ICM SERIES TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 1st day of January, 2002, by and between ICM
Series Trust, a Massachusetts business trust, with its principal office and
place of business at 00 Xxxxxx Xxxxx Xxxxxx, Xxxxxx, XX 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, no par value (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 desires that Forum perform as the transfer agent and
dividend disbursing agent for each Fund 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 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 (collectively "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, "Organizational 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
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) 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 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 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");
(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;
(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;
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(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;
(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; and
(xv) oversee the activities of proxy solicitation firms.
(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.
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(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, 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.
(g) Subject to prior written approval of the Trust, Forum may
subcontract any or all of its functions or responsibilities pursuant to this
Agreement to one or more persons, which may be affiliated persons of Forum, who
agree to comply with the terms of this Agreement; provided, that any such
subcontracting shall not relieve Forum of its responsibilities hereunder. Forum
may pay those persons for their services, but no such payment will increase
Forum's compensation or reimbursement of expenses from the Trust.
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
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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) 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 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) 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 Organizational Documents of the Trust and, if required by the
Organizational Documents, shall bear the Trust's seal or a facsimile thereof.
Unless otherwise
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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) 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.
SECTION 7. FEES AND EXPENSES
(a) 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
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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. The Trust acknowledges that Forum may from time to time earn money
on amounts in the deposit accounts maintained by Forum to service the Funds (and
other clients serviced by Forum).
(b) 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 reasonable incurred 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. 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 150% 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. Any such expenses and charges shall
be documented fully in the invoice submitted to the Trust for payment.
(c) 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) 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,
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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 Xxxxxxx 00X xx xxx
0000 Xxx.
(x) 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 Organizational
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;
(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 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.
SECTION 9. PROPRIETARY INFORMATION, CONFIDENTIALITY
(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
or use any Proprietary Information to any person or organization except as may
be provided under this Agreement.
(b) Forum acknowledges that the books, records and other data of the
Trust (collectively, "Trust Data") and 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 or Trust Data. Forum agrees to
treat all Customer Data and Trust Data as proprietary to the Trust and further
agrees that it shall not divulge or use any Customer Data to any person or
organization except as may be provided under this Agreement or as may be
directed by the Trust.
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(c) Forum shall abide by the Trust's privacy policy pursuant to
Regulation S-P promulgated under Section 504 of the Xxxxx-Xxxxx-Xxxxxx Act.
SECTION 10. INDEMNIFICATION
(a) 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:
(i) all actions of Forum or its approved subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken
in good faith and without 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 approved 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
approved 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) 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, (i) negligence, willful misconduct or violation of
law with respect to the services performed under or in connection with this
Agreement, (ii) any breach of this Agreement by Forum, or (iii) Forum's
violation of law.
(c) At any time Forum may apply to any officer of the Trust for
instructions, and may consult with the Trust's outside legal counsel or counsel
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 approved
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 and good faith reliance upon such instructions or upon the advice of
the Trust's outside counsel. Forum and its approved 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 authorized person or persons of the Trust, (ii) any
instruction,
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information, data, records or documents provided Forum or its approved
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 authorized person
or persons of the Trust. 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 and approved subcontractors shall also be protected and indemnified in
recognizing share certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officers of the Trust, and the proper
countersignature of any former transfer agent or former registrar or of a
co-transfer agent or co-registrar of the Trust.
(d) 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) 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) 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) This Agreement shall become effective with respect to each Fund or
Class on the date first written above on. 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 a Fund
until terminated; (i) by the Board or by a vote of a majority of the outstanding
voting securities of the Fund and
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(ii) by a vote of a majority of Trustees of the Trust who are not parties to
this Agreement or interested persons of any such party (other than as Trustees
of the Trust).
(c) This Agreement may be terminated with respect to a Fund at any
time, without the payment of any penalty (i) by the Board on sixty (60) days'
written notice to Forum or (ii) by Forum on sixty (60) days' written notice to
the Trust. Any termination shall be effective as of the date specified in the
notice. 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.
(d) The obligations of Sections 3, 7(b), 8, 9, 10, 11(d), 13, 14, 15,
17(a) and 17(j); 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.
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.
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SECTION 15. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
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) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
(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.
(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 set forth above, or at such
other address as a party may have designated in writing, shall be deemed to have
been properly given.
-12-
(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. 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) 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) 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 and each party hereto warrants and represents that this Agreement, when
executed and delivered, will constitute a legal, valid and binding obligation of
the party, enforceable against the party 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.
(l) The terms and "affiliated person," "assignment" and "vote of a
majority of the outstanding voting securities" shall have the meanings ascribed
thereto in the 1940 Act.
(m) For purposes of this Agreement only, the term "employee," with
respect to Forum, shall meanan employee of any parent, subsidiary or affiliated
company of Forum.
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.
ICM SERIES TRUST
By: /S/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxx
President
FORUM SHAREHOLDER SERVICES, LLC
By: /S/ XXXX X. XXXXXXXX
-------------------------------------
Xxxx X. Xxxxxxxx
Director
-13-
ICM SERIES TRUST
TRANSFER AGENCY AND SERVICE AGREEMENT
APPENDIX A -- DATED JANUARY 1, 2002
FUNDS OF THE TRUST:
o ICM/Isabelle Small-Cap Value Fund
CLASSES OF THE TRUST:
o Investment Shares
o Institutional Shares
ICM SERIES TRUST
By: /S/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxx
President
FORUM SHAREHOLDER SERVICES, LLC
By: /S/ XXXX X. XXXXXXXX
-------------------------------------
Xxxx X. Xxxxxxxx
Director
-A1-
ICM SERIES TRUST
TRANSFER AGENCY AND SERVICE AGREEMENT
APPENDIX B -- DATED JANUARY 1, 2002
FEES AND EXPENSES
(I) BASE FEE
Fees per CUSIP of ICM/Isabelle Small-Cap Value Fund............................$1,000/month1
Fees per CUSIP of new Fund(s)..................................................$1,000/month2
(II) SHAREHOLDER ACCOUNT FEE
Fees per Open Fund Account (non-NSCC Networked Level 3 shareholder account)....$1.50/month
Fees per Open Fund Account (NSCC Networked Level 3 shareholder account)........$1.33/month
Fees per Closed Fund Account...................................................$0.166/month
(III) INTERNET RELATED FEES
Client Remote Inquiry..........................................................No Cost
Shareholder Remote Inquiry/Trading per Fund....................................$500/month
(IV) 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) statement, confirmation,
envelope and stationary stock, (ii) share certificates, (iii) printing
of checks and drafts, (iv) postage, (v) telecommunications, (vi)
banking services (DDA account, wire and ACH, check and draft clearing
and lock box fees and charges), (vii) NSCC Mutual Fund Service Member
fees and expenses, (viii) outside proxy solicitors and tabulators, (ix)
proxy solicitation fees and (x) microfilm and microfiche. In addition,
any other expenses 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.
(1) Base fee completely waived for ICM/Isabelle Small-Cap Value Fund (2 CUSIPs)
for fiscal year 2002.
(2) Base fee reduced for proposed new Fund to $500 per month until new Fund
reaches $10,000,000 in assets or is effective for 24 months, whichever
comes first. Thereafter, per CUSIP fee is $1,000 per month.
-B1-
