EXHIBIT 9(b)
THE NEVIS FUND, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 29th day of June, 1998, by and between The Nevis
Fund, Inc., a Maryland corporation, with its principal office and place of
business at 000 Xx. Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Fund"), 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 Fund is authorized to issue shares of common stock ("Shares");
and
WHEREAS, the Fund 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 Fund and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) Appointment. The Fund hereby appoints Forum to act as, and Forum
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agrees to act as, (i) transfer agent for the authorized and issued 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
("Shareholders") and set out in the Prospectus (as defined below) of the Fund,
including, without limitation, any periodic investment plan or periodic
withdrawal program.
(b) Document Delivery. The Fund has delivered to Forum copies of (i) the
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Fund's Charter and Bylaws (collectively, as amended from time to time, "Organic
Documents"), (ii) the Fund'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 Fund's current prospectus and statement of additional information of
the Fund (collectively, as currently in effect and as amended or supplemented,
the "Prospectus"), and (iv) each current plan of distribution or similar
document adopted by the Fund under Rule 12b-1 under the 1940 Act ("Plan") and
each current shareholder service plan or similar document adopted by the Fund
("Service Plan"), and shall promptly furnish Forum with all amendments of or
supplements to the foregoing. The Fund shall deliver to Forum a certified copy
of the resolution of the Board of Directors of the Fund (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
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from time to time by agreement between the Fund 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 withholding taxes on
U.S. resident and non-resident alien accounts, (D) preparing and filing
U.S. Treasury Department Forms 1099 and other appropriate forms required by
federal authorities with respect to distributions for Shareholders, (E)
preparing and mailing confirmation forms (with confirming Prospectuses when
appropriate) and statements of account to Shareholders for all purchases
and redemptions of Shares and other confirmable transactions in Shareholder
accounts, (F) preparing and mailing activity statements for Shareholders,
and (G) 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 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 case the Fund
operates 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;
(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 Fund
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 Fund 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,
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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 Fund and provide periodic reporting to the
Fund or its administrator or other agent;
(xi) maintain records of account for and provide reports and statements
to the Fund and Shareholders as to the foregoing;
(xii) record the issuance of Shares 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 that are authorized, based
upon data provided to it by the Fund, and are issued and outstanding and
provide the Fund 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 Fund to calculate the total
number of Shares sold in each State.
(b) Other Services. Forum shall provide the following additional services
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on behalf of the Fund and such other services agreed to in writing by the Fund
and Forum: monitor and make appropriate filings with respect to the escheatment
laws of the various states and territories of the United States.
(c) Blue Sky Matters. The Fund or its administrator or other agent (i)
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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 Fund's State registration status is solely
limited to the reporting of transactions to the Fund, 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 Fund or its
administrator or other agent.
(d) Safekeeping. Forum shall establish and maintain facilities and
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procedures reasonably acceptable to the Fund 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 Fund for safekeeping of all records
maintained by Forum pursuant to this Agreement.
(e) Cooperation With Accountants. Forum shall cooperate with the Fund's
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independent public accountants and shall take reasonable action to make all
necessary information available to the accountants for the performance of the
accountants' duties.
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(f) Responsibility for Compliance With Law. Except with respect to
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Forum's duties as set forth in this Section 2 and except as otherwise
specifically provided herein, the Fund assumes all responsibility for ensuring
that the Fund 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 Fund. 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) Predecessor Records. Prior to the commencement of Forum's
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responsibilities under this Agreement, if applicable, the Fund shall deliver or
cause to be delivered over to Forum (i) an accurate list of Shareholders of the
Fund, 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 Fund shall on behalf of the
Fund 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 Fund to provide any portion of the
Materials or to provide any information in the Fund'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
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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 Fund 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 Fund on and in
accordance with the Fund's request. The Fund and the Fund'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 Fund, copies of any such records shall
be provided promptly by Forum to the Fund or the Fund's authorized
representatives.
(c) Confidentiality of Records. Forum and the Fund agree that all books,
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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
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for the inspection of the Shareholder records of the Fund, Forum will endeavor
to notify the Fund and to secure instructions from an authorized officer of the
Fund as to such inspection. Forum shall
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abide by the Fund'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) Issuance of Shares. Forum shall make original issues of Shares in
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accordance with the Prospectus only upon receipt of (i) instructions requesting
the issuance, (ii) a certified copy of a resolution of the Board authorizing the
issuance, (iii) necessary funds for the payment of any original issue tax
applicable to such Shares, and (iv) an opinion of the Fund's counsel as to the
legality and validity of the issuance, which opinion may provide that it is
contingent upon the filing by the Fund 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 Fund shall indemnify Forum for any liability arising from the failure
of the Fund to comply with that section or the rules thereunder.
