NCM CAPITAL INVESTMENT TRUST
DIVIDEND DISBURSING AND TRANSFER AGENT AGREEMENT
THIS DIVIDEND DISBURSING AND TRANSFER AGENT AGREEMENT ("Agreement") is hereby
made and entered into as of the 19th day of April 2007, by and between the NCM
CAPITAL INVESTMENT TRUST, a Delaware statutory trust ("Trust"), and NORTH
CAROLINA SHAREHOLDER SERVICES, LLC, a North Carolina limited liability company
d/b/a NC Shareholder Services ("Transfer Agent").
WHEREAS, the Trust is an open-end management investment company of the series
type which is registered under the Investment Company Act of 1940 ("1940 Act");
and
WHEREAS, the Transfer Agent is in the business of providing dividend disbursing,
transfer agent, and shareholder services to investment companies;
NOW THEREFORE, the Trust and the Transfer Agent do mutually promise and agree as
follows:
1. Employment. The Trust hereby employs Transfer Agent to act as dividend
disbursing and transfer agent for each series of shares of the Trust
listed on Schedule 1 (each a "Fund"). Transfer Agent, at its own
expense, shall render the services and assume the obligations herein
set forth subject to being compensated therefore as herein provided.
2. Delivery of Documents. The Trust has furnished the Transfer Agent with
copies properly certified or authenticated of each of the following:
a) The Trust's Declaration of Trust ("Trust Instrument") and
Certificate of Trust, as filed with the State of Delaware (such
Trust Instrument, as presently in effect and as it shall from
time to time be amended);
b) The Trust's By-Laws (such By-Laws, as presently in effect and as
they shall from time to time be amended, are herein called the
"By-Laws");
c) Resolutions of the Trust's board of trustees ("Board of
Trustees") authorizing the appointment of the Transfer Agent and
approving this Agreement; and
d) The Trust's registration statement ("Registration Statement") on
Form N-1A under the 1940 Act and under the Securities Act of 1933
as amended, ("1933 Act"), including all exhibits, relating to
shares of beneficial interest of, and containing the prospectus
("Prospectus") of, each Fund of the Trust (herein called the
"Shares") as filed with the Securities and Exchange Commission
("SEC") and all amendments thereto.
The Trust will also furnish the Transfer Agent with copies, properly certified
or authenticated, of all amendments of or supplements to the foregoing.
3. Duties of the Transfer Agent. Subject to the policies and direction of
the Board of Trustees, the Transfer Agent will provide day-to-day
supervision for the dividend disbursing, transfer agent, and
shareholder servicing operations of each of the Trust's Funds.
Services to be provided shall be in accordance with the Trust's
organizational and registration documents as listed in paragraph 2
hereof and with the Prospectus of each Fund of the Trust. The Transfer
Agent further agrees that it:
a) Will conform to all applicable rules and regulations of the SEC
and will, in addition, conduct its activities under this
Agreement in accordance with regulations of any other federal and
state agency that may now or in the future have jurisdiction over
its activities;
b) Will provide, at its expense, the non-executive personnel and
data processing equipment and software necessary to perform the
Shareholder Servicing functions shown on Exhibit A hereof; and
c) Will provide all office space and general office equipment
necessary for the dividend disbursing, transfer agent, and
shareholder servicing activities of the Trust except as may be
provided by third parties pursuant to separate agreements with
the Trust.
Notwithstanding anything contained in this Agreement to the contrary,
the Transfer Agent (including its directors, officers, employees, and
agents) shall not be required to perform any of the duties of, assume
any of the obligations or expenses of, or be liable for any of the acts
or omissions of, any investment advisor of a Fund of the Trust or other
third party subject to separate agreements with the Trust. The Transfer
Agent shall not be responsible hereunder for the administration of the
code of ethics of the Trust ("Code of Ethics") which shall be under the
responsibility of the investment advisors, except insofar as the Code
of Ethics applies to the personnel of the Transfer Agent. It is the
express intent of the parties hereto that the Transfer Agent shall not
have control over or be responsible for the placement (except as
specifically directed by a shareholder of the Trust), investment or
reinvestment of the assets of any Fund of the Trust. The Transfer Agent
may from time to time, subject to the approval of the Board of
Trustees, obtain at its own expense the services of consultants or
other third parties to perform part or all of its duties hereunder, and
such parties may be affiliates of the Transfer Agent.
4. Services Not Exclusive. The services furnished by the Transfer Agent
hereunder are not to be deemed exclusive, and the Transfer Agent shall
be free to furnish similar services to others so long as its services
under this Agreement are not impaired thereby.
5. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Transfer Agent hereby agrees that all records
that it maintains for the Trust are the property of the Trust and
further agrees to surrender promptly to the Trust any of such records
upon the Trust's request.
6. Expenses. During the term of this Agreement, the Transfer Agent will
furnish at its own expense its office space and the executive,
supervisory, and clerical personnel reasonably necessary to perform
its obligations under this Agreement. The Trust assumes and shall be
responsible for all other expenses of the Trust and/or Fund(s) not
otherwise allocated in this Agreement.
7. Compensation. For the services provided and the expenses assumed by
the Transfer Agent pursuant to this Agreement, the Trust will pay the
Transfer Agent and the Transfer Agent will accept as full compensation
the fees and expenses as set forth on Exhibit B attached hereto.
Special projects, not included herein and requested in writing by the
Board of Trustees, shall be completed by the Transfer Agent and
invoiced to the Trust on terms mutually agreed upon.
8.(a) Limitation of Liability. The Transfer Agent shall not be liable for
any loss, damage, or liability related to or resulting from the
placement (except as specifically directed by a Shareholder of the
Trust), investment, or reinvestment of assets in any Fund of the Trust
or the acts or omissions of any Fund's investment advisor or any other
third party subject to separate agreements with the Trust. Further,
the Transfer Agent shall not be liable for any error of judgment or
mistake of law or for any loss or damage suffered by the Trust in
connection with the performance of this Agreement or any agreement
with a third party, except a loss resulting directly from (i) a breach
of fiduciary duty on the part of the Transfer Agent with respect to
the receipt of compensation for services; or (ii) willful misfeasance,
bad faith, gross negligence, or reckless disregard on the part of the
Transfer Agent in the performance of its duties or from reckless
disregard by it of its duties under this Agreement.
8.(b) Indemnification of Transfer Agent. Subject to the limitations set
forth in this Subsection 8(b), and provided the Transfer Agent has
exercised reasonable customary care in the performance of its duties
under this Agreement, the Trust shall indemnify, defend, and hold
harmless (from the assets of the Fund or Funds to which the conduct in
question relates) the Transfer Agent against all loss, damage, and
liability, including but not limited to amounts paid in satisfaction
of judgments, in compromise or as fines and penalties, and expenses,
including reasonable accountants' and counsel fees, incurred by the
Transfer Agent in connection with the defense or disposition of any
action, suit, or other proceeding, whether civil or criminal, before
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any court or administrative or legislative body, related to or
resulting from this Agreement or the performance of services
hereunder, except with respect to any matter as to which it has been
determined that the loss, damage, or liability is a direct result of
(i) a breach of fiduciary duty on the part of the Transfer Agent with
respect to the receipt of compensation for services; or (ii) willful
misfeasance, bad faith, gross negligence, or reckless disregard on the
part of the Transfer Agent in the performance of its duties or from
reckless disregard by it of its duties under this Agreement (either
and both of the conduct described in clauses (i) and (ii) above being
referred to hereinafter as "Disabling Conduct"). A determination that
the Transfer Agent is entitled to indemnification may be made by (i) a
final decision on the merits by a court or other body before whom the
proceeding was brought that the Transfer Agent was not liable by
reason of Disabling Conduct, (ii) dismissal of a court action or an
administrative proceeding against the Transfer Agent for insufficiency
of evidence of Disabling Conduct, or (iii) a reasonable determination,
based upon a review of the facts, that the Transfer Agent was not
liable by reason of Disabling Conduct by (a) vote of a majority of a
quorum of Trustees who are neither "interested persons" of the Trust
as the quoted phrase is defined in Section 2(a)(19) of the 1940 Act
nor parties to the action, suit or other proceeding on the same or
similar grounds that is then or has been pending or threatened (such
quorum of such Trustees being referred to hereinafter as the
"Independent Trustees") or (b) an independent legal counsel approved
by the Trustees, including a majority of Independent Trustees,
(hereinafter referred to as an "independent legal counsel") in a
written opinion. Expenses, including accountants' and counsel fees so
incurred by the Transfer Agent (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties),
shall be paid from time to time by the Fund or Funds to which the
conduct in question related in advance of the final disposition of any
such action, suit or proceeding; provided, -------- that the Transfer
Agent shall have undertaken to repay the amounts so paid unless it is
ultimately determined that it is entitled to indemnification of such
expenses under this Subsection 8(b) and if (i) the Transfer Agent
shall have provided security for such undertaking, (ii) the Trust
shall be insured against losses arising by reason of any lawful
advances, or (iii) a majority of the Independent Trustees, or an
independent legal counsel in a written opinion, shall have determined,
based on a review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that the Transfer
Agent ultimately will be entitled to indemnification hereunder.
