EXHIBIT 23(E)
UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT (the "Agreement") is made as of
_____________, 2005, by and between Forward Funds (f/k/a Emerald Mutual Funds),
a Delaware statutory trust (the "Fund"), and Citco Mutual Fund Distributors,
Inc., a Delaware corporation (the "Underwriter").
WHEREAS, the Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), and a successor of The HomeState Group, a Pennsylvania common law tust,
pursuant to Rule 414 under the Securities Act of 1933; and
WHEREAS, the Fund is authorized by its Declaration of Trust to issue
separate Portfolios of shares representing interests in separate investment
portfolios (the "Portfolios"); and
WHEREAS, The Fund has authorized the issuance of shares of beneficial
interest ("Shares") in the Portfolios which are identified on Exhibit A attached
hereto, which Exhibit A may be amended from time to time by mutual agreement of
the Fund and Underwriter; and
WHEREAS, Underwriter is a broker-dealer registered with the Securities
and Exchange Commission and a member in good standing of the National
Association of Securities Dealers, Inc., (the "NASD"); and
WHEREAS, the parties desire to reflect the reorganization of The
HomeState Group into the Fund, and hereby further amend restate that certain
amended and restated underwriting agreement, dated December 10, 2004, which
amended and restate the original underwriting agreement dated September 30,
2002;
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. APPOINTMENT. The Fund hereby appoints Underwriter as exclusive agent
for the distribution of Shares of the Portfolios listed in Exhibit A
hereto, and Underwriter hereby accepts such appointment under the terms
of this Agreement.
Notwithstanding any other provision hereof, the Fund may terminate,
suspend or withdraw the offering of Shares of any Portfolio whenever,
in its sole discretion, it deems such action to be desirable.
2. SALE AND REPURCHASE OF SHARES.
(a) Underwriter, as agent for the Fund, will sell Shares to the public
against orders therefore at the public offering price, all such
sales to comply with the provisions of the 1940 Act and the rules
and regulations of the Securities and Exchange Commission
promulgated thereunder.
(b) Underwriter will also have the right to take, as agent for the
Fund, all actions, which, in Underwriter's judgment, are reasonably
necessary and proper to carry into effect the distribution of the
Shares.
(c) The net asset value of the Shares of each Portfolio (or class of
Shares of a Portfolio) shall be determined in the manner provided
in the Fund's then current Registration Statement, and when
determined shall be applicable to transactions as provided for in
the Registration Statement. The net asset value of the Shares of
each Portfolio (or each class of Shares of a Portfolio) shall be
calculated by the Fund or by another person on behalf of the Fund.
Underwriter shall have no duty to inquire into nor shall it have
any liability for the accuracy of the net asset value per share as
calculated.
On every sale of Shares, the Fund shall receive the applicable net
asset value of the Shares promptly, but in no event later than the
third business day following the date on which Underwriter shall
have received an order for the purchase of the Shares.
(d) Upon receipt of purchase instructions, Underwriter will transmit
such instructions to the Fund or its transfer agent for
registration of the Shares purchased.
(e) Nothing in this Agreement shall prevent Underwriter or any
affiliated person (as defined in the 0000 Xxx) of Underwriter from
acting as underwriter or distributor for any other person, firm or
corporation (including other investment companies) or in any way
limit or restrict Underwriter or any such affiliated person from
buying, selling or trading any securities for its or their own
account or for the accounts of others for whom it or they may be
acting; provided, however, that Underwriter expressly represents
that it will undertake no activities which, in its judgment, will
adversely affect the performance of its obligations to the Fund
under this Agreement.
(f) Underwriter, as agent of the Fund and for the account of the
Portfolio(s), may repurchase the Shares at such prices and upon
such terms and conditions as shall be specified in the Fund's then
current Registration Statement. At the end of each business day,
the Underwriter shall notify the Fund and the Fund's transfer agent
of the number of Shares redeemed for each Portfolio, and the
identity of the shareholders or dealers offering Shares for
repurchase. Upon such notice and acceptance by the Fund, the Fund
shall pay the Underwriter the net asset value of the redeemed
shares in cash or in the form of a credit against monies due the
Fund from the Underwriter as proceeds from the sale of Shares.
