JOHNSONFAMILY FUNDS, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 1st day of November, 2000, by and between
JohnsonFamily Funds, Inc., a Maryland corporation, with its principal office and
place of business at 0000 X. Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 (the
"Company"), 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 Company 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 common stock, $0.0001 par value (the "Shares"), in
separate series and classes; and
WHEREAS, the Company offers shares in various series as listed in Appendix
A hereto (each such series, together with all other series subsequently
established by the Company 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 Company may in the future offer 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 Company in a Fund being herein
referred to as a "Class," and collectively as the "Classes");
WHEREAS, the Company 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 Company and Forum hereby agree as follows:
Section 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Company, 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 common stock of the Company 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 Company has delivered to Forum copies of
(i) the Company's Articles of Incorporation and Bylaws (collectively, as amended
from time to time, "Organic Documents"), (ii) the Company's Registration
Statement, as most recently amended, and 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 Company'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 Company under Rule 12b-1 under the 1940 Act
("Plan") and each current shareholder service plan or similar document adopted
by the Company ("Service Plan"), and (v) all procedures adopted by the Company
with respect to the Funds that are relevant to the duties to be performed by
Forum hereunder, and shall promptly furnish Forum with all amendments of or
supplements to the foregoing. The Company shall deliver to Forum a certified
copy of the resolution of the Board of Directors of the Company (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 Company 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") or, in the case
Fund's operating in a master-feeder or fund of funds structure, to the
of transfer agent or interestholder recordkeeper for the master
portfolios in which the Fund invests;
(iii) pursuant to purchase orders, issue the appropriate number
of Shares and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the
appropriate documentation therefor to the Custodian or, in the case of
Fund's operating in a master-feeder structure, to the transfer agent
or interestholder recordkeeper for the master fund in which the Fund
invests;
(v) as and when it receives monies paid to it by the Custodian
with respect to any redemption, pay the redemption proceeds as
required by the prospectus pursuant
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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 Company 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 Company 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 Company and
provide periodic reporting to the Company or its administrator or
other agent;
(xi) maintain records of account for and provide reports and
statements to the Company and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Company 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
Company, each Fund and each Class thereof, that are authorized, based
upon data provided to it by the Company, and are issued and
outstanding and provide the Company 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 Company 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
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from time to time by the Company, all pursuant to mutually acceptable
compensation and implementation agreements.
(c) The Company 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 Company's State registration status is solely
limited to the reporting of transactions to the Company, 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 Company or
its administrator or other agent.
(d) Forum shall establish and maintain facilities and procedures reasonably
acceptable to the Company 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 Company 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 Company assumes all
responsibility for ensuring that the Company 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 Company. All
references to any law in this Agreement shall be deemed to include reference to
the applicable rules and regulations promulgated under authority of the law and
all official interpretations of such law or rules or regulations.
Section 3. RECORDKEEPING
(a) Prior to the commencement of Forum's responsibilities under this
Agreement, if applicable, the Company shall deliver or cause to be delivered
over to Forum (i) an accurate list of Shareholders of the Company, 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 Company 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 Company to provide any
portion of the Materials or to provide any information in the Company's
possession or control reasonably needed by Forum to perform the services
described in this Agreement.
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(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 Company 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 Company on and in accordance with the Company's
request. The Company and the Company'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 Company, copies of any such records shall be provided promptly by
Forum to the Company or the Company's authorized representatives.
(c) Forum and the Company 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 Company, Forum will endeavor to notify the Company
and to secure instructions from an authorized officer of the Company as to such
inspection. Forum shall abide by the Company's instructions for granting or
denying the inspection; provided, however, that Forum may grant the inspection
without instructions if (i) Forum is advised by counsel to Forum that failure to
do so will result in liability to Forum, (ii) Forum promptly notifies the
Company that such disclosure is to be made.
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 Company'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 Company's counsel as to the legality and validity of the issuance, which
opinion may provide that it is contingent upon the filing by the Company 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 Company shall indemnify Forum for
any liability arising from the failure of the Company 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 Company 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
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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 Company 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 Company authorized to sign by the
Organic Documents of the Company and, if required by the Organic Documents,
shall bear the Company's seal or a facsimile thereof. Unless otherwise directed
by the Company, 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 Company.
