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TRANSFER AGENCY SERVICE AGREEMENT
BETWEEN
DCM SERIES TRUST
AND
ORBITEX FUND SERVICES, INC.
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INDEX
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SECTION 1. APPOINTMENTAND DELIVERY OF DOCUMENTS...............................3
SECTION 2. DUTIES OF OFS.....................................................4
SECTION 3. RECORD KEEPING....................................................8
SECTION 4. ISSUANCE AND TRANSFER OF SHARES...................................9
SECTION 5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS............10
SECTION 6. FEES AND EXPENSES................................................10
SECTION 7. REPRESENTATIONS AND WARRANTIES...................................11
SECTION 8. STANDARD OF CARE AND INDEMNIFICATION.............................12
SECTION 9. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY...................14
SECTION 10. CONFIDENTIALITY. ...............................................15
SECTION 11. PROPRIETARY INFORMATION..........................................15
SECTION 12. ANTI-MONEY LAUNDERING POLICY.....................................16
SECTION 13. EFFECTIVE DATE, TERM, AND TERMINATION............................16
SECTION 14. ADDITIONAL FUNDS AND CLASSES.....................................17
SECTION 15. ASSIGNMENT.......................................................18
SECTION 16. TAXES............................................................18
SECTION 17. MISCELLANEOUS....................................................18
SCHEDULE A - FEE SCHEDULE.....................................................20
SCHEDULE B -..................................................................23
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DCM SERIES TRUST
TRANSFER AGENCY SERVICE AGREEMENT
AGREEMENT made as of the 12h day of October, 2002, by and between DCM
SERIES TRUST, a Massachusetts business trust, having its principal office and
place of business at 0 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Trust"),
and ORBITEX FUND SERVICES, INC., a New York corporation having its principal
office and place of business at 000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxx 00000 ("OFS" or the "Transfer Agent").
WHEREAS, the Trust is an open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares ("Shares") of
beneficial interest (the "Shares") in an investment portfolio known as the "DCM
Growth Fund" (the "Fund"), which is a series of the Trust; and
WHEREAS, the Trust offers shares in the series as listed in Schedule B
hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 12, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers shares of the classes of each Fund as listed in
Schedule B hereto (each such class together with all other classes subsequently
established by the Trust in a Fund being herein referred to as a "Class," and
collectively as the "Classes");
WHEREAS, the Trust desires to appoint OFS as its transfer agent and
dividend disbursing agent for each Fund and Class thereof and OFS desires to
accept such appointment on the terms and conditions set forth in this Agreement;
and
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and OFS hereby agree as follows:
SECTION 1. APPOINTMENTAND DELIVERY OF DOCUMENTS
(a) APPOINTMENT. The Trust, on behalf of the Funds, hereby appoints OFS to
act as, and OFS agrees to act as (i) transfer agent for the authorized
and issued shares of common stock of the Trust representing interests
in each of the respective Funds and Classes thereof ("Shares"), (ii)
dividend disbursing agent and (iii) agent in connection with any
accumulation, open-account or similar plans provided to the registered
owners of shares of any of the Funds ("Shareholders") as set out in the
currently effective prospectuses and statements of additional
information of the applicable Fund, including, without limitation, any
periodic investment plan or periodic withdrawal program.
(b) DOCUMENT DELIVERY. In connection therewith, upon OFS' request, the
Trust has delivered or will deliver to OFS copies of:
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(i) the Trust's Declaration of Trust, Trust Instrument and By-laws
(collectively, as amended from time to time, "Organic
Documents"),
(ii) the Trust's Registration Statement and all amendments thereto
filed with the U.S. Securities and Exchange Commission ("SEC")
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the Investment Company Act of 1940, as
amended (the "1940 Act")(the "Registration Statement"),
(iii) the current Prospectus and Statement of Additional Information of
each Fund (collectively, as currently in effect and as amended or
supplemented, the "Prospectus"),
(iv) each current plan of distribution or similar document adopted by
the Trust under Rule 12b-1 under the 1940 Act ("Plan") and each
current shareholder service plan or similar document adopted by
the Trust ("Service Plan"),
(v) the advisory agreement with respect to each investment Portfolio
of the Funds,
(vi) the distribution/underwriting agreement with respect to each
Class of Shares of the Funds, and
(vii) each Portfolio's administration agreement if OFS is not providing
the Portfolio with such services.
