Exhibit 2(k)(i)
UM INVESTMENT TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 1st day of February, 2002, by and between UM
Investment Trust, a Massachusetts business trust, with its principal office and
place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000
(the "Trust"), 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 Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as a closed-end management investment company
and may issue its shares of beneficial interest, no par value; and
WHEREAS, the Trust intends to offer shares in one or more series as
listed in Appendix A 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 intends to offer shares of one or
more classes of each Fund as listed in Appendix A 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 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 Trust and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust, 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 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") and set out in the currently effective offering memorandum of
the applicable Fund, including, without limitation, any periodic investment plan
or periodic withdrawal program.
(b) In connection therewith, the Trust has delivered to Forum copies
of: (i) the Trust's Declaration of Trust and Bylaws (collectively, as amended
from time to time, "Trust 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 1940 Act (the "Registration Statement"); (iii) the
Trust's
current offering memorandum for each Fund (collectively, as currently in effect
and as amended or supplemented, the "Offering Memorandum"); and (iv) all
procedures adopted by the Trust as of the date hereof with respect to the Funds
relating to the subject matter of this Agreement, including any procedures
adopted as of the date hereof with respect to the Funds by Undiscovered
Managers, LLC as the current Administrator of the Fund ("Trust Procedures"), and
shall promptly furnish Forum with all amendments of or supplements to the
foregoing. The Trust shall deliver to Forum a certified copy of the resolution
of the Board of Trustees of the Trust (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 Trust Procedures and the
procedures in the Offering Memorandum, Forum will perform the services set forth
below. Forum shall perform such other record-keeping, reporting and other tasks
for the Funds as may be specified in any amendment to the Trust Procedures or
required in connection with an amendment to the Offering Memorandum; provided,
however, that in connection with an amendment to the then-current Trust
Procedures and Offering Memorandum Forum need not begin performing any new
task(s), and need not perform any current task(s) in a materially different or
more burdensome manner, except upon (i) 60 days' notice, (ii) pursuant to
mutually acceptable compensation agreements and (iii) Forum's approval of any
such amended Trust Procedures or Offering Memorandum.
(i) provide the services of a transfer agent, and 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 closed-end management investment companies, including:
(A) maintaining all Shareholder accounts and the records relating
thereto, (B) preparing Shareholder meeting lists, (C) mailing proxies
and related materials to Shareholders, (D) mailing Shareholder reports,
dividend and distribution notices and Offering Memorandum to
then-current Shareholders, (E) withholding taxes on U.S. resident and
non-resident alien accounts, (F) preparing, distributing 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,
providing duplicate second and third party copies if requested, (H)
preparing and mailing activity statements for Shareholders, (I)
providing Shareholder account information, (J) responding as
appropriate to all inquiries and communications from Shareholders
relating to Shareholder accounts with respect to its duties hereunder
and as may be from time to time mutually agreed upon between Forum and
the Funds, (K) providing toll-free lines for direct shareholder use and
customer liaison staff with on-line inquiry capacity, as requested by
the Trust, (L) producing detailed history of transactions through
duplicate or special order statements upon request, (M) providing
information in its records to be included in reports to the SEC, the
National Association of Securities Dealers (the "NASD") and the States
in which the Funds are offered or sold, and (N) making information
available to appropriate shareholder servicing
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personnel and other remote access units regarding trade date, share
price, current holdings, yields and per account dividend information;
(ii) receive for acceptance orders for the purchase of Shares and, if
required by the Trust Procedures related to the review and acceptance
of subscriptions, promptly deliver payment and appropriate
documentation therefor to the custodian of the applicable Fund (the
"Custodian");
(iii) pursuant to accepted purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate Shareholder
account;
(iv) receive for acceptance redemption requests and, if required by the
Trust Procedures related to the review and acceptance of redemptions,
deliver the appropriate documentation therefor to the Custodian;
(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 relevant Offering Memorandum and as instructed by the redeeming
Shareholders;
(vi) effect transfers and exchanges 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) 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 Trust 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 Trust and provide periodic
reporting to the Trust or its administrator or other agent;
(xi) maintain records of account for and provide reports and statements
to the Trust and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Trust and maintain pursuant
to Rule 17Ad-10(e) under the Securities Exchange Act of 1934, as
amended ("1934 Act"), a record of
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the total number of Shares of the Trust, each Fund and each Class
thereof, that are authorized, based upon data provided to it by the
Trust, and are issued and outstanding, and provide the Trust 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 Trust to calculate the
total number of Shares of each Fund and Class thereof sold in each
State;
(xiv) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United
States; and
(xv) oversee the activities of proxy solicitation firms.
(b) Forum shall receive and tabulate proxy votes, coordinate the
tabulation of proxy and shareholder meeting votes and perform such other
additional services as may be specified from time to time by the Trust, all
pursuant to mutually acceptable compensation and implementation agreements.
