AMERINDO FUNDS, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 20TH day of September, 1999, by and between
Amerindo Funds, Inc., a Maryland corporation , with its principal office and
place of business at Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000 (the
"Corporation"), 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 Corporation is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets, and is authorized to divide those series into
separate classes; and
WHEREAS, the Corporation offers shares in various series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Corporation and made subject to this Agreement in accordance
with Section 13, being herein referred to as a "Fund," and collectively as the
"Funds") and the Corporation offers shares of various classes of each Fund as
listed in Appendix A hereto (each such class together with all other classes
subsequently established by the Corporation in a Fund being herein referred to
as a "Class," and collectively as the "Classes"); and
WHEREAS, the Corporation on behalf of the Funds desires to appoint Forum as
its transfer agent and dividend disbursing agent and Forum desires to accept
such appointment;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Corporation and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) Appointment. The Corporation, on behalf of the Funds, hereby appoints
Forum to act as, and Forum agrees to act as, (i) transfer agent for the
authorized and issued shares of beneficial interest of the Corporation
representing interests in each of the respective Funds and Classes thereof
("Shares"), (ii) dividend disbursing agent and (iii) agent in connection with
any accumulation, open-account or similar plans provided to the registered
owners of shares of any of the Funds ("Shareholders") and set out in the
currently effective prospectuses and statements of additional information
(collectively "prospectus") of the applicable Fund, including, without
limitation, any periodic investment plan or periodic withdrawal program.
(b) Document Delivery. The Corporation has delivered to Forum copies of (i)
the Corporation's Articles of Incorporation and Bylaws (collectively, as amended
from time to time, "Organic Documents"), (ii) the Corporation'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 Corporation'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 Corporation under Rule 12b-1
under the 1940 Act ("Plan") and each current shareholder service plan or similar
document adopted by the Corporation ("Service Plan"), and (v) all procedures
adopted by the Corporation with respect to the Funds (i.e., repurchase agreement
procedures), and shall promptly furnish Forum with all amendments of or
supplements to the foregoing. The Corporation shall deliver to Forum a certified
copy of the resolution of the Board of Corporationees of the Corporation (the
"Board") appointing Forum and authorizing the execution and delivery of this
Agreement.
SECTION 2. DUTIES OF FORUM
(a) Services. Forum agrees that in accordance with procedures established
from time to time by agreement between the Corporation on behalf of each of the
Funds, as applicable, and Forum, Forum will perform the following services:
(i) provide the services of a transfer agent, dividend disbursing agent
and, as relevant, agent in connection with accumulation, open-account or
similar plans (including without limitation any periodic investment plan or
periodic withdrawal program) that are customary for open-end management
investment companies including: (A) maintaining all Shareholder accounts,
(B) preparing Shareholder meeting lists, (C) mailing proxies to
Shareholders, (D) mailing Shareholder reports and prospectuses to current
Shareholders, (E) withholding taxes on U.S. resident and non-resident alien
accounts, (F) preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required by federal authorities with respect to
distributions for Shareholders, (G) preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in Shareholder
accounts, (H) preparing and mailing activity statements for Shareholders,
and (I) providing Shareholder account information;
(ii) receive for acceptance orders for the purchase of Shares and promptly
deliver payment and appropriate documentation therefor to the custodian of
the applicable Fund (the "Custodian") or, in the case of Fund's operating
in a master-feeder or fund of funds structure, to the transfer agent or
interestholder recordkeeper for the master portfolios in which the Fund
invests;
(iii) pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the appropriate
documentation therefor to the Custodian or, in the case of Fund's operating
in a master-feeder or fund of funds structure, to the transfer agent or
interestholder recordkeeper for the master portfolios in which the Fund
invests;
(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;
-2-
952684.1
(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
Corporation 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 Corporation and, at the option of Forum, issue
replacement certificates in place of mutilated share certificates upon
presentation thereof without requiring indemnification;
(ix) receive from Shareholders or debit Shareholder accounts for sales
commissions, including contingent deferred, deferred and other sales
charges, and service fees (i.e., wire redemption charges) and prepare and
transmit payments to underwriters, selected dealers and others for
commissions and service fees received;
(x) track shareholder accounts by financial intermediary source and
otherwise as requested by the Corporation and provide periodic reporting to
the Corporation or its administrator or other agent;
(xi) maintain records of account for and provide reports and statements to
the Corporation and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Corporation 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
Corporation, each Fund and each Class thereof, that are authorized, based
upon data provided to it by the Corporation, and are issued and outstanding
and provide the Corporation 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 Corporation to calculate the
total number of Shares of each Fund and Class thereof sold in each State.