(C) AMENDMENTS. The Trust shall promptly furnish OFS with all amendments of
or supplements to the foregoing and shall deliver to OFS a certified
copy of the resolution of the Board of Trustees of the Trust (the
"Board") appointing OFS and authorizing the execution and delivery of
this Agreement.
SECTION 2. DUTIES OF OFS
(a) TRANSFER AGENCY SERVICES. In accordance with procedures established
from time to time by agreement between the Trust on behalf of each of
the Funds, as applicable, and OFS, OFS 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, receiving and tabulating proxies;
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(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; and
(H) providing account information in response to inquiries from
Shareholders.
(ii) receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefore
to the Custodian of the Fund authorized by the Board of Trustees
of the Fund (the "Custodian"); or, in the case of a Fund
operating in a master-feeder or fund of funds structure, to the
transfer agent or interest-holder record keeper 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 therefore to the Custodian or, in the
case of Fund operating in a master-feeder or fund of funds
structure, to the transfer agent or interest-holder record keeper
for the master portfolios in which the Fund invests;
(v) as and when it receives monies paid to it by the Custodian with
respect to any redemption, pay the redemption proceeds as
required by the Prospectus pursuant to which the redeemed Shares
were offered and as instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all distributions declared by
the Trust with respect to Shares;
(viii) 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;
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(ix) track shareholder accounts by financial intermediary source and
otherwise as requested by the Trust and provide periodic
reporting to the Trust or its administrator or other agent;
record the issuance of shares of the Fund and maintain pursuant
to SEC Rule 17Ad-10(e) a record of the total number of shares of
the Fund which are authorized, based upon data provided to it by
the Fund, issued and outstanding; and
(x) provide a system, which will enable the Trust to calculate the
total number of Shares of each Fund and Class thereof sold in
each State.
(b) OTHER SERVICES. OFS shall provide the following additional services on
behalf of the Trust and such other services agreed to in writing by the
Trust and OFS:
(i) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the
United States.
(c) BLUE SKY MATTERS.
(i) the Trust in reliance on the advice of the administrator or other
agent shall identify to the Transfer Agent those transactions 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) the transfer agent and the administrator shall monitor the sales
activity with respect to Shareholders domiciled or residing in
each State.
(d) LOST SHAREHOLDERS. The Transfer Agent shall perform such services as
are required in order to comply with Rules 17a-24 and 17Ad-17 of the
1934 Act (the "Lost Shareholder Rules"), including, but not limited to,
those set forth below. OFS may, in its sole discretion, use the
services of a third party to perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply with
the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the Lost
Shareholder Rules.
(e) SAFEKEEPING. The Transfer Agent shall establish and maintain facilities
and procedures reasonably acceptable to the Trust for the safekeeping,
control, preparation and use of share certificates, check forms, and
facsimile signature imprinting devices. The Transfer Agent shall also
establish and maintain facilities and procedures reasonably acceptable
to the Trust for safekeeping of all records maintained by the Transfer
Agent pursuant to this Agreement.
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(f) DDA ACCOUNTS. The Transfer Agent may in its sole discretion, establish
DDA accounts in order to better facilitate control over the
subscription and redemption process. The sole responsibility for the
placement of such assets shall be that of the Transfer Agent.
(g) COOPERATION WITH ACCOUNTANTS. The Transfer Agent shall cooperate with
the 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.
(h) LOST, STOLEN OR MUTILATED CERTIFICATES. The Transfer Agent shall place
a stop notice against any certificate reported to be lost or stolen and
comply with all applicable federal regulatory requirements for
reporting such loss or alleged misappropriation. The Transfer Agent
shall issue share certificates and replacement share certificates for
those share certificates alleged to have been lost, stolen, or
destroyed upon receipt by the Transfer Agent of indemnification
satisfactory to the Transfer Agent and protecting the Transfer Agent
and the Trust and, at the option of the Transfer Agent , issue
replacement certificates in place of mutilated share certificates upon
presentation thereof without requiring indemnification.
