corporation organized under the laws of the State of Delaware its principal
office and place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000
("Forum").
WHEREAS, the Trust is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets, and is authorized to divide those series into separate
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 13, 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"); and
WHEREAS, the Trust on behalf of the Funds desires to appoint Forum as its
transfer agent and dividend disbursing agent and Forum desires to accept such
appointment;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) APPOINTMENT. 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 (collectively "prospectus") of the
applicable Fund, including, without limitation, any periodic investment plan or
periodic withdrawal program.
(b) DOCUMENT DELIVERY. The Trust has delivered to Forum copies of (i) the
Trust's Trust Instrument 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
Investment Company Act of 1940, as amended ("1940 Act")(the "Registration
Statement"), (iii) the Trust's current Prospectus and Statement of
Additional Information of each Fund (collectively, as currently in effect and as
amended or supplemented, the "Prospectus"), (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 with respect to the Funds (i.e., repurchase agreement procedures), 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 "Board") appointing Forum and
authorizing the execution and delivery of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) SERVICES. 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: (A) maintaining all
Shareholder accounts, (B) preparing Shareholder meeting lists, (C)
mailing proxies 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 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 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 or fund of funds structure, to the
transfer agent or interestholder recordkeeper for the master
portfolios in which the Fund invests;
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(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 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 requested by the Trust and provide periodic reporting to
the Trust or its administrator or other agent;
(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; and
(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) in accordance with the Trust's obligations under all applicable
anti-money laundering laws, regulations, rules and government guidance
and the Bank Secrecy Act ("BSA"), as amended by the USA PATRIOT Act of
2001, together with its implementing regulations, and related
governmental and self-regulatory organization rules and regulations
(collectively, the "Anti-Money Laundering Laws"), maintain an
anti-money laundering program reasonably designed to ensure that the
Trust is in material compliance with the Anti-Money Laundering Laws
with respect to the services provided to the Trust
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under the Agreement (the "Anti-Money Laundering Program"). Forum
agrees to notify the Trust of any change to the Anti-Money Laundering
Program that may materially impact the Trust's anti-money laundering
program. It is contemplated that the Anti-Money Laundering Program as
well as the Trust's anti-money laundering program 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.
(b) OTHER SERVICES. Forum shall provide the following additional services
on behalf of the Trust and such other services agreed to in writing by the Trust
and Forum:
(i) monitor and make appropriate filings with respect to the escheatment
laws of the various states and territories of the United States; and
(ii) receive and tabulate proxy votes/oversee the activities of proxy
solicitation firms and coordinate the tabulation of proxy and shareholder
meeting votes.
(c) BLUE SKY MATTERS. 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) SAFEKEEPING. 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, 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) COOPERATION WITH ACCOUNTANTS. 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) RESPONSIBILITY FOR COMPLIANCE WITH LAW. 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.
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SECTION 3. RECORDKEEPING
(a) PREDECESSOR RECORDS. 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) RECORDKEEPING. 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.
(c) CONFIDENTIALITY OF RECORDS. 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) INSPECTION OF RECORDS BY OTHERS. 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. Forum agrees to allow
appropriate federal examiners to obtain and inspect information and records
maintained by Forum under this Agreement relating to the Trust's anti-money
laundering program and to inspect Forum for purposes of the Trust's anti-money
laundering program.
(e) SUSPICIOUS ACTIVITIES. The Trust agrees to notify Forum promptly about
any known suspicious activities related to open accounts invested in series of
the Trust. Forum
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agrees to notify the Trust promptly about any detected suspicious activities
pursuant to the Anti-Money Laundering Program.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) ISSUANCE OF SHARES. Forum shall make original issues of Shares of each
Fund and Class thereof in accordance with the Trust's then current prospectus
only upon receipt of (i) instructions requesting the issuance, (ii) a certified
copy of a resolution of the Board authorizing the issuance, (iii) necessary
funds for the payment of any original issue tax applicable to such Shares, and
(iv) an opinion of the Trust's counsel as to the legality and validity of the
issuance, which opinion may provide that it is contingent upon the filing by the
Trust of an appropriate notice with the SEC, as required by Section 24 of the
1940 Act or the rules thereunder. If 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) TRANSFER OF SHARES. 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) CERTIFICATES. 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 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) ENDORSEMENT; TRANSPORTATION. 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.