(b) Other Services. Forum shall provide the following additional services
on behalf of the Corporation and such other services agreed to in writing by the
Corporation and Forum:
(i) monitor and make appropriate filings with respect to the escheatment
laws of the various states and territories of the United States; and
(ii) receive and tabulate proxy votes/oversee the activities of proxy
solicitation firms and coordinate the tabulation of proxy and shareholder
meeting votes.
-3-
952684.1
(c) Blue Sky Matters. The Corporation 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 Corporation's State registration
status is solely limited to the reporting of transactions to the Corporation,
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 Corporation or its administrator or other agent.
(d) Safekeeping. Forum shall establish and maintain facilities and
procedures reasonably acceptable to the Corporation 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 Corporation for safekeeping of all
records maintained by Forum pursuant to this Agreement.
(e) Cooperation With Accountants. Forum shall cooperate with each Fund's
independent public accountants and shall take reasonable action to make all
necessary information available to the accountants for the performance of the
accountants' duties.
(f) Responsibility for Compliance With Law. Except with respect to Forum's
duties as set forth in this Section 2 and except as otherwise specifically
provided herein, the Corporation assumes all responsibility for ensuring that
the Corporation 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 Corporation. 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
responsibilities under this Agreement, if applicable, the Corporation shall
deliver or cause to be delivered over to Forum (i) an accurate list of
Shareholders of the Corporation, 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
Corporation 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 Corporation to provide any portion of the Materials or to
provide any information in the Corporation's possession or control reasonably
needed by Forum to perform the services described in this Agreement.
-4-
952684.1
(b) Recordkeeping. Forum shall keep records relating to the services to be
performed under this Agreement, in the form and manner as it may deem advisable
and as required by applicable law. To the extent required by Section 31 of the
1940 Act, and the rules thereunder, Forum agrees that all such records prepared
or maintained by Forum relating to the services to be performed by Forum under
this Agreement are the property of the Corporation 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 Corporation on and
in accordance with the Corporation's request. The Corporation and the
Corporation'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
Corporation, copies of any such records shall be provided promptly by Forum to
the Corporation or the Corporation's authorized representatives.
(c) Confidentiality of Records. Forum and the Corporation agree that all
books, records, information, and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by law.
(d) Inspection of Records by Others. In case of any requests or demands for
the inspection of the Shareholder records of the Corporation, Forum will
endeavor to notify the Corporation and to secure instructions from an authorized
officer of the Corporation as to such inspection. Forum shall abide by the
Corporation'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 of each
Fund and Class thereof in accordance with the Corporation'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 Corporation's counsel as to the legality and
validity of the issuance, which opinion may provide that it is contingent upon
the filing by the Corporation 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
Corporation shall indemnify Forum for any liability arising from the failure of
the Corporation to comply with that section or the rules thereunder.
(b) Transfer of Shares. Transfers of Shares of each Fund and Class thereof
shall be registered on the Shareholder records maintained by Forum. In
registering transfers of Shares, Forum may rely upon the Uniform Commercial Code
as in effect in the State of Delaware or any other statutes that, in the opinion
of Forum's counsel, protect Forum and the Corporation 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
-5-
952684.1
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 Corporation 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 Corporation authorized to
sign by the Organic Documents of the Corporation and, if required by the Organic
Documents, shall bear the Corporation's seal or a facsimile thereof. Unless
otherwise directed by the Corporation, 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 Corporation.
(b) Endorsement; Transportation. New Share certificates shall be issued by
Forum upon surrender of outstanding Share certificates in the form deemed by
Forum to be properly endorsed for transfer and satisfactory evidence of
compliance with all applicable laws relating to the payment or collection of
taxes. Forum shall forward Share certificates in "non-negotiable" form by
first-class or registered mail, or by whatever means Forum deems equally
reliable and expeditious. Forum shall not mail Share certificates in
"negotiable" form unless requested in writing by the Corporation and fully
indemnified by the Corporation to Forum's satisfaction.