(i) WITHDRAWAL OF SHARES AND CANCELLATION OF CERTIFICATES. Upon receipt of
written instructions from the Trust, OFS shall cancel outstanding
certificates surrendered by the Trust to reduce the total amount of
outstanding shares by the number of shares surrendered by the Trust.
(j) RESPONSIBILITY FOR COMPLIANCE WITH LAW.
(i) IN GENERAL. Except with respect to the Transfer Agent's duties as
set forth in this Section 2 and except as otherwise specifically
provided herein, the Trust assumes all responsibility for
ensuring that the Trust complies with all applicable requirements
of the Securities Act, the 1940 Act and any laws, rules and
regulations of governmental authorities with jurisdiction over
the Trust. All references to any law in this Agreement shall be
deemed to include reference to the applicable rules and
regulations promulgated under authority of the law and all
official interpretations of such law or rules or regulations.
(ii) ISSUANCE OF SHARES. The responsibility of the Transfer Agent for
the Trust's state registration status is solely limited to the
reporting of transactions to the Trust, and the Transfer Agent
shall have no obligation, when recording the issuance of Shares,
to monitor the issuance of such Shares or to take cognizance of
any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Trust or its
administrator or other agent.
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SECTION 3. RECORD KEEPING
(a) RECORD KEEPING. The Transfer Agent 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 there
under, the Transfer Agent agrees that all such records prepared or
maintained by the Transfer Agent relating to the services to be
performed by the Transfer Agent under this Agreement are the property
of the Trust and will be preserved, maintained and made available in
accordance with Section 31 of the 1940 Act and the rules there under,
and will be surrendered promptly to the Trust on and in accordance with
the Trust's request at the expense of the Trust, provided that all fees
and expenses charged by the Transfer Agent in the performance of its
duties hereunder including all reasonable deconversion fees have been
fully paid to the satisfaction of the Transfer Agent . The Trust and
the Trust's authorized representatives shall have access to the
Transfer Agent's ' records relating to the services to be performed
under this Agreement at all times during the Transfer Agent's ' normal
business hours. Upon the reasonable request of the Trust, the Transfer
Agent shall provide copies of any such records promptly to the Trust or
its authorized representatives. The Transfer Agent shall maintain the
following shareholder account information:
(i) name, address and United States Tax Identification or Social
Security number;
(ii) number and Class of Shares held and number and Class of Shares
for which certificates, if any, have been issued, including
certificate numbers and denominations;
(iii) historical information regarding the account of each Shareholder,
including dividends and distributions paid and the date and price
for all transactions on a Shareholder's account;
(iv) any stop or restraining order placed against a Shareholder's
account;
(v) any correspondence relating to the current maintenance of a
Shareholder's account;
(vi) information with respect to withholdings; and
(vii) any information required in order for the Transfer Agent to
perform any calculations by this Agreement
(b) CONFIDENTIALITY OF RECORDS. OFS and the Trust agree that all books,
records, information, and data pertaining to the business of the other
party, which are exchanged or received pursuant to the negotiation or
the carrying out of this Agreement, shall remain confidential, and
shall not be voluntarily disclosed to any other person, except as may
be required by law.
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The Transfer Agent agrees to make all reasonable efforts to adhere to
the Trust's policy regarding the use of Fund shareholder and potential
shareholder information as required by Regulation S-P. The Transfer
Agent shall be free to share information regarding Fund shareholders
and potential Fund shareholders, on an as needed basis in order to
fulfill its role as transfer agent, with other authorized agents of the
Fund including service providers and brokers. The Transfer Agent shall
also be free to provide such information as required by regulatory
agencies, law enforcement or in accordance with a court order.
(c) INSPECTION OF RECORDS BY OTHERS. In case of any requests or demands for
the inspection of the Shareholder records of the Fund, the Transfer
Agent will endeavor to notify the Fund and to secure instructions from
an authorized officer of the Fund as to such inspection. The Transfer
Agent reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such
person, and shall promptly notify the Fund of any request to inspect or
copy the shareholder records of the Fund or the receipt of any other
request to inspect, copy or produce the records of the Fund.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) ISSUANCE OF SHARES. The Transfer Agent shall make original issues of
Shares of each Fund and Class thereof in accordance with the Trust's
then current prospectus only upon receipt of:
(i) instructions requesting the issuance,
(ii) a certified copy of a resolution of the Board authorizing the
issuance,
(iii) necessary funds for the payment of any original issue tax
applicable to such Shares, and
(iv) an opinion of the Trust's counsel as to the legality and validity
of the issuance, which opinion may provide that it is contingent
upon the filing by the Trust of an appropriate notice with the
SEC, as required by Section 24 of the 1940 Act or the rules there
under. If such opinion is contingent upon a filing under Section
24 of the 1940 Act, the Trust shall indemnify the Transfer Agent
for any liability arising from the failure of the Trust to comply
with that section or the rules there under.