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(c) NON-ISSUANCE OF CERTIFICATES. 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) PURCHASE ORDERS. 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) DISTRIBUTION ELIGIBILITY. Shares issued in a Fund after receipt of a
completed purchase order shall be eligible to receive distributions of the Fund
at the time specified in the prospectus pursuant to which the Shares are
offered.
(c) DETERMINATION OF FEDERAL FUNDS. Shareholder payments shall be
considered Federal Funds no later than on the day indicated below unless other
times are noted in the prospectus 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 second Fund Business Day following receipt of the check; and
(iv) 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.
SECTION 7. FEES AND EXPENSES
(a) FEES. For the services provided by Forum pursuant to this Agreement,
the Trust, on behalf of each 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 latter of the date of this Agreement or the date of commencement of
operations of the Fund. 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.
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(b) EXPENSES. In connection with the services provided by Forum pursuant to
this Agreement, the Trust, on behalf of each 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 expenses and employee time
(at 150% 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.
(c) PAYMENT. All fees and reimbursements are payable in arrears on a
monthly basis and the Trust, on behalf of the applicable Fund, agrees to pay all
fees and reimbursable expenses within five (5) business days following receipt`
of the respective billing notice.
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES OF FORUM. Forum represents and warrants
to the Trust that:
(i) It is a corporation duly organized and existing and in good standing
under the laws of the State of 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 Article of
Incorporation and Bylaws 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.
(vii) It is registered as a transfer agent under Xxxxxxx 00X xx xxx 0000
Xxx.
(x) REPRESENTATIONS AND WARRANTIES OF THE TRUST. 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 Delaware.
(ii) It is empowered under applicable laws and by its Organic Documents to
enter into this Agreement and perform its duties under this Agreement.
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(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.
(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.
(vi) A registration statement under the Securities Act is currently
effective and will remain effective, and appropriate State securities law
filings have been made and will continue to be made, with respect to all
Shares of the Funds and Classes of the Trust being offered for sale.
(vii) It is and will continue to be in compliance with all applicable
Anti-Money Laundering Laws.
SECTION 9. PROPRIETARY INFORMATION
(a) PROPRIETARY INFORMATION OF FORUM. 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) PROPRIETARY INFORMATION OF THE TRUST. 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 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.
SECTION 10. INDEMNIFICATION
(a) INDEMNIFICATION OF FORUM. Forum shall not be responsible for, and the
Trust shall on behalf of each applicable Fund or Class thereof indemnify and
hold Forum harmless from and against, any and all losses, damages, costs,
charges, reasonable counsel fees, payments, expenses and liability arising out
of or attributable to:
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(i) all actions of Forum or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in
good faith and without gross negligence or willful misconduct;
(ii) the Trust's lack of good faith or the Trust's gross negligence 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; and
(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.
(b) INDEMNIFICATION OF TRUST. 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 lack of good faith, gross negligence or
willful misconduct with respect to the services performed under or in connection
with this Agreement.
(c) RELIANCE. At any time Forum may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust or to Forum with
respect to any matter arising in connection with the services to be performed by
Forum under this Agreement, and Forum and its agents or subcontractors shall not
be liable and shall be indemnified by the Trust on behalf of the applicable Fund
for any action taken or omitted by it in reasonable reliance upon such
instructions or upon the advice of such counsel. 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 Forum or its
agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Trust, and (iii) any authorization,
instruction, approval, item or set of data, or information of any kind
transmitted to Forum in person or by telephone, vocal telegram 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
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which are reasonably believed to bear the proper manual or facsimile signatures
of the officers of the Trust, and the proper countersignature of any former
transfer agent or former registrar or of a co-transfer agent or co-registrar of
the Trust.
(d) RELIANCE ON ELECTRONIC INSTRUCTIONS. If the Trust has the ability to
originate electronic instructions to 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 security procedures
established by Forum from time to time.
(e) USE OF FUND/SERV AND NETWORKING. 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.
(f) NOTIFICATION OF CLAIMS. In order that the indemnification provisions
contained in this Section shall apply, upon the assertion of a claim for which
either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim
or to defend against said claim in its own name or in the name of the other
party. The party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) EFFECTIVENESS. This Agreement shall become effective as between Forum
and the Trust on the date first above written, and shall become effective with
respect to a Fund or a Class on the later of the date on which the Trust's
Registration Statement with respect to such Fund or Class becomes effective or
the date of the commencement of operations of the Fund or Class. 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 Trust or the Funds.