As to any matter disposed of by a compromise payment by the Transfer
Agent referred to in this Subsection 8(b), pursuant to a consent decree
or otherwise, no such indemnification either for said payment or for
any other expenses shall be provided unless such indemnification shall
be approved (i) by a majority of the Independent Trustees or (ii) by an
independent legal counsel in a written opinion. Approval by the
Independent Trustees pursuant to clause (i) shall not prevent the
recovery from the Transfer Agent of any amount paid to the Transfer
Agent in accordance with either of such clauses as indemnification of
the Transfer Agent is subsequently adjudicated by a court of competent
jurisdiction not to have acted in good faith in the reasonable belief
that the Transfer Agent's action was in or not opposed to the best
interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in its conduct
under the Agreement.
The right of indemnification provided by this Subsection 8(b) shall not
be exclusive of or affect any of the rights to which the Transfer Agent
may be entitled. Nothing contained in this Subsection 8(b) shall affect
any rights to indemnification to which Trustees, officers, or other
personnel of the Trust, and other persons may be entitled by contract
or otherwise under law, nor the power of the Trust to purchase and
maintain liability insurance on behalf of any such person.
The Board of Trustees of the Trust shall take all such action as may be
necessary and appropriate to authorize the Trust hereunder to pay the
indemnification required by this Subsection 8(b) including, without
limitation, to the extent needed, to determine whether the Transfer
Agent is entitled to indemnification hereunder and the reasonable
amount of any indemnity due it hereunder, or employ independent legal
counsel for that purpose.
The provisions contained in Section 8 shall survive the expiration or
other termination of this Agreement, shall be deemed to include and
protect the Transfer Agent and its directors, officers, employees, and
agents and shall inure to the benefit of its/their respective
successors, assigns, and personal representatives.
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9. Confidentiality. The Transfer Agent agrees, on behalf of itself and
its officers, directors, agents, and employees, to treat as
confidential all records and other information relating to the Trust
and its prior, present, and future shareholders ("Confidential
Information") and to not use or disclose the Confidential Information
for any purpose other than in performance of its responsibilities and
duties under the Agreement. Notwithstanding the forgoing, the Transfer
Agent may divulge the Confidential Information (i) with the prior
written consent of the Trust; (ii) when the Transfer Agent, in good
faith, believes it may be exposed to civil or criminal contempt
proceedings for failure to comply with court orders or when requested
by duly constituted governmental authorities or the National
Association of Securities Dealers pursuant to their respective legal
authority, upon prior written notice to the Trust, unless prohibited
by the court order or governmental authority; (iii) to the Trust's
investment adviser(s), administrator, distributor, custodian, outside
legal counsel, or independent public accountants, in the ordinary
course of business, to the extent necessary for those service
providers to perform their respective services to the Trust; (iv) to
the Trust, when requested by the Trust; or (v) when requested by a
shareholder, but only with respect to Confidential Information that
specifically relates to such shareholder and the shareholder's
account. For purposes of this section, the following records and other
information shall not be considered Confidential Information: any
record or other information relating to the Trust and its prior,
present, and future shareholders (a) which is or becomes publicly
available through no negligent or unauthorized act or omission by the
Transfer Agent; (b) which is disseminated by the Trust in a public
filing with the SEC or posted on the website of the Trust, the Fund,
the Fund's investment adviser, or any of the Fund's other service
providers for general public review; (c) which is lawfully obtained
from third parties who are not under an obligation of confidentiality
to the Trust or its prior, present, and future shareholders; or (d)
previously known by the Transfer Agent prior to the date of the
Agreement.
10. Duration and Termination. This Agreement shall become effective as of
the date hereof and shall thereafter continue in effect unless
terminated as herein provided. This Agreement may be terminated by
either party hereto (without penalty) at any time by giving not less
than 60 days' prior written notice to the other party hereto. Upon
termination of this Agreement, the Trust shall pay to the Transfer
Agent such compensation as may be due as of the date of such
termination, and shall likewise reimburse the Transfer Agent for any
out-of-pocket expenses and disbursements reasonably incurred by the
Transfer Agent to such date.