(b) TRANSFER OF SHARES. Transfers of Shares of each Fund and Class thereof
shall be registered on the Shareholder records maintained by OFS. In
registering transfers of Shares, OFS may rely upon the Uniform
Commercial Code as in effect in the State of Nebraska or any other
statutes that, in the opinion of the Transfer Agent's counsel, protect
the Transfer Agent and the Trust from liability arising from:
(i) not requiring complete documentation;
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(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, OFS will be responsible for delivery
to the transferor and the Uniform Commercial Code requires
transferee of such documentation as.
SECTION 5. 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 the Transfer Agent or its agent
receives either:
(i) (A) an instruction from a financial intermediary, purchaser or
agent thereof 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.
(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
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as OFS is credited with
Federal Funds with respect to that check.
SECTION 6. FEES AND EXPENSES
(a) FEES. For the services provided by the Transfer Agent pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to pay OFS the
transfer agent fees, activity charges and, special report charges as
set forth in Schedule A attached 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.
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(b) EXPENSES. In addition to the fees paid under subsection (a), the Trust
agrees to reimburse OFS for out-of-pocket expenses or advances incurred
by OFS for the items set out in the Schedule A. attached hereto. In
addition, the Trust will reimburse any other expenses incurred by OFS
at the request or with the consent of the Trust.
(c) FEE CHANGES. The fees, out-of pocket expenses and advances identified
in the subsections (a) and (b) above may be changed from time to time
subject to mutual written agreement between the Trust and OFS.
(d) DUE DATE. All fees under subsection (a) are due and payable within ten
(15) days of receipt of the invoice. All expenses under subsection (b)
are due and payable within fifteen (15) days of receipt of the invoice.
SECTION 7. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS OF OFS. OFS represents and warrants to the Trust that:
(i) it is a corporation duly organized and existing and in good
standing under the laws of the State of New York ;
(ii) it is duly qualified to carry on its business;
(iii) it is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into this Agreement and perform
its duties under this Agreement;
(iv) it has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this
Agreement; and
(v) it is registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934 and shall continue to be
registered throughout the remainder of this Agreement.
(b) REPRESENTATIONS OF THE TRUST. Subject to subsection (c) hereof with
respect to subdivision (v) of subsection (b) hereof the Trust
represents and warrants to OFS that:
(i) it is a Trust duly organized and existing and in good standing
under the laws of the Commonwealth of Massachusetts ;
(ii) it is empowered under applicable laws and by its Organic
Documents to enter into and perform this Agreement;
(iii) all proceedings required by said Organic Documents have been
taken to authorize it to enter into and perform this Agreement;
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(iv) it is an open-end management investment company registered under
the Investment Company Act of 1940; and
(v) a registration statement under the Securities Act of 1933 is
currently effective and will remain effective, and appropriate
state securities law filings as required, have been or will be
made and will continue to be made, with respect to all Shares of
the Fund being offered for sale.
(c) CONDITIONS TO REPRESENTATION OF THE TRUST. The representations
contained in Section 7 (b) (v) hereof are made in reliance upon the
representations, advice and assistance of OFS and in further reliance
upon OFS fulfilling its obligations under Section 2 (m) and Section 2
(o) of the Administrative Services Agreement (the "ASA") between the
Trust and OFS.
SECTION 8. STANDARD OF CARE AND INDEMNIFICATION
(a) STANDARD OF CARE OF OFS. OFS shall be under no duty to take any action
except as specifically set forth herein or as may be specifically
agreed to by OFS in writing. OFS shall use its best judgment and
efforts in rendering the services described in this Agreement. OFS
shall not be liable to the Trust or any of the Corporation's
shareholders for any action or inaction of OFS relating to any event
whatsoever in the absence of bad faith, willful misfeasance or
negligence in the performance of OFS' duties or obligations under this
Agreement or by reason of OFS' reckless disregard of its duties and
obligations under this Agreement.