Subject to applicable law, the Fund reserves the right to suspend
such repurchase right upon written notice to the Underwriter. The
Underwriter further agrees to act as agent for the Fund to receive
and transmit promptly to the Fund's transfer agent, shareholder and
dealer requests for redemption of Shares in the Portfolio(s).
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3. SALES OF SHARES BY THE FUND. The Fund reserves the right to issue or
sell Shares of the Portfolio(s) directly to the public at any time.
4. BASIS OF SALE OF SHARES. Underwriter shall not be obligated to sell any
specific number of Shares, and, as agent for the Fund, undertakes to
sell Shares of the Portfolio(s) on a "best effort" basis only against
orders therefore.
5. COMPLIANCE WITH NASD AND GOVERNMENT RULES.
(a) Underwriter will conform to the Rules of Fair Practice of the NASD
and the securities laws of any jurisdiction in which it sells
Shares of the Portfolio(s).
(b) The Fund agrees to furnish to the Underwriter sufficient copies of
any agreements, plans or other materials it intends to use in
connection with sales of Shares in adequate time for the
Underwriter to file and clear them with the proper authorities
before they are put in use, and not to use them until so filed and
cleared.
(c) Underwriter, at its own expense, will qualify as dealer, broker, or
otherwise, under all applicable State or federal laws in order that
Shares may be sold in such States as may be mutually agreed upon by
the parties, except for expenses described in Section 7 hereto,
which will be paid by the Fund or the investment adviser to the
Fund, as appropriate.
(d) Underwriter shall not make, in connection with any sale or
solicitation of a sale of the Shares, any representations
concerning the Shares except those contained in the Fund's then
current prospectus and statement of additional information covering
the Shares and in printed information approved by the Fund as
information supplemental to such prospectus and statement of
additional information. Copies of the Fund's then effective
prospectus and statement of additional information and any such
printed supplemental information will be supplied to Underwriter in
reasonable quantities upon request.
6. RECORDS TO BE SUPPLIED BY FUND. The Fund shall furnish to Underwriter
copies of all information, financial statements and other papers which
Underwriter may reasonably request for use in connection with the
distribution of Shares of the Portfolio(s).
7. EXPENSES TO BE BORNE BY FUND. The Fund will bear the following
expenses:
(a) preparation, setting in type, and printing of sufficient copies of
the prospectus and statement of additional information for
distribution to shareholders, and the distribution to shareholders
of the prospectus and statement of additional information;
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(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal securities law;
(d) qualification of the Shares for sale in the jurisdictions
designated by Fund and Underwriter;
(e) maintaining facilities for the issue and transfer of the Shares;
(f) supplying information, prices and other data to be furnished by the
Fund under this Agreement; and
(g) any original issue taxes or transfer taxes applicable to the sale
or delivery of the Shares of certificates therefore.
8. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold the Underwriter, its
officers, and directors, and any person who controls the
Underwriter within the meaning of Section 15 of the Securities Act
of 1933 (the "1933 Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), free and harmless from
and against any and all claims, demands or liabilities and expenses
(including the cost of investigating or defending such claims,
demands or liabilities and any counsel fees incurred in connection
therewith) which the Underwriter, its officers, directors or any
such controlling persons may incur under the 1933 Act, the 1934
Act, or under common law or otherwise, arising out of or based upon
any untrue statement of a material fact contained in the Fund's
Registration Statement or arising out of or based upon any alleged
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such claims, demands, liabilities or expenses arise out
of or are based upon any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with information furnished in writing by the Underwriter
to the Fund for use in the Registration Statement. The Underwriter
agrees to comply with all of the applicable terms and provisions of
the 0000 Xxx.
(b) The Underwriter agrees to indemnify, defend, and hold the Fund, its
officers, Trustees, employees shareholders and agents, and any
person who controls the Fund within the meaning of Section 15 of
the 1933 Act of Section 20 of the 1934 Act, free and harmless from
and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending against such
claims, demands or liabilities and any counsel fees incurred in
connection therewith) which the Fund, its Trustees, officers,
employees, shareholders and agents, or any such controlling person
may incur under the 1933 Act, the 1934 Act or under common law or
otherwise arising out of or based upon any untrue statement of a
material fact contained in information furnished in writing by the
Underwriter to the Fund for use in the Registration Statement, or
arising out of or based upon any omission or alleged omission to
state a material fact in connection with such information required
to be stated in the Registration Statement necessary to make such
information not misleading.