(b) Transfer of Shares. Transfers of Shares shall be registered on the
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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
Maryland or any other statutes that, in the opinion of Forum's counsel, protect
Forum and the Fund 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 Fund shall furnish to Forum a supply of blank Share
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certificates of the Fund 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 Fund authorized to sign by the Organic
Documents of the Fund and, if required by the Organic Documents, shall bear the
Fund's seal or a facsimile thereof. Unless otherwise directed by the Fund,
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
Fund.
(b) Endorsement; Transportation. New Share certificates shall be issued
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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 Fund and fully indemnified
by the Fund to Forum's satisfaction.
(c) Non-Issuance of Certificates. In the event that the Fund informs
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Forum that the
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Fund 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 the Fund.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Purchase Orders. Shares shall be issued in accordance with the terms
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of the Prospectus after Forum or its agent receives either:
(i) (A) an instruction directing investment in the Fund, (B) a check
(other than a third party check) or a wire or other electronic payment in
the amount designated in the instruction and (C), in the case of an initial
purchase, a completed account application; or
(ii) the information required for purchases pursuant to a selected dealer
agreement, processing organization agreement, or a similar contract with a
financial intermediary.
(b) Distribution Eligibility. Shares issued after receipt of a completed
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purchase order shall be eligible to receive distributions of the Fund at the
time specified in the Prospectus.
(c) Determination of Federal Funds. Shareholder payments shall be
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considered Federal Funds no later than on the day indicated below unless other
times are noted in the Prospectus:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System, on
the second Fund Business Day following receipt of the check; and
(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,
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the Fund, on behalf of the Fund, agrees to pay Forum the fees set forth in
Clauses (i) and (ii) of Appendix A hereto. Fees will begin to accrue for the
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, the Fund 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
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to this Agreement, the Fund agrees to reimburse Forum for the expenses set forth
in Appendix A hereto.
(c) Payment. All fees and reimbursements are payable in arrears on a
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monthly basis and the 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
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warrants to the Fund 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.
(vii) It is registered as a transfer agent under Section 17A of the 1934
Act.
(viii) It has conducted an inventory of the hardware, software and
embedded microcontrollers in noncomputer equipment (the "Computer Systems")
used by it in its business in order to determine whether the Computer
Systems are Year 2000 compliant and has determined that its Computer
Systems are Year 200 compliant. As used in this Agreement, the phrase
"Year 2000 compliant" means technology, including but not limited to,
information technology embedded systems or any other electro-mechanical or
processor-based system, when used in connection with its associated
documentation, that is capable of accurately processing, providing, or
receiving date data from, into, and between the twentieth and twenty-first
centuries, and the years 1999 and 2000, including leap year calculations,
provided that all other technology properly exchanges date data with it.
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(b) Representations and Warranties of the Fund. The Fund represents and
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warrants to Forum that:
(i) It is a corporation duly organized and existing and in good standing
under the laws of the State of Maryland.
(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.
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Fund, enforceable against the
Fund 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 appropriate State securities law filings have been made with
respect to Shares of the Fund being offered for sale.
SECTION 9. PROPRIETARY INFORMATION
(a) Proprietary Information of Forum. The Fund acknowledges that the
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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 Fund 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 Fund. Forum acknowledges that the
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Shareholder list and all information related to Shareholders furnished to Forum
by the Fund or by a Shareholder in connection with this Agreement (collectively,
"Customer Data") constitute proprietary information of substantial value to the
Fund. In no event shall Proprietary Information be deemed Customer Data. Forum
agrees to treat all Customer Data as proprietary to the Fund 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 Fund.