(b) INDEMNIFICATION OF OFS. OFS shall not be responsible for, and the Trust
shall on behalf of each applicable Fund or Class thereof indemnify and
hold OFS 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 OFS or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misconduct;
(ii) the Trust's lack of good faith or the Trust's negligence or
willful misconduct;
(iii) the reliance on or use by OFS or its agents or subcontractors of
information, records or documents which (A) are received by OFS
or its agents or subcontractors and furnished to it by or on
behalf of the Trust, and (B) have been prepared or maintained by
the Trust or any other person or firm on behalf of the Trust,
other than Orbitex Fund Services, Inc. .;
(iv) the reasonable reliance on, or the carrying out by OFS or its
agents or subcontractors of, any instructions or requests of the
Trust on behalf of the applicable Fund;
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(v) the Trust's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Trust's lack good faith,
negligence or willful misconduct or which arise out of the breach
of any representation or warranty of the Trust hereunder; and
(vi) 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;
provided, however, that OFS shall neither be exculpated nor
indemnified under this Section 8(b)(vi) for any violation that
arose out of the failure of OFS to fulfill its obligations under
Section 2 (m) or Section 2 (o) of the ASA or out of any advice,
action or inaction of OFS.
The Trust shall not be required to indemnify any OFS Indemnitee if,
prior to confessing any Claim against the OFS Indemnitee, OFS or the OFS
Indemnitee does not give the Trust written notice of and reasonable opportunity
to defend against the claim in its own name or in the name of the OFS
Indemnitee.
(c) INDEMNIFICATION OF THE TRUST. OFS shall indemnify and hold the Trust
and each Fund or Class thereof harmless from and against any and all
losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising out of or attributed to any action or
failure or omission to act by OFS as a result of OFS' lack of good
faith, negligence or willful misconduct with respect to the services
performed under or in connection with this Agreement except that in no
event shall OFS be liable to the Trust and each Fund or class thereof
for any amount in excess of the fees paid to it during the most recent
12 month period prior to any assertion of liability against OFS. OFS
shall not be liable to the Funds for any error of judgment or mistake
of law or for any loss arising out of any act or omission by OFS in the
performance of its duties hereunder except as hereinafter set forth.
Nothing herein contained shall be construed to protect OFS against any
liability to the Funds or their security holders to which OFS shall
otherwise be subject by reason of willful misfeasance, bad faith,
negligence in the performance of its duties on behalf of the Funds, or
reckless disregard of OFS' obligations and duties under this Agreement
or the willful violation of any applicable law.
(d) RELIANCE. At any time the Transfer Agent may apply to any officer of
the Trust for instructions, and may consult with legal counsel to the
Trust or to OFS with respect to any matter arising in connection with
the services to be performed by the Transfer Agent under this
Agreement, and the Transfer Agent and its agents or subcontractors
shall not be liable and shall be indemnified by the Trust on behalf of
the applicable Fund for any action taken or omitted by it in reasonable
reliance upon such instructions or upon the advice of such counsel. The
Transfer Agent, its agents and subcontractors shall be protected and
indemnified in acting upon:
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(i) any paper or document furnished by or on behalf of the Trust,
reasonably believed by OFS to be genuine and to have been signed
by the proper person or persons;
(ii) any instruction, information, data, records or documents provided
OFS or its agents or subcontractors by machine readable input,
telex, CRT data entry or other similar means authorized by the
Trust; and
(iii) any authorization, instruction, approval, item or set of data, or
information of any kind transmitted to OFS in person or by
telephone, vocal telegram or other electronic means, reasonably
believed by OFS to be genuine and to have been given by the
proper person or persons as set forth in the attached Schedule C
as amended from time to time pursuant to the agreement of both
parties.. OFS shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof
from the Trust. OFS, 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 Trust, and the proper
countersignature of any former transfer agent or former registrar
or of a co-transfer agent or co-registrar of the Trust.
(e) RELIANCE ON ELECTRONIC INSTRUCTIONS. If the Trust has the ability to
originate electronic instructions to the Transfer Agent 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 the
Transfer Agent 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 the Transfer Agent from time to
time.