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(c) A party seeking indemnification hereunder (the "Indemnitee") shall
give prompt written notice to the party from whom indemnification
is sought ("the Indemnitor") of a written assertion or claim of any
threatened or pending legal proceeding which may be subject to
indemnity under this Section; provided, however, that failure to
notify the Indemnitor of such written assertion or claim shall not
relieve the indemnitor of any liability arising from this Section.
The Indemnitor shall be entitled, if it so elects, to assume the
defense of any suit brought to enforce a claim subject to this
Agreement and such defense shall be conducted by counsel chosen by
the Indemnitor and satisfactory to the Indemnitee; provided,
however, that if the defendants include both the Indemnitee and the
Indemnitor, and the Indemnitee shall have reasonably concluded that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnitor
("conflict of interest"), the Indemnitor shall have the right to
select separate counsel acceptable to the Indemnitee to defend such
claim on behalf of the Indemnitee. In the event that the Indemnitor
elects to assume the defense of any suit pursuant to the preceding
sentence and retains counsel satisfactory to the Indemnitee, the
Indemnitee shall bear the fees and expenses of additional counsel
retained by it except for reasonable investigation costs which
shall be borne by the Indemnitor. If the Indemnitor (i) does not
elect to assume the defense of a claim, (ii) elects to assume the
defense of a claim but chooses counsel that is not satisfactory to
the Indemnitee or (iii) has no right to assume the defense of a
claim because of a conflict of interest, the Indemnitor shall
advance or reimburse the Indemnitee, at the election of the
Indemnitee, reasonable fees and disbursements of any counsel
retained by Indemnitee, including reasonable investigation costs.
9. ADVANCES OF EXPENSES. The Fund shall advance attorney's fees or other
expenses incurred by a Covered Person in defending a proceeding only to
the extent permitted by the 1933 Act and the 1940 Act.
10. TERMINATION AND AMENDMENT OF THIS AGREEMENT. This Agreement shall
automatically terminate, without the payment of any penalty, in the
event of its assignment. This Agreement may be amended only if such
amendment is approved (i) by Underwriter, (ii) either by action of the
Board of Trustees of the Fund or at a meeting of the Shareholders of
the Fund by the affirmative vote of a majority of the outstanding
Shares, and (iii) by a majority of the Trustees of the Fund who are not
interested persons of the Fund or of Underwriter, by vote cast in
person at a meeting called for the purpose of voting on such approval.
Either the Fund or Underwriter may terminate this Agreement at any time
on sixty (60) days' written notice delivered or mailed by registered
mail, postage prepaid, to the other party.
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11. EFFECTIVE PERIOD OF THIS AGREEMENT. Unless terminated automatically as
set forth in Section 10 of this Agreement, this Agreement shall take
effect upon its execution and shall remain in full force and effect
until September 30, 2005, and shall remain in full force and effect
from year to year thereafter, subject to annual approval (i) by
Underwriter, (ii) by the Board of Trustees of the Fund or by vote of a
majority of the outstanding Shares, and in either case (iii) by a
majority of the Trustees of the Fund who are not interested persons of
the Fund or of Underwriter, by vote cast in person at a meeting called
for the purpose of voting on such approval.
12. LIMITATION OF FUND'S LIABILITY. The Term "Covered Persons" means and
refers to the trustees and officers from time to time serving under the
Fund's Declaration of Trust as the same may subsequently thereto have
been, or subsequently hereto be, amended. It is expressly agreed that
the obligations of the Fund hereunder shall not be binding upon any of
the Covered Persons, Shareholders, nominees, agents or employees of the
Fund personally, but bind only the property of the Fund, as provided in
Fund's Declaration of Trust. The execution and delivery of this
Agreement have been authorized by the Trustees of the Fund and signed
by the officers of the Fund, acting as such, and neither such
authorization by such Trustees, nor such execution and delivery by such
officers shall be deemed to have been made by any of them individually
or to impose any liability on them personally, but shall bind only the
property of the Fund as provided in its Declaration of Trust.
13. SUCCESSOR INVESTMENT COMPANY. Unless this Agreement has been terminated
in accordance with Section 10, the terms and provisions of this
Agreement shall become automatically applicable to any investment
company which is a successor to the Fund as a result of a
reorganization, recapitalization or change of domicile.