(b) DURATION. This Agreement shall continue in effect until terminated,
either in its entirety or with respect to a Fund, as applicable; PROVIDED,
HOWEVER, that its continuance shall be
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specifically approved or ratified with such frequency and in the manner required
by applicable law.
(c) TERMINATION. This Agreement shall continue in effect until terminated,
either in its entirety or with respect to a Fund, as applicable; PROVIDED,
HOWEVER, that its continuance shall be specifically approved or ratified with
such frequency and in the manner required by applicable law. This Agreement may
be terminated at any time, in its entirety or with respect to a Fund, without
the payment of any penalty:
(i) with or without cause, by either party on at least ninety [90] days'
written notice to the other party.
(ii) for cause, by the non breaching party on at least thirty (30) days'
written notice thereof to the other party, if the other party has
materially breached any of its obligations hereunder including, with
respect to Forum, the failure by Forum to act consistently with the
standard of care set forth in Section 10(a)(i); PROVIDED, HOWEVER, that (A)
the termination notice shall describe the breach, and (B) no such
termination shall be effective if, with respect to any breach that is
capable of being cured prior to the date set forth in the termination
notice, the breaching party has cured such breach to the reasonable
satisfaction of the non-breaching party.
(d) COOPERATION WITH SUCCESSORS; COSTS. 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. Should the Trust exercise its right
to terminate this Agreement, the Trust shall reimburse Forum for Forum's costs
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 ("termination costs"); PROVIDED, HOWEVER, that, notwithstanding
anything herein to the contrary, the Trust shall have no obligation to reimburse
Forum for such expenses and employee time if the Trust has terminated this
Agreement pursuant to clause (ii) of subsection (c) above. Forum and the Trust
agree that to cover termination costs, Forum shall receive an amount equal to
the average monthly fees and expenses paid to Forum under this Agreement for the
six full months preceding such termination.
(e) SURVIVAL. The provisions of Sections 7, 9 and 10 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
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Funds and Classes under this Agreement. Forum or the Trust may elect not to make
and 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 any 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 affiliate of
Forum or (ii) subcontract for the performance hereof with any entity, including
an affiliate of Forum; 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.
SECTION 14. FORCE MAJEURE. Forum shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its reasonable
control including, without limitation, acts of civil or military authority,
national emergencies, labor difficulties, fire, 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.
SECTION 15. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS,
OFFICERS, EMPLOYEES AND AGENTS. The trustees of the Trust and the shareholders
of each Fund 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 of the Trust or the shareholders
of the Funds.
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) NO CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be
liable to the other party for consequential damages under any provision of this
Agreement.
(b) AMENDMENTS. No provisions of this Agreement may be amended or modified
in any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) CHOICE OF LAW. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of
Delaware.
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(d) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
(e) COUNTERPARTS. 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.
(f) SEVERABILITY. If any part, term or provision of this Agreement is held
to be illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not be affected, and the
rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
(g) HEADINGS. Section and paragraph headings in this Agreement are included
for convenience only and are not to be used to construe or interpret this
Agreement.
(h) NOTICES. 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) BUSINESS DAYS. 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. 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.
(j) DISTINCTION OF FUNDS. Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each Fund of the
Trust are separate and distinct from the assets and liabilities of each other
Fund and that no Fund shall be liable or shall be charged for any debt,
obligation or liability of any other Fund, whether arising under this Agreement
or otherwise.
(k) NONLIABILITY OF AFFILIATES. 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) REPRESENTATION OF SIGNATORIES. Each of the undersigned expressly
warrants and represents that they have full power and authority to
sign this Agreement on behalf of the party indicated and that their
signature will bind the party indicated to the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
persons, as of the day and year first above written.
FORUM FUNDS
By: /s/ XXXX X. XXXXXX
-------------------------------------
Xxxx X. Xxxxxx
President
FORUM SHAREHOLDER SERVICES, LLC
By: /s/ XXXX X. XXXXXXXX
-------------------------------------
Xxxx X. Xxxxxxxx
Director
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