11. Amendment. This Agreement may be amended by mutual written consent of
the parties. If, at any time during the existence of this Agreement,
the Trust deems it necessary or advisable in the best interests of the
Trust that any amendment of this Agreement be made in order to comply
with the recommendations or requirements of the SEC or state
regulatory agencies or other governmental authority, or to obtain any
advantage under state or federal laws, and shall notify the Transfer
Agent of the form of Amendment which it deems necessary or advisable
and the reasons therefore, and if the Transfer Agent declines to
assent to such amendment, the Trust may terminate this Agreement
forthwith.
12. Notice. Any notice that is required to be given by the parties to each
other under the terms of this Agreement shall be in writing and will
be deemed sufficient if personally delivered or sent by registered or
certified mailed, postage prepaid, address to the other party at the
principal place of business of such party. Notices shall be effective
upon delivery.
13. Construction. This Agreement shall be governed and enforced in
accordance with the laws of the State of North Carolina without regard
to the principles of the conflict of laws or the choice of laws. If
any provision of this Agreement, or portion thereof, shall be
determined to be void or unenforceable by any court of competent
jurisdiction, then such determination shall not affect any other
provision of this Agreement, or portion thereof, all of which other
provisions and portions thereof shall remain in full force and effect.
If any provision of this Agreement, or portion thereof, is capable of
two interpretations, one of which would render the provision, or
portion thereof, void and the other of which would render the
provision, or portion thereof, valid, then the provision, or portion
thereof, shall have the meaning that renders it valid.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by their duly authorized officers effective as of the date indicated above.
NCM CAPITAL INVESTMENT TRUST
/s/ Xxxxx X. Xxxxx
By: ________________________________________
Name: Xxxxx X. Xxxxx
Title: Chairman
NORTH CAROLINA SHAREHOLDER SERVICES, LLC
D/B/A NC SHAREHOLDER SERVICES
By: /s/ Xxxxx X. Xxxxxxx
________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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Exhibit A
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SHAREHOLDER SERVICING FUNCTIONS
(1) Process new accounts.
(2) Process purchases of Fund shares, both initial and subsequent in accordance
with conditions set forth in the Fund's prospectus.
(3) Transfer shares of capital stock to an existing account or to a new account
upon receipt of required documentation in good order.
(4) Distribute dividends and/or capital gain distributions. This includes
disbursement as cash or reinvestment and to change the disbursement option
at the request of shareholders.
(5) Process exchanges between funds (process and direct purchase/redemption and
initiate new account or process to existing account).
(6) Make miscellaneous changes to records, including, but not necessarily
limited to, address changes and changes in plans (such as systematic
withdrawal, dividend reinvestment, etc.).
(7) Prepare and mail a year-to-date confirmation and statement as each
transaction is recorded in a shareholder account as follows: original to
shareholder. Duplicate confirmations to be available on request within
current year.
(8) Handle telephone calls and correspondence in reply to shareholder requests
except those items otherwise set forth herein.
(9) Daily control and reconciliation of Fund shares.
(10) Prepare address labels or confirmations for four reports to shareholders
per year.
(11) Mail and tabulate proxies for one Meeting of Shareholders annually,
including preparation of certified shareholder list and daily report to
Fund management, if required.
(12) Prepare, with the assistance of the Trust's accountants, and mail annual
Form 1099 and 5498 to shareholders to whom dividends or distributions are
paid, with a copy for the IRS.
(13) Provide readily obtainable data that may from time to time be requested for
audit purposes. (14) Replace lost or destroyed checks. (15) Continuously
maintain all records for active and closed accounts according to the
Investment Company Act of 1940 and regulations provided thereunder.
(14) Replace lost or destroyed checks.
(15) Continuously maintain all records for active and closed acocunts according
to the Investment Company Act of 1940 and regulations provided thereunder.
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Exhibit B
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TRANSFER AGENT'S COMPENSATION SCHEDULE
For the services delineated in the DIVIDEND DISBURSING AND TRANSFER AGENT
AGREEMENT, the Transfer Agent shall be compensated monthly, according to the
following fee schedule.
Shareholder servicing fee:
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$15.00 per shareholder per year per fund
Minimum fee of $1,750 per month per fund, plus $500 per month for each
additional class of shares.
In addition, the Transfer Agent shall be entitled to reimbursement of actual
out-of-pocket expenses incurred by the Transfer Agent on behalf of the Trust or
the Fund.
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Schedule 1
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SERIES OF THE TRUST
NCM Capital Mid-Cap Growth Fund
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