(c) Non-Issuance of Certificates. In the event that the Corporation informs
Forum that any Fund or Class thereof does not issue share certificates, Forum
shall not issue any such share certificates and the provisions of this Agreement
relating to share certificates shall not be applicable with respect to those
Funds or Classes thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Purchase Orders. Shares shall be issued in accordance with the terms of
a Fund's or Class' prospectus after Forum or its agent receives either:
(i) (A) an instruction directing investment in a Fund or Class, (B) a check
(other than a third party check) or a wire or other electronic payment in
the amount designated in the instruction and (C), in the case of an initial
purchase, a completed account application; or
(ii) the information required for purchases pursuant to a selected dealer
agreement, processing organization agreement, or a similar contract with a
financial intermediary.
(b) Distribution Eligibility. Shares issued in a Fund after receipt of a
completed purchase order shall be eligible to receive distributions of the Fund
at the time specified in the prospectus pursuant to which the Shares are
offered.
-6-
952684.1
(c) Determination of Federal Funds. Shareholder payments shall be
considered Federal Funds no later than on the day indicated below unless other
times are noted in the prospectus of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System, on
the second Fund Business Day following receipt of the check; and
(iv) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as Forum is credited with Federal
Funds with respect to that check.
SECTION 7. FEES AND EXPENSES
(a) Fees. For the services provided by Forum pursuant to this Agreement,
the Corporation, 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 Corporation shall pay to Forum such compensation as shall be payable
prior to the effective date of termination.
(b) Expenses. In connection with the services provided by Forum pursuant to
this Agreement, the Corporation, on behalf of each Fund, agrees to reimburse
Forum for the expenses set forth in Appendix B hereto. In addition, the
Corporation, on behalf of the applicable Fund, shall reimburse Forum for all
expenses and employee time (at 150% of salary) attributable to any review of the
Corporation's accounts and records by the Corporation's independent accountants
or any regulatory body outside of routine and normal periodic reviews. Should
the Corporation exercise its right to terminate this Agreement, the Corporation,
on behalf of the applicable Fund, shall reimburse Forum for all 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) Payment. All fees and reimbursements are payable in arrears on a
monthly basis and the Corporation, 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.
-7-
952684.1
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of Forum. Forum represents and warrants
to the Corporation 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) Its information technology systems will be Year 2000 compliant in
accordance with the Year 2000 compliance requirements of the SEC and the
National Association of Securities Dealers ("NASD"). Forum shall notify
Corporation if there is a material adverse change in the status of its
informational technology systems or upon having a reasonable basis for
believing that its informational technology systems will not be Year 2000
Compliant. "Year 2000 Compliant" or "Year 2000 Compliance" shall mean that
the systems or software in question shall be able to accurately process
date or date-related data, without creating any logical or mathematical
inconsistencies, from, into and between the twentieth and twenty-first
centuries, when used in accordance with the specifications set forth for
such systems or software; provided, however, that Forum shall not be
responsible for any failure of its systems or software to be Year 2000
Compliant which is caused by or related to the interaction or interface of
such systems or software with the systems or software of a third party
which are not Year 2000 Compliant.
(b) Representations and Warranties of the Corporation. The Corporation
represents and warrants to Forum that:
(i) It is a corporation duly organized and existing and in good standing
under the laws of Maryland.
-8-
952684.1
(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 Corporation, enforceable against the
Corporation in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties.
(vi) A registration statement under the Securities Act is currently
effective and will remain effective, and appropriate State securities law
filings have been made and will continue to be made, with respect to all
Shares of the Funds and Classes of the Corporation being offered for sale.
SECTION 9. PROPRIETARY INFORMATION
(a) Proprietary Information of Forum. The Corporation 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 Corporation
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 Corporation. Forum acknowledges that the
Shareholder list and all information related to Shareholders furnished to Forum
by the Corporation or by a Shareholder in connection with this Agreement
(collectively, "Customer Data") constitute proprietary information of
substantial value to the Corporation. In no event shall Proprietary Information
be deemed Customer Data. Forum agrees to treat all Customer Data as proprietary
to the Corporation 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 Corporation.
