EXHIBIT 9(c)
▇▇▇▇▇▇▇▇ CAPITAL FUNDS
TRANSFER AGENCY AND FUND ACCOUNTING AGREEMENT
AGREEMENT made this 13th day of September, 1995, between ▇▇▇▇▇▇▇▇
Capital Funds (the "Trust"), a business trust organized under the laws of the
State of Delaware with its principal place of business at Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and Forum Financial Corp., a corporation organized under
the laws of the State of Delaware, having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Forum").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "Act"), as an open-end management investment company and
is authorized to issue interests (as defined in the Trust's Trust Instrument) in
separate series;
WHEREAS, the Trust desires that Forum perform interestholder and fund
accounting services for each of the portfolios of the Trust as listed in
Appendix A hereto (each a "Portfolio," and collectively the "Portfolios"), and
for other series that may be created in the future, and Forum is willing to
provide those services on the terms and conditions set forth in this Agreement;
and
WHEREAS, the Trust on behalf of each Portfolio desires to appoint Forum
as its transfer agent and fund accountant, and Forum desires to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
SECTION 1. TERMS OF APPOINTMENT; DUTIES OF FORUM
(a) Subject to the terms and conditions set forth in this Agreement,
the Trust, on behalf of each Portfolio, hereby employs and appoints Forum to act
as, and Forum agrees to act as, its transfer agent and fund accountant for the
authorized and issued interests of the Trust representing interests in each of
the respective Portfolios ("Interests").
(b) Forum shall be responsible for performing as agent, as of the date
of this Agreement, the services described in Appendix B attached hereto and made
a part hereof, as said appendix may be amended from time to time.
(c) Forum shall provide additional services to the Trust on behalf of
the Portfolios which may be agreed upon in writing between the Trust and Forum.
SECTION 2. FEES AND EXPENSES
(a) For its services hereunder Forum shall receive from the Trust, with
respect to each Portfolio, such transfer agency and fund accounting fees as are
listed in Appendix C attached hereto, as amended from time to time.
(b) Each Portfolio shall reimburse Forum for its ancillary costs (or
appropriate share of the costs) incurred in providing to that Portfolio any
transfer agency and fund accounting services hereunder, including but not
limited to (i) any and all forms and stationery used or specially prepared for
the purpose, (ii) postage, (iii) telephone services, (iv) bank fees, and (v)
electronic or facsimile transmission. Each Portfolio shall reimburse Forum for
all expenses and employee time attributable to any review of the Portfolio's
accounts and records by the Trust's independent public accountants or any
regulatory body outside of routine and normal periodic reviews and for all
expenses for services in connection with Forum's activities in effecting any
termination of this Agreement (except the termination of Forum for cause),
including expenses incurred by Forum to deliver the property of the Portfolio in
the possession of Forum to the Trust or other persons.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF FORUM
Forum represents and warrants to the Trust that:
(a) It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
(b) It is registered as a transfer agent under the Securities Exchange
Act of 1934, as amended ("1934 Act") and it is empowered under applicable laws
and by its Articles of Incorporation and By-Laws to enter into and perform this
Agreement.
(c) All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
(d) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to Forum that:
(a) It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware.
(b) It is empowered under applicable laws and by its Trust Instrument
to enter into and perform this Agreement.
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(c) All proceedings required by said Trust Instrument have been taken
to authorize it to enter into and perform this Agreement.
(d) It is an investment company registered under the 1940 Act.
(e) All interests of the Portfolios, when issued, shall be validly
issued, fully paid and non-assessable.
SECTION 5. RECORDKEEPING; INSPECTION OF RECORDS
(a) Forum shall prepare and maintain in such form and in such locations
as may be required by applicable regulation all records and documents relating
to the services provided to the Trust pursuant to this Agreement required to be
prepared and maintained by Forum or the Trust pursuant to the 1940 Act, the 1934
Act and the rules and regulations of the Securities and Exchange Commission and
the Internal Revenue Service.
(b) Forum shall notify the Trust of any request or demand for the
inspection of the Trust's interestholder records. Forum shall abide by the
Trust's instructions for granting or denying the inspection; provided, however,
Forum may grant the inspection without such instructions if it is advised by its
counsel that failure to do so will result in liability to Forum.
(c) Forum shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. The Trust, or the
Trust's authorized representatives, shall have access to such books and records
at all times during Forum's normal business hours. Upon the reasonable request
of the Trust, copies of any such books and records shall be provided promptly by
Forum to the Trust or the Trust's authorized representatives. In the event the
Trust designates a successor to any of Forum's obligations hereunder, Forum
shall, at the expense and direction of the Trust, transfer to such successor all
relevant books, records and other data established or maintained by Forum under
this Agreement. 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 hereunder are the
property of the Trust and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly to the
Trust on and in accordance with its request.