(c) The Trust 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 hereunder relating to the Trust's State registration
status is solely limited to the reporting of transactions to the Trust or its
designated agents, 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 Trust or its administrator or other agent.
(d) Forum 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. Forum shall establish and maintain facilities and procedures reasonably
acceptable to the Trust 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) In connection with the subject matter of this Agreement, except
with respect to Forum's duties as set forth in this Section 2 and except as
otherwise specifically provided herein, as between the Trust and Forum the Trust
assumes all responsibility for ensuring that the Trust complies with all
applicable requirements of the Securities Act, the 1940 Act, the 1934 Act and
any laws, rules and regulations of governmental authorities with jurisdiction
over the Trust and the offering or sale of the Shares. The parties acknowledge
and agree that affiliates of Forum may have separately contracted with the Trust
and/or Undiscovered Managers, LLC to provide other
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services to the Trust and/or Undiscovered Managers. LLC. 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) With respect to the services to be provided by Forum under this
Agreement, Forum shall keep and maintain on behalf of the Trust all books and
records that the Trust or Forum is, or may be, required to keep and maintain
pursuant to any applicable United States law, including, without limitation,
Section 31 of the 1940 Act and Rules 31a-1(2)(iv) and 31a-2(a)(1) thereunder,
relating to the maintenance of books and records in connection with the services
to be provided hereunder. Forum agrees that all such books and records prepared
or maintained by Forum relating to the services to be performed by Forum under
this Agreement are the property of the Trust and will be preserved, maintained
and made available, in each case in accordance with Section 31 of the 1940 Act
and the rules thereunder, and will be surrendered promptly to the Trust on and
in accordance with the Trust's request. The provisions of this Section 3 shall
survive the termination of this Agreement. The Trust and the Trust'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 Trust, copies of any such records
shall be provided promptly by Forum to the Trust or the Trust's authorized
representatives.
(b) Forum 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, as otherwise set forth in this Agreement or
with the express written consent of the other party hereto.
(c) In case of any requests or demands for the inspection of the
Shareholder records of the Trust, Forum will notify the Trust and to secure
instructions from an authorized officer of the Trust as to such inspection.
Forum shall abide by the Trust'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 the Trust or 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 then current Offering Memorandum relating to such
Fund or Class 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.
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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 reasonably 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 Trust 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 Trust 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 Trust authorized to sign
by the Trust Documents of the Trust and, if required by the Trust Documents,
shall bear the Trust's seal or a facsimile thereof. Unless otherwise directed by
the Trust, 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 Trust. Forum shall maintain a record of each Share certificate issued, the
number of Shares represented thereby, and the shareholder of record.
(b) In connection with the transfer of Shares by a shareholder, 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 Trust and
fully indemnified by the Trust to Forum's satisfaction. Forum shall maintain a
stop transfer record with respect to lost and/or replaced certificates.
(c) In the event that the Trust 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. In such
event, Forum shall maintain records, comparable to those required in 5(a)
hereof, of the shareholders holding Shares in open account or uncertificated
form, including their names, addresses and taxpayer identification.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of a Fund's or
Class' Offering Memorandum and the Trust Procedures after Forum or its agent
receives either:
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(i) (A) an instruction delivered by the Administrator directing Forum
to record a purchase order 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 subscription booklet, and in the case of a
subsequent purchase, such documentation as is specified in the Trust
Procedures; or
(ii) the information required for purchases pursuant to a solicitation
agent agreement, private placement agreement or a similar contract with
a financial intermediary.
(b) Shares issued in a Fund after receipt of a completed purchase order
shall be eligible to receive distributions of the Fund at the time specified in
the applicable Offering Memorandum.
(c) Shareholder payments shall be considered Federal Funds no later
than on the day indicated below unless other times are noted in the Offering
Memorandum 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.
For purposes of this Agreement, the term "Fund business day" shall mean any day
on which the New York Stock Exchange is open.
SECTION 7. COMPENSATION AND EXPENSES
(a) For the services provided by Forum pursuant to this Agreement, the
Trust, on behalf of each Fund, agrees to pay Forum the fees set forth in Clause
(i) of Appendix B hereto. Fees will begin to accrue for each Fund on the date of
this Agreement. 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. Within fifteen (15) days after the termination of this
Agreement with respect to a Fund, the Trust shall pay to Forum such compensation
relating to such Fund as shall be payable prior to the effective date of such
termination. The Trust 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 Trust, on behalf of each Fund, agrees to reimburse Forum for the
expenses set forth in clause (ii) of Appendix B hereto. In addition, the Trust,
on behalf of the applicable Fund, shall reimburse
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Forum for all reasonable incurred expenses and reasonable employee time (at 150%
of salary) attributable to any review of the Trust's accounts and records by the
Trust's independent accountants or any regulatory body outside of routine and
normal periodic reviews (e.g., a routine year-end audit and routine examinations
of the Trust by the SEC). Should the Trust exercise its right to terminate this
Agreement the Trust, on behalf of the applicable Fund, shall reimburse Forum for
all reasonable incurred out-of-pocket expenses and reasonable 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; provided, however, that, notwithstanding anything herein to
the contrary, the Trust shall have no obligation to reimburse Forum for such
expenses and employee time if the Trust has terminated this Agreement because
Forum has been negligent in its actions (or omissions to act) taken in its
performance of its obligations under this Agreement
(c) All fees and reimbursements shall be payable monthly in arrears.