SECTION 10. INDEMNIFICATION
(a) Indemnification of Forum. Forum shall not be responsible for, and the
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Fund shall
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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 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 Fund's lack of good faith or the Fund's gross negligence or
willful misconduct;
(iii) the reasonable 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 Fund or any other person or
firm on behalf of the Fund;
(iv) the reasonable reliance on, or the carrying out by Forum or its
agents or subcontractors of, any instructions or requests of the 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 Fund. Forum shall indemnify and hold the Fund
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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 breach of any representation or warranty in Section 8(a) or
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 Fund for
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instructions, and may consult with legal counsel to the Fund 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 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 Fund, 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
Fund, 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
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any person, until receipt of written notice thereof from the Fund. 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 Fund, and the proper
countersignature of any former transfer agent or former registrar or of a co-
transfer agent or co-registrar of the Fund.
(d) Reliance on Electronic Instructions. If the Fund has the ability to
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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 Fund has authorized or in the
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future may authorize Forum to act as a "Mutual Fund Services Member" for the
Fund. 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
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NSCC or such other similar publication as may exist from time to time. The Fund
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
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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, TERMINATION AND SURVIVAL
(a) Effectiveness. This Agreement shall become effective with respect to
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the Fund on the date first above written. 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 Fund.
(b) Termination. This Agreement may be terminated at any time, without
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the payment of any penalty (i) by the Board on 60 days' written notice to Forum
or (ii) by Forum on 60 days' written notice to the Fund. 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
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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.
(c) Survival. The obligations of Sections 7, 9 and 10 shall survive any
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termination of this Agreement.
SECTION 12. ADDITIONAL FUNDS AND CLASSES. [INTENTIONALLY LEFT BLANK]
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, upon prior
consent of the Fund, subcontract for the performance hereof with any entity,
including affiliated persons of Forum; provided however, that Forum shall be as
fully responsible to the Fund for the acts and omissions of any subcontractor as
Forum is for its own acts and omissions.
SECTION 14. DISASTER RECOVERY. Forum shall enter into and shall maintain
in effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment failures,
Forum shall, at no additional cost to the Fund, take reasonable steps to
minimize service interruptions. Forum shall have no liability with respect to
the loss of data or service interruptions caused by equipment failure, provided
such loss or interruption is not caused by Forum acting in good faith without
gross negligence.
SECTION 15. FORCE MAJEURE. Except as provided in Section 14, 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; provided, however, that any failure or
delay by Forum in the performance of its obligations under this Agreement
arising out of or caused by, directly or indirectly, its failure to be Year 2000
complaint shall not constitute a circumstance beyond its reasonable control.
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 Fund or any Shareholder or any purchase of Shares,
excluding taxes assessed against Forum for compensation received by it under
this Agreement.
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SECTION 17. MISCELLANEOUS
(a) No Consequential Damages. Neither party to this Agreement shall be
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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
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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
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thereof interpreted under and in accordance with the laws of the State of
Maryland.
(d) Entire Agreement. This Agreement constitutes the entire agreement
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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
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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
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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
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included for convenience only and are not to be used to construe or interpret
this Agreement.
(h) Notices. Notices, requests, instructions and communications received
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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
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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) Nonliability of Affiliates. No affiliated person (as that term is
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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.
(k) Representation of Signatories. Each of the undersigned expressly
-----------------------------
warrants and represents that they have full power and authority to sign this
Agreement on behalf of the party indicated and that their signature will bind
the party indicated to the terms hereof.
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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.
THE NEVIS FUND, INC.
BY:
XXXXX X. XXXXXXXXXX, III
PRESIDENT
FORUM SHAREHOLDER SERVICES, LLC
BY:
XXXX X. XXXXXXXX
DIRECTOR
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THE NEVIS FUND, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
APPENDIX A
Fees and Expenses
(i) Base Fee:
Fees per Fund with
one Class $24,000/yr.
Fees per Fund with
more than one Class $24,000/yr. plus $12,000/yr. per each class above one
The rates set forth above shall remain fixed through December 31, 1998.
On January 1, 1999, and on each successive January 1, the rates may be
adjusted automatically by Forum without action of the Fund to reflect
changes in the Consumer Price Index for the preceding calendar year, as
published by the U.S. Department of Labor, Bureau of Labor Statistics.
Forum shall notify the Fund each year of the new rates, if applicable.
(ii) Shareholder Account Fees:
$25 per Shareholder account per year.
Shareholder account fees are based upon the number of Shareholder
accounts as of the last Fund Business Day of the prior month.
(iii) Out-Of-Pocket and Related Expenses
The 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 Fund, will be reimbursed by the Fund.