SECTION 6. INDEMNIFICATION
(a) The Trust shall, on behalf of the applicable Portfolio, indemnify
and hold Forum harmless against any losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) resulting from:
(i) any claim, demand, action or suit brought by any person other than
the Trust, including by an interestholder, which names Forum and/or the
Trust as a party and is not based on and does not result from Forum's
willful misfeasance, bad faith or gross negligence or reckless
disregard of duties, and arises out of or in connection with Forum's
performance hereunder; or
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(ii) any claim, demand, action or suit (except to the extent
contributed to by Forum's willful misfeasance, bad faith or gross
negligence or reckless disregard of duties) which results from the
negligence of the Trust, or from Forum's acting upon any instruction(s)
reasonably believed by it to have been executed or communicated by any
person duly authorized by the Trust, or as a result of Forum's acting
in reliance upon advice reasonably believed by Forum to have been given
by counsel for the Trust, or as a result of Forum's acting in reliance
upon any instrument reasonably believed by it to have been genuine and
signed, countersigned or executed by the proper person.
(b) Forum shall indemnify and hold the Trust harmless against any
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any claim, demand, action or suit brought by
any person other than Forum, which names the Trust and/or Forum as a party and
is based upon and arises out of Forum's willful misfeasance, bad faith or gross
negligence or reckless disregard of duties in connection with its performance
hereunder.
(c) In the event that either party requests the other to indemnify or
hold it harmless hereunder, the party requesting indemnification (the
Indemnified Party) shall inform the other party (the Indemnifying Party) of the
relevant facts known to Indemnified Party concerning the matter in question. The
Indemnified Party shall use reasonable care to identify and to promptly notify
the Indemnifying Party concerning any matter which presents, or appears likely
to present, a claim for indemnification. The Indemnifying Party shall have the
election of defending the Indemnified Party against any claim which may be the
subject of indemnification or of holding the Indemnified Party harmless
hereunder. In the event the Indemnifying Party so elects, it will so notify the
Indemnified Party and thereupon the Indemnifying Party shall take over defense
of the claim and, if so requested by the Indemnifying Party, the Indemnified
Party shall incur no further legal or other expenses related thereto for which
it shall be entitled to indemnity or to being held harmless hereunder; provided,
however, that nothing herein shall prevent the Indemnified Party from retaining
counsel at its own expense to defend any claim. Except with the Indemnifying
Party's prior written consent, the Indemnified Party shall in no event confess
any claim or make any compromise in any matter in which the Indemnifying Party
will be asked to indemnify or hold Indemnified Party harmless hereunder.
SECTION 7. STANDARD OF CARE; LIMITATION OF LIABILITY
(a) Forum shall not be liable for any action taken or not taken in good
faith and reasonably believed by Forum to be within the powers conferred upon it
under this Agreement; provided that nothing herein shall be deemed to protect,
or purport to protect, Forum against any liability to the Trust or to the
interestholders of the Trust to which it would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties hereunder or by reason of Forum's reckless disregard of its obligations
and duties hereunder.
(b) In the event of equipment failures beyond Forum's control, Forum
shall, at no additional expense to the Trust, take reasonable steps to minimize
service interruptions, but shall have no liability with respect thereto. Forum
shall enter into and shall maintain in effect with appropriate
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parties one or more agreements making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available or shall maintain a secondary site with processing capability.
(c) Subject to Section 7(b), Forum shall not be liable for delays or
errors occurring by reason of circumstances beyond its control, including but
not limited to acts of civil or military authority, national emergencies, work
stoppages, fire, flood, catastrophe, acts of God, insurrection, war, riot, or
failure of communication equipment of common carriers or power supply.
SECTION 8. COVENANTS OF THE TRUST AND FORUM
(a) The Trust, on behalf of Portfolio, promptly shall furnish to Forum
the following:
(i) A certified copy of the resolution of the Trustees of the
Trust authorizing the appointment of Forum and the execution
and delivery of this Agreement.
(ii) A copy of the Trust Instrument of the Trust and all
amendments thereto.
(b) Forum hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
(c) 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.
(d) In case of any requests or demands for the inspection of the
interestholder records of the Trust, Forum will endeavor to notify the Trust and
to secure instructions from an authorized officer of the Trust as to such
inspection. Forum reserves the right, however, to exhibit the interestholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the interestholder records to such person.
SECTION 9. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each
Portfolio on the later of the date of this Agreement or the date of commencement
of operations of the Trust, and with respect to each future portfolio of the
Trust on the date this Agreement or Appendix A hereto is amended. 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 Portfolios.