The Trust, on behalf of the applicable Fund, agrees to pay all fees within
fifteen (15) business days following receipt of the respective billing notice
and reimburse expenses as incurred.
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to the Trust 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 has been in, and shall continue to be in, substantial
compliance with all provisions of law required in connection with the
performance of its duties under this Agreement, including that it is
registered as a transfer agent under, and is in substantial
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compliance with, Section 17A of the 1934 Act and such registration will
continue in effect for the duration of this Agreement; and
(viii) The various procedures and systems which it has implemented with
regard to safekeeping from loss or damage attributable to fire, theft
or any other cause of the blank checks, records, and other data of the
Trust and Forum's records, data, equipment, facilities and other
property used in the performance of its obligations hereunder are
adequate and that it will make such changes therein from time to time
as are required for the secure performance of its obligations
hereunder.
(b) The Trust represents and warrants to Forum that:
(i) It is a business 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 Trust Documents
to enter into this Agreement and perform its duties under this
Agreement;
(iii) All requisite corporate or other proceedings have been taken to
authorize it to enter into this Agreement and perform its duties under
this Agreement;
(iv) It is a closed-end management investment company registered under
the 1940 Act and has filed and will maintain in effect a registration
statement to such effect; and
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Trust, enforceable against
the Trust 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.
SECTION 9. PROPRIETARY INFORMATION
(a) The Trust 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 Trust 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 other than those of
its affiliates, directors, officers, employees, agents, advisers, attorneys, and
accountants who have agreed to keep such information confidential, except as may
be provided under this Agreement or with the prior written permission of Forum.
Notwithstanding the foregoing, the term "Proprietary Information" does not
include information which (1) is or becomes generally available to the public
other than as a result of a disclosure by the Trust or any of its affiliates,
directors, officers, employees, agents, advisers, attorneys, and accountants,
(2) was in the possession of the Trust prior to its
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being furnished to the Trust by or on behalf of Forum, or (3) becomes available
to the Trust on a non-confidential basis from a source other than Forum or any
of its representatives (other than a source that the Trust knows or has reason
to know has breached an obligation of confidentiality by making such information
available to the Trust).
(b) Forum acknowledges that the Shareholder list and all information
related to Shareholders, Shares or the Trust furnished to Forum 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. Forum 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 may be directed by the Trust or its
Administrator.
SECTION 10. INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as
specifically set forth herein or as may be specifically agreed to by Forum in
writing. Forum shall use its best judgment and efforts in rendering the services
described in this Agreement. Forum shall not be liable to the Trust or any of
the Trust's shareholders for any action or inaction of Forum relating to any
event whatsoever in the absence of bad faith, willful misfeasance or gross
negligence in the performance of Forum's duties or obligations under this
Agreement or by reason of Forum's reckless disregard of its duties and
obligations under this Agreement.
(b) Forum shall not be responsible for, and the Trust shall on behalf
of each applicable Fund or Class thereof indemnify and hold Forum, its
employees, directors, officers and managers and any person who controls Forum
within the meaning of section 15 of the Securities Act or section 20 of the 1934
Act ("Forum Indemnitees") 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 (or
omissions to act) are taken in good faith and without gross negligence
or reckless disregard by Forum of its duties and obligations under this
Agreement;
(ii) the Trust's lack of good faith or the Trust's gross negligence or
willful misconduct;
(iii) the reasonable reliance on or reasonable use by Forum or its
agents or subcontractors of information, records, documents or services
which have been prepared, maintained or performed by the Trust or any
other person or firm on behalf of the Trust, including but not limited
to any previous transfer agent or registrar;
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(iv) the reasonable reliance on, or the reasonable carrying out by
Forum or its agents or subcontractors of, any instructions or requests
of the Trust 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.
(c) Forum 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 Forum as a result of
Forum's bad faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement.