(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 Company and fully indemnified by the Company to Forum's
satisfaction.
(c) In the event that the Company 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.
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(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
Company, on behalf of each Fund, agrees to pay Forum the fees set forth in
Clauses (i) and (ii) of Appendix B hereto. Fees will begin to accrue for each
Fund on the latter of the date of this Agreement or the date of commencement of
operations of the Fund. If fees begin to accrue in the middle of a month or if
this Agreement terminates before the end of any month, all fees for the period
from that date to the end of that month or from the beginning of that month to
the date of termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the effectiveness or
termination occurs. Upon the termination of this Agreement with respect to a
Fund, the Company shall pay to Forum such compensation as shall be payable prior
to the effective date of termination. The Company 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 Company, on behalf of each Fund, agrees to reimburse Forum for
the expenses set forth in Appendix B hereto. In addition, the Company, 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
Company's accounts and records by the Company's independent accountants or any
regulatory body outside of routine and normal periodic reviews. Should the
Company exercise its right to terminate this Agreement, the Company, 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.
(c) All fees and reimbursements are payable in arrears on a monthly basis
and the Company, 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.
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Section 8. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to the Company that:
(i) It is a limited liability company duly organized and
existing and in good standing under the laws of the State of Delaware;
(ii) It is duly qualified to carry on its business in the State
of Maine;
(iii) It is empowered under applicable laws and by its Operating
Agreement to enter into this Agreement and perform its duties under
this Agreement;
(iv) All requisite corporate proceedings have been taken to
authorize it to enter into this Agreement and perform its duties under
this Agreement;
(v) It has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of Forum, enforceable
against Forum in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties; and
(vii) It is registered as a transfer agent under Xxxxxxx 00X xx
xxx 0000 Xxx.
(x) The Company represents and warrants to Forum that:
(i) It is a corporation duly organized and existing and in
good standing under the laws 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 Company,
enforceable against the Company 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
8
and will continue to be made, with respect to all Shares of the Funds
and Classes of the Company being offered for sale.
Section 9. PROPRIETARY INFORMATION
(a) The Company 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 Company agrees to treat all Proprietary
Information as proprietary to Forum and further agrees that it shall not divulge
any Proprietary Information to any person or organization except as may be
provided under this Agreement.
(b) Forum acknowledges that the Shareholder list and all information
related to Shareholders furnished to Forum by the Company or by a Shareholder in
connection with this Agreement (collectively, "Customer Data") constitute
proprietary information of substantial value to the Company. In no event shall
Proprietary Information be deemed Customer Data. Forum agrees to treat all
Customer Data as proprietary to the Company 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 Company.
Section 10. INDEMNIFICATION
(a) Forum shall not be responsible for, and the Company 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 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 and do not constitute a breach of contract;
(ii) the Company's lack of good faith or the Company'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 Company or any
other person or firm on behalf of the Company, including but not
limited to any previous transfer agent or registrar;
(iv) the reasonable reliance on, or the carrying out by Forum
or its agents or subcontractors of, any instructions or requests of
the Company on behalf of the applicable Fund; and
9
(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 Company 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 breach of contract, lack of good faith, gross negligence or willful
misconduct with respect to the services performed under or in connection with
this Agreement.
(c) At any time Forum may apply to any officer of the Company for
instructions, and may consult with legal counsel to the Company 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 Company on behalf of the applicable Fund
for any action taken or omitted by it in reasonable reliance upon such
instructions or upon the advice of such counsel. Forum, its agents and
subcontractors shall be protected and indemnified in acting upon (i) any paper
or document furnished by or on behalf of the Company, 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 Company, and (iii) any authorization,
instruction, approval, item or set of data, or information of any kind
transmitted to Forum in person or by telephone, vocal telegram or other
electronic means, reasonably believed by Forum to be genuine and to have been
given by the proper person or persons. Forum shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the Company. 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
Company, and the proper countersignature of any former transfer agent or former
registrar or of a co-transfer agent or co-registrar of the Company.