(b) This Agreement shall continue in effect with respect to a Portfolio
for a period of one year from its effectiveness and shall continue in effect for
successive twelve-month periods;
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provided, however, that continuance is specifically approved at least annually
(i) by the Board or by a vote of a majority of the outstanding voting interests
of the Portfolio and (ii) by a vote of a majority of Trustees of the Trust who
are not parties to this agreement or interested persons of any such party (other
than as Trustees of the Trust); provided further, however, that if the
continuation of this agreement is not approved as to a Portfolio, Forum may
continue to render to the Portfolio the services described herein in the manner
and to the extent permitted by the Act and the rules and regulations thereunder.
(c) This Agreement may be terminated with respect to a Portfolio at any
time, without the payment of any penalty, (i) by the Board on 60 days' written
notice to Forum or (ii) by Forum on 60 days' written notice to the Trust.
SECTION 10. ASSIGNMENT; DELEGATION
(a) This Agreement shall extend to and shall bind the parties hereto
and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Trust without the written consent of
Forum or by Forum without the written consent of the Trust, authorized or
approved by a resolution of the Board. Notwithstanding the foregoing, either
party may assign this Agreement without the consent of the other party so long
as the assignee is an affiliate, parent or subsidiary of the assigning party and
is qualified to act under applicable law.
(b) Forum may contract with other qualified service providers to
perform any of the services contemplated by this Agreement; provided, that Forum
shall not thereby be relieved of any of its obligations hereunder. Forum may
subcontract any or all of its functions to one or more qualified sub-transfer
agents or processing agents. Forum may pay those agents for their service, but
not such payment will increase Forum's compensation from the Trust.
SECTION 11. NOTICES
Any notice or other communication required by or permitted to be given
in connection with this Agreement shall be in writing, and shall be delivered in
person, sent by first-class mail, postage prepaid, or sent by overnight
delivery, postage prepaid, to the respective parties at the following addresses
or such other address as the parties may designate in writing by the same
methods:
If to the Trust:
▇▇▇▇▇▇▇▇ Capital Funds
Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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If to Forum:
Forum Financial Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
SECTION 12. LIMITATION OF LIABILITY OF THE TRUSTEES AND INTERESTHOLDERS
The Trustees of the Trust and the interestholders of the Portfolios
shall not be liable for any obligations of the Trust or of the Portfolios 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 Portfolio 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 interestholders of
the Portfolios.
SECTION 13. MISCELLANEOUS
(a) 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) 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.
(c) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
(d) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(e) This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Delaware.
(f) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
(g) The terms "vote of a majority of the outstanding voting interests,"
"interested person," "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the Act to the terms "vote of a majority of the
outstanding voting securities," "interested person," "affiliated person" and
"assignment," respectively.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
▇▇▇▇▇▇▇▇ CAPITAL FUNDS
/s/ ▇▇▇▇▇ ▇. Luckyn-▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. Luckyn-▇▇▇▇▇▇
President
FORUM FINANCIAL CORP.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
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▇▇▇▇▇▇▇▇ CAPITAL FUNDS
TRANSFER AGENCY AND FUND ACCOUNTING AGREEMENT
APPENDIX A
PORTFOLIOS OF THE TRUST
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PORTFOLIOS
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AS OF SEPTEMBER 13, 1995
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International Equity Fund
▇▇▇▇▇▇▇▇ Emerging Markets Fund Institutional Portfolio
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AS OF MARCH 15, 1996
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▇▇▇▇▇▇▇▇ International Smaller Companies Portfolio
▇▇▇▇▇▇▇▇ Global Asset Allocation Portfolio
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AS OF MAY 16, 1996
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▇▇▇▇▇▇▇▇ U.S. Smaller Companies Portfolio
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AS OF NOVEMBER 26, 1996
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▇▇▇▇▇▇▇▇ ▇▇ Core Portfolio
▇▇▇▇▇▇▇▇ Japan Portfolio
▇▇▇▇▇▇▇▇ European Growth Portfolio
▇▇▇▇▇▇▇▇ Asian Growth Portfolio
▇▇▇▇▇▇▇▇ United Kingdom Portfolio
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AS OF SEPTEMBER 18, 1997
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▇▇▇▇▇▇▇▇ Global Growth Portfolio
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▇▇▇▇▇▇▇▇ CAPITAL FUNDS
TRANSFER AGENCY AND FUND ACCOUNTING AGREEMENT
APPENDIX B
SERVICES
A. Forum shall prepare and maintain, on behalf of the Trust, the following books
and records of each Portfolio pursuant to Rule 31a-1 under the Act (the "Rule"):
(i) Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of
cash and all other debits and credits, as required by sub-section
(b)(1) of the Rule;
(ii) Journals and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, as required by
subsection (b)(2) of the Rule;
(iii) A record of each brokerage order given by or on behalf of the
Trust for, or in connection with, the purchase or sale of securities,
and all other portfolio purchases or sales, as required by sub-sections
(b)(5) and (b)(6) of the Rule;
(iv) A record of all options, if any, in which the Trust has any direct
or indirect interest or which the Trust has granted or guaranteed and a
record of any contractual commitments to purchase, sell, receive or
deliver any property as required by subsection (b)(7) of the Rule;
(v) A monthly trial balance of all ledger accounts (except shareholder
accounts) as required by sub-section (b)(8) of the Rule; and
(vi) Other records required by the Rule or any successor rule or
pursuant to interpretations thereof to be kept by open-end management
investment companies, but limited to these provisions of the Rule
applicable to portfolio and interestholder transactions and as agreed
upon between the parties hereto.