(d) At any time Forum may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust with respect to
any matter arising in connection with the services to be performed by Forum
under this Agreement, and, notwithstanding anything herein to the contrary,
Forum and any Forum Indemnitee 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. Forum, its agents and subcontractors shall be protected and indemnified
in reasonably acting upon (i) any paper or document furnished by or on behalf of
the Trust, 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 to Forum or its agents or subcontractors by (A) electronic
message, machine readable input, telex, CRT data entry or (B) 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 Forum
in person or by telephone, vocal telegram, electronic message 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 Trust. 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 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) If the Trust 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 reasonably rely on the validity and authenticity of
such instruction without undertaking any further inquiry as long as such
instruction is undertaken in conformity with reasonable security procedures
established by Forum from time to time.
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(f) The Trust has authorized or in the future may authorize Forum to
act as a "Mutual Fund Services Member" for the Trust 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 Trust 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.
(g) 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 Trust's Registration Statement
relating to the Shares of the Fund or Class becomes effective or the date of the
commencement of investment 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.
(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 Trust. Subject to the immediately preceding sentence, 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, if any, the original or copies of all books and
records maintained by Forum under this Agreement including, in the case of
records maintained on computer systems, copies of such records in
machine-readable form, and shall cooperate with, and provide reasonable
assistance to, the successor transfer agent in the establishment of the books
and records necessary to carry out the successor transfer agent's
responsibilities.
(d) The obligations of Sections 3, 7, 9, 10, 15, and 17 shall survive
any termination of this Agreement.
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SECTION 12. ADDITIONAL FUNDS AND CLASSES
In the event that 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 Forum or the
Trust may elect not to make any such series or classes subject to this
Agreement, which election must be made in writing to the other party.
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
Trust, subcontract for the performance hereof with any entity, including
affiliated persons of Forum, who agree to comply with the terms of this
Agreement; provided however, that Forum shall be as fully responsible to the
Trust for the acts and omissions of any subcontractor as Forum is for its own
acts and omissions.
SECTION 14. FORCE MAJEURE
Neither Forum nor the Trust shall 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; provided,
however, that in each specific case such circumstance shall be beyond the
reasonable control of the party seeking to apply this Force Majeure clause.
SECTION 15. 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 Forum agrees that, in asserting any rights or claims under this Agreement,
it shall look only to the assets and property of the Trust or the Fund to which
Forum's 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.
-13-
SECTION 16. TAXES, INSURANCE
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 Trust or any Shareholder or any purchase of Shares, excluding taxes
assessed against Forum for compensation received by it under this Agreement.
Forum shall notify the Trust should its insurance coverage with respect to
professional liability or errors and omissions coverage be canceled or reduced.
Such notification shall include the date of change and the reasons therefor.
Forum shall notify the Trust of any material claims against it with respect to
services performed under this Agreement, whether or not they may be covered by
insurance, and shall notify the Trust from time to time as may be appropriate of
the total outstanding claims made by Forum under its insurance coverage.
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 the Trust 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 places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
-14-
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
(j) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the 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) 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 "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the 1940 Act.
(n) A copy of the Agreement and Declaration of Trust establishing the
Trust is on file with the Secretary of The Commonwealth of Massachusetts, and
notice is hereby given that this Agreement is executed with respect to each Fund
on behalf of the Trust by officers of the Trust as officers and not individually
and that the obligations of or arising out of this Agreement are not binding
upon any of the trustees, officers or shareholders of the Trust individually but
are binding only upon the assets and property belonging to each Fund.
-15-
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.
UM INVESTMENT TRUST
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
President
FORUM SHAREHOLDER SERVICES, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxx
Director
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UM INVESTMENT TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
APPENDIX A
FUNDS OF THE TRUST:
UM Multi-Strategy Fund
CLASSES OF THE TRUST:
-A1-
UM INVESTMENT TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
APPENDIX B
FEES AND EXPENSES
(i) PER FUND ASSET CHARGE AS AN ANNUALIZED PERCENTAGE OF DAILY NET ASSETS:
o 0.125% (12.5 basis points) on first $30 million.
o 0.11% (11 basis points) on assets between $30 million and
$75 million.
o 0.10% (10 basis points) on assets between $75 million and
$100 million
o 0.075% (7.5 basis points) on assets between $100 million and
$150 million.
o 0.065% (6.5 basis points) on assets between $150 million and
$200 million
o 0.055% (5.5 basis points) on assets between $200 million and
$300 million.
o 0.04% (4 basis points) on assets over $300 million.
o Subject to a $3,750 per month minimum.
(ii) OUT-OF-POCKET AND RELATED EXPENSES
The Trust, on behalf of the applicable Fund, shall reimburse Forum for
all reasonable out-of-pocket and ancillary expenses in providing the
services described in this Agreement, including but not limited to the
reasonable 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) NSCC Mutual Fund Service Member fees and
expenses, (vii) outside proxy solicitors and tabulators, (viii) proxy
solicitation fees, (ix) microfilm, microfiche and document imaging and
(x) Forum's out-of-pocket costs relating to banking services (DDA
account, wire and ACH, check and draft clearing and lock box fees and
charges).
-B1-