14. SEVERABILITY. In the event any provision of this Agreement is
determined to be void or unenforceable, such determination shall not
affect the remainder of this Agreement, which shall remain in full
force and effect.
15. QUESTIONS OF INTERPRETATION.
(a) This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term
or provision of the 1940 Act shall be resolved by reference to such
term or provision of the 1940 Act and its interpretation thereof,
if any, by the United States courts; or in the absence of any
controlling decision of any such court, by rules, regulations or
orders of the Securities and Exchange Commission issued pursuant to
said Act. In addition, where the effect of a requirement of the
1940 Act, reflected in any provision of this Agreement is revised
by rule, regulation or order of the Securities and Exchange
Commission, such provision shall be deemed to incorporate the
effect of such rule, regulation or order.
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16. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at
such address as such other party may designate for the receipt of such
notice. Until further notice to the other party, it is agreed that for
this purpose the address of the Fund is 0000 Xxxxxx Xxxx, X.X. Xxx
00000, Xxxxxxxxx, XX 00000-0000, Attn: Xx. Xxxxxx X. Xxxxx XX, and of
the Underwriter shall be 00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000, Attn: Xx. Xxxx Xxxxx.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
18. BINDING EFFECT. Each of the undersigned expressly warrants and
represents that he has the full power and authority to sign this
Agreement on behalf of the party indicated, and that his signature will
operate to bind the party indicated to the foregoing terms.
19. FORCE MAJEURE. If Underwriter shall be delayed in the performance of
its services or prevented entirely or in part from performing services
due to acts of God, interruption of power or other utility,
transportation or communication services, acts of civil or military
authority, sabotages, national emergencies, explosion, flood, accident,
earthquake or other catastrophe, fire, strike or other labor problems,
legal action, present or future law, governmental order, rule or
regulation, or shortages of suitable parts, materials, labor or
transportation, such delay or non-performance shall be excused for a
reasonable time, subject to restrictions and requirements of
performance as may be established by federal or state law.
20. COMPENSATION. The Fund shall pay for the services to be provided by
Underwriter under this Agreement in accordance with, and in the manner
set forth in, Exhibit B attached hereto, as such Exhibit B may be
amended from time to time by agreement of the parties.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, Underwriter's
compensation for that part of the month in which this Agreement is in
effect shall be prorated in a manner consistent with the calculation of
the fees as set forth in Exhibit B. Payment of Underwriter's
compensation for the preceding month shall be made promptly.
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IN WITNESS WHEREOF, the Fund and Underwriter have each caused this
Agreement to be signed on its behalf, all as of the day and year first above
written.
ATTEST: FORWARD FUNDS
____________________ By: _________________________
Name: _______________________
Title: President
ATTEST: CITCO MUTUAL FUND DISTRIBUTORS, INC.
____________________ By: _________________________
Name: Xxxx Xxxxx
Title: President
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UNDERWRITING AGREEMENT
EXHIBIT A
The following Portfolios and the share classes thereof marked with an
"X" are hereby made subject to the Underwriting Agreement dated as of
_______________, 2005, with Citco Mutual Fund Distributors, Inc. ("Underwriter")
and Forward Funds (the "Fund"), and each agree to be bound by all the terms and
conditions contained in said Agreement:
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PORTFOLIOS CLASS A CLASS B CLASS C
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The Forward Emerald Growth Fund X None X
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The Forward Emerald Banking & Finance Fund X None X
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The Forward Emerald Technology Fund X None X
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UNDERWRITING AGREEMENT
EXHIBIT B
The following fees are hereby made subject to the Underwriting
Agreement dated as of _______________, 2005, with Citco Mutual Fund
Distributors, Inc. ("Underwriter") and Forward Funds (the "Fund"), and each
agree to be bound by all the terms and conditions contained in said Agreement.
Underwriter will charge a flat fee of $12,000 per year for underwriting services
provided for Portfolios of the Fund that offer No-Load Shares only.
Underwriter will receive the underwriting concessions set forth in the Fund's
current prospectus and/or statement of additional information as full
compensation for underwriting services provided for Portfolios of the Fund that
offer Share Classes that charge sales loads.
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