(f) USE OF FUND/SERV AND NETWORKING. The Trust has authorized or in the
future may authorize the Transfer Agent to act as a "Mutual Fund
Services Member" for the Trust or various Funds and Classes. Fund/SERV
and Networking are services sponsored by the National Securities
Clearing Trust ("NSCC") and as used herein have the meanings as set
forth in the then current edition of NSCC RULES AND PROCEDURES
published by NSCC or such other similar publication as may exist from
time to time. The Trust shall indemnify and hold the Transfer Agent
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.
(g) 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.
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SECTION 9. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not
be liable for any obligations of the Trust or of the Funds under this Agreement,
and OFS agrees that, in asserting any rights or claims under this Agreement, it
shall look only to the assets and property of the Fund (or Funds) to which OFS'
rights or claims relate in settlement of such rights or claims, and not to the
Trustees of the Trust or the shareholders of the Funds. The term "DCM Series
Trust" means and refers to the Trustees from time to time serving under the
Trust's Declaration of Trust as the same may subsequently thereto have been or
subsequently hereto be, amended. It is expressly agreed that the obligations of
the Trust hereunder shall not be binding upon any of the trustees, shareholders,
nominees, officers, agents or employees of the Trust personally, but bind only
the trust property of the Trust, as provided in the Declaration of Trust of the
Trust. The execution and delivery of this Agreement have been authorized by the
trustees and shareholders of the Trust and signed by the officers of the Trust,
acting as such, and neither such authorization by such trustees and shareholders
nor such execution and delivery by such officers shall be deemed to have been
made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
its Declaration of Trust. A copy of the Agreement and Declaration of Trust of
the Trust is on file with the Commonwealth of Massachusetts.
SECTION 10. CONFIDENTIALITY
The Transfer Agent and the Trust agree that all books, records,
information, and data pertaining to the business of the other party, which are
exchanged or received pursuant to the negotiation or the carrying out this
Agreement, shall remain confidential, and shall not be voluntarily disclosed to
any other person, except that the Transfer Agent may:
(a) prepare or assist in the preparation of periodic reports to
Shareholders and regulatory bodies such as the SEC; and
(b) release such other information as approved in writing by the Trust
which approval shall not be unreasonably withheld and may not be
withheld where OFS may be exposed to civil or criminal contempt
proceedings for failure to release the information, when requested to
divulge such information by duly constituted authorities or when so
requested by the Trust or the Adviser.
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SECTION 11. PROPRIETARY INFORMATION
(a) PROPRIETARY INFORMATION OF OFS. The Trust acknowledges that the
databases, computer programs, screen formats, report formats,
interactive design techniques, and documentation manuals maintained by
OFS on databases under the control and ownership of OFS or a third
party constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial
value to OFS or the third party. The Trust agrees to treat all
Proprietary Information as proprietary to OFS and further agrees that
it shall not divulge any Proprietary Information to any person or
organization except as may be provided under this Agreement or required
by law.
(b) PROPRIETARY INFORMATION OF THE TRUST. OFS acknowledges that the
Shareholder list and all information related to Shareholders furnished
to OFS by the Trust or by a Shareholder in connection with this
Agreement (collectively, "Customer Data") constitute proprietary
information of substantial value to the Trust. In no event shall
Proprietary Information be deemed Customer Data. OFS agrees to treat
all Customer Data as proprietary to the Trust 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 maybe directed by
the Trust or required by law.
SECTION 12. ANTI-MONEY LAUNDERING POLICY
The Transfer Agent agrees to make all reasonable efforts to assist the
Trust in complying with the Trust's anti-money laundering policy. As part of
this effort, the Transfer Agent has adopted its own anti-money laundering policy
and agrees to provide access to all relevant records at the request of
appropriate regulatory authorities.
SECTION 13. EFFECTIVE DATE, TERM, AND TERMINATION
(a) EFFECTIVE DATE. This Agreement shall become effective on the date first
above written.
(b) TERM. This Agreement shall remain in effect for a period of two (2)
years from the date of its effectiveness and shall continue in effect
for successive twelve-month periods provided that the members of the
board of the Trust specifically approve such continuance at least
annually.
