MILLENIUM FUNDS, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the ____________ day of ______________, 2000, by
and between Millenium Funds, Inc., a Maryland corporation, with its principal
office and place of business at 000 Xxxxxxxxxx Xx., Xxxxx 000, Xxx Xxxxxxxxx, XX
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 registered under the Investment Company Act
of 1940, as amended (the "1940 Act"), as an open-end management investment
company and may issue its shares of beneficial interest, no par value (the
"Shares"), in separate series and 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 12, being herein referred to as a "Fund," and collectively as the
"Funds") and the Corporation may in the future offer shares of various classes
of each Fund as listed in Appendix A hereto (each such class together with all
other classes subsequently established by the Corporation in a Fund being herein
referred to as a "Class," and collectively as the "Classes");
WHEREAS, the Corporation desires that Forum perform as the transfer
agent and dividend disbursing agent for each Fund and Forum is willing to
provide these services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Corporation and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) 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) In connection therewith, 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 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 relevant
procedures adopted by the Corporation with respect to the Funds, 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 Directors of the Corporation (the "Board") appointing Forum and
authorizing the execution and delivery of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures established from
time to time by agreement between the 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 and related materials to Shareholders, (D) mailing
Shareholder reports and prospectuses to current Shareholders, (E)
withholding taxes on U.S. resident and non-resident alien accounts, (F)
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required by federal authorities with respect to
distributions for Shareholders, (G) preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in Shareholder
accounts, (H) preparing and mailing activity statements for
Shareholders, and (I) providing Shareholder account information;
(ii) receive for acceptance orders for the purchase of Shares and
promptly deliver payment and appropriate documentation therefor to the
custodian of the applicable Fund (the "Custodian") or, in the case 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 structure, to the transfer agent or
interestholder recordkeeper for the master fund in which the Fund
invests;
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(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
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 reasonably 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;
(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;
(xiv) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United
States; and
(xv) oversee the activities of proxy solicitation firms.
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(b) Forum shall receive and tabulate proxy votes, coordinate the
tabulation of proxy and shareholder meeting votes and perform such other
additional services as may be specified from time to time by the Corporation,
all pursuant to mutually acceptable compensation and implementation agreements.
(c) 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) 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) Forum shall cooperate with each Fund's independent public
accountants and shall take reasonable action to make all necessary information
available to the accountants for the performance of the accountants' duties.
(f) Except with respect to Forum's duties as set forth in this Section
2 and except as otherwise specifically provided herein, the 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) 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.
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(b) Forum shall keep records relating to the services to be performed
under this Agreement, in the form and manner as it may deem advisable and as
required by applicable law. To the extent required by Section 31 of the 1940
Act, and the rules thereunder, Forum agrees that all such records prepared or
maintained by Forum relating to the services to be performed by Forum under this
Agreement are the property of the 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) 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) 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) 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.
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(b) Transfers of Shares of each Fund and Class thereof shall be
registered on the Shareholder records maintained by Forum. In registering
transfers of Shares, Forum may rely upon the Uniform Commercial Code as in
effect in the State of Delaware or any other statutes that, in the opinion of
Forum's counsel, protect Forum and the 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 responsible for delivery to the transferor and
transferee of such documentation as is required by the Uniform Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) The 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) 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) 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) 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.
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(b) Shares issued in a Fund after receipt of a completed purchase order
shall be eligible to receive distributions of the Fund at the time specified in
the prospectus pursuant to which the Shares are offered.
(c) Shareholder payments shall be considered Federal Funds no later
than on the day indicated below unless other times are noted in the prospectus
of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System,
on the next Fund business day following receipt of the check; and
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as Forum is credited with Federal
Funds with respect to that check.
SECTION 7. COMPENSATION AND EXPENSES
(a) 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. The Corporation acknowledges that
Forum may from time to time earn money on amounts in the deposit accounts
maintained by Forum to service the Funds (and other clients serviced by Forum).
(b) In connection with the services provided by Forum pursuant to this
Agreement, the 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 reasonable
incurred 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 reasonable incurred out-of-pocket expenses and employee time (at
150% of salary) associated with the copying and movement of records and material
to any successor person and providing assistance to any successor person in the
establishment of the accounts and records necessary to carry out the successor's
responsibilities.
(c) All fees and reimbursements are payable in arrears on a monthly
basis and the 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.