SECTION 10. INDEMNIFICATION
(a) Indemnification of Forum. Forum shall not be responsible for, and the
Corporation 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:
-9-
952684.1
(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 Corporation's lack of good faith or the Corporation's gross
negligence or willful misconduct;
(iii) the reliance on or use by Forum or its agents or subcontractors of
information, records, documents or services which have been prepared,
maintained or performed by the Corporation or any other person or firm on
behalf of the Corporation, 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 Corporation on
behalf of the applicable Fund; and
(v) the offer or sale of Shares in violation of any requirement under the
Federal securities laws or regulations or the securities laws or
regulations of any State that such Shares be registered in such State or in
violation of any stop order or other determination or ruling by any federal
agency or any State with respect to the offer or sale of such Shares in
such State.
(b) Indemnification of Corporation. Forum shall indemnify and hold the
Corporation and each Fund or Class thereof harmless from and against any and all
losses, damages, costs, charges, reasonable counsel fees, payments, expenses and
liability arising out of or attributed to any action or failure or omission to
act by Forum as a result of Forum's lack of good faith, gross negligence or
willful misconduct with respect to the services performed under or in connection
with this Agreement.
(c) Reliance. At any time Forum may apply to any officer of the Corporation
for instructions, and may consult with legal counsel to the Corporation 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 Corporation
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
Corporation, 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
Corporation, 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 Corporation. Forum, its agents and
subcontractors shall also be protected and indemnified in recognizing share
certificates which are reasonably
-10-
952684.1
believed to bear the proper manual or facsimile signatures of the officers of
the Corporation, and the proper countersignature of any former transfer agent or
former registrar or of a co-transfer agent or co-registrar of the Corporation.
(d) Reliance on Electronic Instructions. If the Corporation has the ability
to originate electronic instructions to Forum in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder information
or other information, then in such event Forum shall be entitled to rely on the
validity and authenticity of such instruction without undertaking any further
inquiry as long as such instruction is undertaken in conformity with security
procedures established by Forum from time to time.
(e) Use of Fund/SERV and Networking. The Corporation has authorized or in
the future may authorize Forum to act as a "Mutual Fund Services Member" for the
Corporation or various Funds. Fund/SERV and Networking are services sponsored by
the National Securities Clearing Corporation ("NSCC") and as used herein have
the meanings as set forth in the then current edition of NSCC Rules and
Procedures published by NSCC or such other similar publication as may exist from
time to time. The Corporation shall indemnify and hold Forum harmless from and
against any and all losses, damages, costs, charges, reasonable counsel fees,
payments, expenses and liability arising directly or indirectly out of or
attributed to any action or failure or omission to act by NSCC.
(f) Notification of Claims. In order that the indemnification provisions
contained in this Section shall apply, upon the assertion of a claim for which
either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim
or to defend against said claim in its own name or in the name of the other
party. The party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) Effectiveness. This Agreement shall become effective with respect to
each Fund or Class on ____________. Upon effectiveness of this Agreement, it
shall supersede all previous agreements between the parties hereto covering the
subject matter hereof insofar as such Agreement may have been deemed to relate
to the Funds.
(b) Duration. 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 Corporationees
of the Corporation who are not parties to this Agreement or interested persons
of any such party (other than as Corporationees of the Corporation).
-11-
952684.1
(c) Termination. This Agreement may be terminated with respect to a Fund at
any time, without 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
Corporation. 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) Survival. The obligations of Sections 7, 9 and 10 shall survive any
termination of this Agreement.
SECTION 12. ADDITIONAL FUNDS AND CLASSES. In the event that the Corporation
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 Corporation may elect not to make and such series or classes subject to
this Agreement.
SECTION 13. ASSIGNMENT. Except as otherwise provided in this Agreement,
neither this Agreement nor any rights or obligations under this Agreement may be
assigned by 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 Corporation, subcontract for the performance hereof
with any entity, including affiliated persons of Forum; provided however, that
Forum shall be as fully responsible to the Corporation for the acts and
omissions of any subcontractor as Forum is for its own acts and omissions.
SECTION 14. FORCE MAJEURE. Forum shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its reasonable
control including, without limitation, acts of civil or military authority,
national emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails or
any transportation medium, communication system or power supply.