(c) TERMINATION: This Agreement can be terminated upon ninety (90) days
prior written notice by either party. Compensation due OFS for services
provided through the date of termination and unpaid by the Trust upon
such termination shall be immediately due and payable upon, and
notwithstanding, such termination.
(d) REIMBURSEMENT OF OFS' EXPENSES. Should the Fund exercise its right to
terminate, all out-of-pocket expenses associated with the movement of
records and material will be borne by the Fund. Additionally, OFS
reserves the right to charge for any other reasonable expenses
associated with such termination.
(e) SURVIVAL OF CERTAIN OBLIGATIONS. The obligations of Sections 6, 8, 9,
10 and 11 shall survive any termination of this Agreement.
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SECTION 14. ADDITIONAL FUNDS AND CLASSES
If the Trust establishes one or more series of Shares or one or more
Classes of Shares after the effectiveness of this Agreement, such series of
Shares or Classes of Shares, as the case may be, shall become Funds and Classes
under this Agreement; PROVIDED, however, that either OFS or the Trust may elect
not to make any such series or Classes subject to this Agreement.
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SECTION 15. 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 with 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. The Transfer Agent may, without further consent on the
part of the Trust, at the Transfer Agent's ' expense subcontract for the
performance hereof with any entity, including affiliated persons of the Transfer
Agent ; provided however, that the Transfer Agent shall have previously
identified the subcontractor to the Trust and the Trust shall not have objected
to the delegation and that the Transfer Agent shall be as fully responsible to
the Trust for the acts and omissions of any subcontractor as the Transfer Agent
is for its own acts and omissions. In no event shall such delegation by the
Transfer Agent result in increasing the Transfer Agent's compensation from the
Trust.
SECTION 16. TAXES
Except as provided by Section 8 herein, OFS shall not be liable for any
taxes, assessments or governmental charges that may be levied or assessed on any
basis whatsoever in connection with the Trust or any Shareholder or any purchase
of Shares, excluding any taxes, assessments or charges resulting from OFS' lack
of good faith, negligence or willful misconduct and taxes assessed against OFS
for compensation received by it under this Agreement.
SECTION 17. MISCELLANEOUS
(a) 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.
(b) CHOICE OF LAW. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State
of New York
(c) 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.
(d) COUNTERPARTS. The parties may execute this Agreement on any number of
counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) 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.
-18-
(f) FORCE MAJEURE. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond
its control, or other causes reasonably beyond its control, such party
shall not be liable for damages to the other party resulting from such
failure to perform or otherwise from such causes.
(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. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent
by telex or facsimile, and shall be given to the following addresses
(or such other addresses as to which notice is given):
TO THE TRUST: TO OFS:
DCM Series Trust Orbitex Fund Services, Inc.
0 Xxxxx Xxxxxx 000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxxx X. Xxxxx, Attn. Mr. Xxxxx Xxxxxx, President
Co-Chairman and Vice President
(i) BUSINESS DAYS. Nothing contained in this Agreement is intended to or
shall require OFS, 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 Trust are separate and distinct from the assets and
liabilities of each other Fund and that no Fund shall be liable or
shall be charged for any debt, obligation or liability of any other
Fund, whether arising under this Agreement or otherwise.
(k) NONLIABILITY OF AFFILIATES. No affiliated person (as that term is
defined in the 1940 Act), employee, agent, director, officer or manager
of OFS shall be liable at law or in equity for OFS' 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.
-19-
DCM SERIES TRUST ORBITEX FUND SERVICES, INC.
By: __________________________________ By: ____________________________
Xxxxxxxx X. Xxxxx Xxxxx X. Xxxxxx
Title: _______________________________ Title: __________________________
Co-Chairman & Vice President President
-20-
SCHEDULE A
DCM SERIES TRUST
Transfer Agency Service Agreement
FEE SCHEDULE
For the services rendered by OFS in its capacity as transfer agent, the
Fund shall pay OFS, within ten (10) days after receipt of an invoice from OFS at
the beginning of each month, a fee, calculated as a combination of account
maintenance charges plus transaction charges as follows:
(A) ACCOUNT MAINTENANCE CHARGE:
The greater of (no prorating for partial months):
(1) Minimum maintenance charge per portfolio/class ($1,000.00/ month).