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SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) 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; and
(vii) It is registered as a transfer agent under Xxxxxxx 00X xx xxx
0000 Xxx.
(x) 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;
(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; and
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(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) 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) 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) 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:
(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;
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(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) 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) 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 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) 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.
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(e) 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) In order that the indemnification provisions contained in this
Section shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim or to defend against
said claim in its own name or in the name of the other party. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each Fund or
Class on the earlier of the date on which the Corporation's Registration
Statement relating to the Shares of the Fund or Class becomes effective or the
date of the commencement of operations of the Fund or Class. Upon effectiveness
of this Agreement, it shall supersede all previous agreements between the
parties hereto covering the subject matter hereof insofar as such Agreement may
have been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund
until terminated; provided, that continuance is specifically approved at least
annually (i) by the Board or by a vote of a majority of the outstanding voting
securities of the Fund and (ii) by a vote of a majority of Directors of the
Corporation who are not parties to this Agreement or interested persons of any
such party (other than as Directors of the Corporation).
(c) This Agreement may be terminated with respect to a Fund at any
time, without the payment of any penalty (i) by the Board on sixty (60) days'
written notice to Forum or (ii) by Forum on sixty (60) days' written notice to
the 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.
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(d) The obligations of Sections 3, 7, 8, 9, 10, 14, 15, and 17 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 any such series or classes subject to this Agreement.
SECTION 13. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement
nor any rights or obligations under this Agreement may be assigned by either
party without the written consent of the other party. This Agreement shall inure
to the benefit of and be binding upon the parties and their respective permitted
successors and assigns. Forum may, without further consent on the part of the
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. LIMITATION OF SHAREHOLDER AND DIRECTOR LIABILITY
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.
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SECTION 16. TAXES
Forum shall not be liable for any taxes, assessments or governmental
charges that may be levied or assessed on any basis whatsoever in connection
with the 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) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
(b) Except for Appendix A to add new Funds and Classes in accordance
with Section 12, no provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by both Forum
and Corporation and no presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, or at such other address as a
party may have designated in writing, shall be deemed to have been properly
given.
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
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(j) 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 be charged for any debt, obligation or
liability of any other Fund, whether arising under this Agreement or otherwise.
(k) No affiliated person (as that term is defined in the 1940 Act),
employee, agent, director, officer or manager of Forum shall be liable at law or
in equity for Forum's obligations under this Agreement.
(l) Each of the undersigned expressly warrants and represents that they
have full power and authority to sign this Agreement on behalf of the party
indicated and that their signature will bind the party indicated to the terms
hereof and each party hereto warrants and represents that this Agreement, when
executed and delivered, will constitute a legal, valid and binding obligation of
the party, enforceable against the party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
(m) The terms and "affiliated person," "assignment" and "vote of a
majority of the outstanding voting securities" shall have the meanings ascribed
thereto in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
persons, as of the day and year first above written.
MILLENIUM FUNDS, INC.
By:
----------------------------------
[Officer name]
[Title]
FORUM SHAREHOLDER SERVICES, LLC
By:
----------------------------------
Xxxx X. Xxxxxxxx
Director
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MILLENIUM FUNDS, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
APPENDIX A
FUNDS OF THE CORPORATION:
Millenium Growth Fund
Millenium Growth and Income Fund
CLASSES OF THE CORPORATION:
none
MILLENIUM FUNDS, INC.
By:
-----------------------------------
[Officer name]
[Title]
FORUM SHAREHOLDER SERVICES, LLC
By:
-----------------------------------
Xxxx X. Xxxxxxxx
Director
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MILLENIUM FUNDS, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
APPENDIX B
Fees and Expenses
(I) BASE FEE
Fees per Fund with single Class............................$2,000/month
Fees per Additional Fund or Class
(2nd through 5th Fund or Class).............................$1,800/month
Fees per Additional Fund or Class
(6th or greater Fund or Class)..............................$1,500/month
(II) SHAREHOLDER ACCOUNT FEE
Fees per Open Fund Account/Non-Networked....................$1.50/month
Fees per Open Fund Account/NSCC Network Level 1-4...........$1.00/month
Fees per Closed Fund Account................................$0.25/month
(III) INTERNET RELATED FEES
Fees per each Fund or Class..................................$500/month
(IV) 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.
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