B. Forum shall perform the following accounting services:
(i) Calculate the net asset value of each Portfolio and each
interestholder thereof with the frequency prescribed in each
Portfolio's then-current Registration Statement;
(ii) Calculate and track each item of income, gain, loss, deduction and
credit, if any, and apply such items to each interestholder as required
by applicable accounting rules;
(iii) Maintain such accounts and perform such allocations as is
required by each Portfolio's Capital Account Establishment and
Maintenance Policies;
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(iv) Calculate the yield, effective yield, tax equivalent yield and
total return for each Portfolio, as applicable, and such other measure
of performance as may be agreed upon between the parties hereto;
(v) Provide the Trust and such other persons as the Trust's
administrator or sub-administrator may direct with the following
reports: (a) a current security position report, (b) a summary report
of transactions and pending maturities (including the principal, cost,
and accrued interest on each portfolio security in maturity date
order), and (c) a current cash position and projection report;
(vi) Prepare and record, as of each time when the net asset value of a
Portfolio is calculated or as otherwise directed by the Trust's
administrator or sub-administrator, either: (a) a valuation of the
assets in the Portfolio (based upon the use of outside services
normally used and contracted for this purpose by Forum in the case of
securities for which information and market price or yield quotations
are readily available and based upon evaluations conducted in
accordance with the Trust's or the Trust's administrator's instructions
in the case of all other assets) or (b) a calculation confirming that
the market value of the Portfolio's assets does not deviate from the
amortized cost value of those assets by more than a specified
percentage agreed to from time to time by Forum and the Trust;
(vii) Obtain necessary information from the Trust and the Trust's
administrator in order to prepare the Trust's Form N-SAR;
(viii) Assist in the preparation of support schedules necessary for the
completion of Federal and State income tax returns of the Portfolios;
(ix) Monitor each Portfolio's status as if it were a regulated
investment company under Subchapter M of the Internal Revenue Code of
1986, as amended;
(x) Assist the Trust's independent accountants and, upon approval of
the Trust or the Trust's administrator, any regulatory body in any
requested review of the Trust's books and records maintained by Forum;
(xi) Prepare semi-annual financial statements of each Portfolio; and
(xii) Prepare other periodic reports to shareholders and the Securities
and Exchange Commission and such other reports as may be agreed to from
time to time and provide information typically supplied in the
investment company industry to companies that track or report the
price, performance or other information with respect to investment
companies.
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▇▇▇▇▇▇▇▇ CAPITAL FUNDS
TRANSFER AGENCY AND FUND ACCOUNTING AGREEMENT
APPENDIX C
COMPENSATION
TRANSFER AGENCY SERVICES
For its transfer agency services, Forum shall receive a fee of $12,000 per year
with respect to each Portfolio, plus $25 per interestholder account, such
amounts to be computed and paid monthly in advance by the Trust.
FUND ACCOUNTING SERVICES
Standard Fee per Series $36,000/year
Plus additional surcharges for each of:
Global or International Funds $24,000/year
Tax Free Money Market Funds $12,000/year
Series with more than 25% of
net assets invested in asset
backed securities $1000/month
Series with more than 50% of
net assets invested in asset
backed securities $1000/month
Series with more than 100
security positions $1,000/month
Series with a monthly portfolio
turnover rate of 10% or greater $1,000/month
Monthly surcharges are determined based upon the total assets or
security positions as of the end of the prior month and on the portfolio
turnover rate for the prior month. Portfolio turnover rate shall have the
meaning ascribed thereto in Securities and Exchange Commission Form N-1A.
The rates set forth above shall remain fixed through December 31, 1995.
On January 1, 1996, and on each successive January 1, the rates shall be
adjusted to reflect changes in the Consumer Price Index for the preceding
calendar year, as published by the U.S. Department of Labor, Bureau of Labor
Statistics.