OR,
(2) Based upon the total of all open/closed accounts (1) per portfolio/class
upon the following annual rates (billed monthly):
FUND TYPE:
Dividend calculated and
paid annually, semi-annually, and quarterly................$ 9.00 per account
Dividend calculated and paid monthly......................... $12.00 per account
Dividend accrued daily and paid monthly...................... $16.00 per account
Closed accounts ................. $ 2.00 per account (2)
(1) All accounts closed during a month will be considered as open accounts for
billing purposes in the month the account is closed.
(2) Closed accounts remain on the shareholder files until all Forms 1099 and
5498 have been distributed to the shareholders and sent via mag-media to
the IRS.
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PLUS,
(b) TRANSACTION FEES:
Trade Entry (purchase/liquidation) and maintenance
transactions ............................................... $ 1.50 each
New account set-up .............................................. $ 3.00 each
Customer service calls ........................................... $ 1.50 each
CORRESPONDENCE/ INFORMATION REQUESTS ............................ $ 1.75 each
--------------------------------------------------------------------------------
Check preparation ............................................... $ .50 each
Liquidations paid by wire transfer .............................. $ 3.00 each
ACH charge ...................................................... $ .45 each
SWP ............................................................. $ 1.00 each
(C) 24 HOUR AUTOMATED VOICE RESPONSE:
Initial set-up (one-time) charge per portfolio - $750.00
Monthly maintenance charge per portfolio - $50.00
All calls processed through automated voice response will be billed as a
customer service call listed in (b) above.
(D) FUND/SERV
All portfolios processed through Fund/SERV will be subject to an additional
monthly charge of $250.00
All transactions processed through Fund/SERV will be billed at the transaction
fee rates listed in (b) above.
(E) INTERNET ACCESS:
Each shareholder/adviser/broker hit billed at $0.25 per hit.
(F) XXX PLAN FEES:
The following fees will be charged directly to the shareholder account:
Annual maintenance fee ....................................... $15.00 /account *
Incoming transfer from prior custodian ....................... $12.00
Distribution to a participant ................................ $15.00
Refund of excess contribution ................................ $15.00
Transfer to successor custodian .............................. $15.00
Automatic periodic distributions ............................. $15.00/year
per account
o Includes $8.00 Bank Custody Fee.
-22-
(G) EXPENSES:
The Fund shall reimburse OFS for any out-of-pocket expenses, exclusive
of salaries, advanced by OFS in connection with but not limited to the costs for
printing Fund documents, (i.e. printing of confirmation forms, shareholder
statements, redemption/dividend checks, envelopes, financial statements, proxy
statement, Fund prospectus, etc.) proxy solicitation and mailing expenses,
travel requested by the Fund, telephone toll charges, 800-line costs and fees,
facsimile and data transmission costs, stationery and supplies (related to Fund
records), record storage, postage service charge for all mailings), bank fees,
pro-rata portion of annual SAS-70 audit letter, telex and courier charges
incurred in connection with the performance of its duties hereunder. ADS shall
provide the Fund with a monthly invoice of such expenses and the Fund shall
reimburse OFS within fifteen (10) days after receipt thereof.
(H) SPECIAL REPORTS:
All reports and/or analyses requested by the Fund that are not included
in the fee schedule, shall be subject to an additional charge, agreed upon in
advance, based upon the following rates:
Labor:
Senior staff - $150.00/hr.
Junior staff - $ 75.00/hr.
Computer time - $45.00/hr.
(I) CONVERSION CHARGE: (EXISTING FUNDS ONLY, NEW FUNDS PLEASE IGNORE)
There will be a charge to convert the Fund's shareholder accounting
records on to the OFS stock transfer system. In addition, OFS will be reimbursed
for all out-of-pocket expenses, enumerated in paragraph (b) above and data media
conversion costs, incurred during the conversion process.
The conversion charge will be estimated and agreed upon in advance by
the Fund and OFS. The charge will be based upon the quantity of records to be
converted and the condition of the previous service agent's records.
-23-
SCHEDULE B
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
DCM Growth Fund
-24-
SCHEDULE C
PERSONS AUTHORIZED BY THE TRUST TO GIVE INSTRUCTION UNDER THIS AGREEMENT:
Xxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
Xxxx X. Derby
-25-