SECTION 15. LIMITATIONS OF LIABILITY OF THE DIRECTORS AND SHAREHOLDERS,
OFFICERS, EMPLOYEES AND AGENTS. The directors of the Corporation and the
shareholders of each Fund shall not be liable for any obligations of the
Corporation 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 Corporation 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 Corporation 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
-12-
952684.1
the Corporation or any Shareholder or any purchase of Shares, excluding taxes
assessed against Forum for compensation received by it under this Agreement.
SECTION 17. MISCELLANEOUS
(a) No Consequential Damages. Neither party to this Agreement shall be
liable to the other party for consequential damages under any provision of this
Agreement.
(b) Amendments. No provisions of this Agreement may be amended or modified
in any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) Choice of Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of
Maryland.
(d) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
(e) Counterparts. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(f) Severability. If any part, term or provision of this Agreement is held
to be illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not be affected, and the
rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
(g) Headings. Section and paragraph headings in this Agreement are included
for convenience only and are not to be used to construe or interpret this
Agreement.
(h) Notices. Notices, requests, instructions and communications received by
the parties at their respective principal addresses, or at such other address as
a party may have designated in writing, shall be deemed to have been properly
given.
(i) Business Days. Nothing contained in this Agreement is intended to or
shall require Forum, in any capacity hereunder, to perform any functions or
duties on any day other than a Fund Business Day. Functions or duties normally
scheduled to be performed on any day which is not a Fund Business Day shall be
performed on, and as of, the next Fund Business Day, unless otherwise required
by law.
(j) Distinction of Funds. Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each Fund of the
Corporation are separate and distinct from the assets and liabilities of each
other Fund and that no Fund shall be liable or shall
-13-
952684.1
be charged for any debt, obligation or liability of any other Fund, whether
arising under this Agreement or otherwise.
(k) Nonliability of Affiliates. No affiliated person (as that term is
defined in the 1940 Act), employee, agent, director, officer or manager of Forum
shall be liable at law or in equity for Forum's obligations under this
Agreement.
(l) Representation of Signatories. Each of the undersigned expressly
warrants and represents that they have full power and authority to sign this
Agreement on behalf of the party indicated and that their signature will bind
the party indicated to the terms hereof.
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.
AMERINDO FUNDS, INC.
By:
------------------------
Name:
Title:
FORUM SHAREHOLDER SERVICES, LLC
By:
------------------------
Xxxx X. Xxxxxxxx
Director
-14-
952684.1
AMERINDO FUNDS, INC.
TRANSFER AGENCY AND SERVICE AGREEMENT
Appendix A
Funds and Classes
as of ____________:
Fund:
Amerindo Technology Fund
Classes:
Class A
Class D
-A1-
952684.1
AMERINDO FUNDS, INC.
TRANSFER AGENCY AND SERVICE AGREEMENT
Appendix B
Fees and Expenses
(i) Base Fee:
Fees per Fund with
one Class..........................$18,000
Fees per Fund with
more than one Class................$18,000 plus $12,000 per each class
above one
The rates set forth above shall remain fixed through December 31, 1999. On
January 1, 2000, and on each successive January 1, the rates may be
adjusted automatically by Forum without action of the Corporation 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 Corporation each year of the new rates,
if applicable.
(ii) Shareholder Account Fees:
$18 per Shareholder account per year up to 10,000 accounts; $15 per
Shareholder account per year thereafter.
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 Corporation, on behalf of the applicable Fund, shall reimburse Forum
for all out-of-pocket and ancillary expenses in providing the services
described in this Agreement, including but not limited to the cost of (or
appropriate share of the cost of): (i) statement, confirmation, envelope
and stationary stock, (ii) share certificates, (iii) printing of checks and
drafts, (iv) postage, (v) telecommunications, (vi) banking services (DDA
account, wire and ACH, check and draft clearing and lock box fees and
charges), (vii) NSCC Mutual Fund Service Member fees and expenses, (viii)
outside proxy solicitors and tabulators, (ix) proxy solicitation fees and
(x) microfilm and microfiche. In addition, any other expenses incurred by
Forum at the request or with the consent of the Corporation, will be
reimbursed by the Corporation on behalf of the applicable Fund.
-B1-
952684.1