(d) If the Company 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 Company has authorized or in the future may authorize Forum to act
as a "Mutual Fund Services Member" for the Company 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
10
to time. The Company 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 earlier of the date on which the Company's Registration Statement
relating to the Shares of the Fund or Class becomes effective or the date of the
commencement of operations of the Fund or Class. Upon effectiveness of this
Agreement, it shall supersede all previous agreements between the parties hereto
covering the subject matter hereof insofar as such Agreement may have been
deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund until
terminated; provided, that continuance is specifically approved at least
annually (i) by the Board or by a vote of a majority of the outstanding voting
securities of the Fund and (ii) by a vote of a majority of Directors of the
Company who are not parties to this Agreement or interested persons of any such
party (other than as Directors of the Company).
(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
Company. 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, 8, 9, 10, 14, 15, and 18 shall
survive any termination of this Agreement.
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Section 12. ADDITIONAL FUNDS AND CLASSES
In the event that the Company 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 Company may elect not to make any
such series or classes subject to this Agreement.
Section 13. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement nor
any rights or obligations under this Agreement may be assigned by either party
without the written consent of the other party. This Agreement shall inure to
the benefit of and be binding upon the parties and their respective permitted
successors and assigns. Forum may, without further consent on the part of the
Company, subcontract for the performance hereof with any entity, including
affiliated persons of Forum; provided however, that Forum shall be as fully
responsible to the Company for the acts and omissions of any subcontractor as
Forum is for its own acts and omissions.
Section 14. FORCE MAJEURE
Forum shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties (not caused by Forum), 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. Forum shall develop and maintain a plan for recovery from equipment,
transportation, communication system or power supply failures so as to minimize
service interruptions.
Section 15. LIMITATION OF SHAREHOLDER AND Director LIABILITY
The Directors of the Company and the shareholders of each Fund shall not be
liable for any obligations of the Company 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 Company or the Fund to
which Forum's rights or claims relate in settlement of such rights or claims,
and not to the Directors of the Company 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 Company 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. COMPLIANCE WITH LAWS, PROSPECTUS, ETC.
Forum agrees to comply in all material respects with all applicable
requirements of the Securities Act, the 1934 Act, the 1940 Act and any laws,
rules and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by Forum hereunder. Forum agrees to comply
with the provisions regarding the purchase, redemption and exchange of Shares
set forth in the then currently effective Prospectus and Statement of Additional
Information for the Funds. Forum acknowledges that it has received a copy of the
Company's NAV Error Correction Procedures (the "Policy") and it agrees to
reimburse a Fund for losses in accordance with the materiality guidelines set
forth therein in the event losses are due to the negligent acts or omissions of
Forum. Forum shall not be bound by any future amendments to the Policy unless
expressly consented to in writing by Forum.
Section 18. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party for
indirect 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 Company 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.
13
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, or at such other address as a
party may have designated in writing, shall be deemed to have been properly
given.
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. 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 Company are separate
and distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
(k) No affiliated person (as that term is defined in the 1940 Act),
employee, agent, director, officer or manager of Forum shall be liable at law or
in equity for Forum's obligations under this Agreement.
(l) 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.
(m) 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.
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.
JOHNSONFAMILY FUNDS, INC.
By:
----------------------------------
Officer name:
Title:
14
FORUM SHAREHOLDER SERVICES,
LLC
By:
----------------------------------
Xxxx X. Xxxxxxxx
Director
15
JOHNSONFAMILY FUNDS, INC.
TRANSFER AGENCY AND SERVICE AGREEMENT
Appendix A
Funds of the Company:
JohnsonFamily Small Cap Equity
JohnsonFamily Large Cap Equity
JohnsonFamily Intermediate Fixed Income
JohnsonFamily International Equity
Classes of the Company:
JOHNSONFAMILY FUNDS, INC.
By:
----------------------------------
Officer name:
Title:
FORUM SHAREHOLDER SERVICES,
LLC
By:
----------------------------------
Xxxx X. Xxxxxxxx
Director
A-1
