ICM SERIES TRUST
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 1st day of January, 2002, and amended and
restated as of the "Effective Date" defined below, by and between ICM Series
Trust, a Massachusetts business trust, with its principal office and place of
business at 00 Xxxxxx Xxxxx Xxxxxx, Xxxxxx, XX 00000 (the "Trust"), and Forum
Fund 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 ("1940 Act"), as an open-end management investment company and
may issue its shares of beneficial interest, no par value ("Shares") in separate
series and classes; and
WHEREAS, Forum is registered under the Securities Exchange Act of 1934,
as amended ("1934 Act"), as a broker-dealer and is engaged in the business of
selling shares of registered investment companies either directly to purchasers
or through other financial intermediaries;
WHEREAS, the Trust offers shares in various 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 being herein
referred to as a "Fund," and collectively as the "Funds") and the Trust offers
shares of various classes of each Fund as listed in Appendix A hereto (each such
class together with all other classes subsequently established by the Trust in a
Fund being herein referred to as a "Class," and collectively as the "Classes");
and
WHEREAS, the Trust desires that Forum offer, as principal underwriter,
the Shares of each Fund and Class thereof to the public and Forum is willing to
provide those services on the terms and conditions set forth in this Agreement
in order to promote the growth of the Funds and facilitate the distribution of
the Shares;
WHEREAS, on or about October 1, 2004, the ownership of Forum will
change such that an "assignment," as defined in the 1940 Act, will occur;
WHEREAS, such assignment will require that this Agreement be
re-executed in the same form as previously approved; and
WHEREAS, this amended and restated Agreement will take effect
immediately after such change in control occurs (the "Effective Date").
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 hereby appoints Forum, and Forum hereby agrees, to act as
distributor of the Shares for the period and on the terms set forth in this
Agreement.
(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, "Organizational 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
("Securities Act"), or the 1940 Act ("Registration Statement"); (iii) the
current prospectuses and statements of additional information of each Fund and
Class thereof (collectively, as currently in effect and as amended or
supplemented, the "Prospectus"); (iv) each current plan of distribution or
similar document adopted by the Trust under Rule 12b-1 under the 1940 Act
("Plan") and each current shareholder service plan or similar document adopted
by the Trust ("Service Plan"); and (v) all procedures adopted by the Trust with
respect to the Funds (e.g., repurchase agreement procedures), and shall promptly
furnish Forum with all amendments of or supplements to the foregoing. The Trust
shall deliver to Forum: (x) 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; (y) a copy of all proxy statements and
related materials relating to the Funds; and (z) any other documents, materials
or information that Forum shall reasonably request to enable it to perform its
duties pursuant to this Agreement.
SECTION 2. EXCLUSIVE NATURE OF DUTIES
Forum shall be the exclusive representative of the Trust to act as
distributor of the Funds except that the rights given under this Agreement to
Forum shall not apply to: (i) Shares issued in connection with the merger,
consolidation or reorganization of any other investment company or series or
class thereof with a Fund or Class thereof; (ii) a Fund's acquisition by
purchase or otherwise of all or substantially all of the assets or stock of any
other investment company or series or class thereof; (iii) the reinvestment in
Shares by a Fund's shareholders of dividends or other distributions; or (iv) any
other offering by the Trust of securities to its shareholders (collectively
"exempt transactions").
SECTION 3. OFFERING OF SHARES
(a) Forum shall have the right to buy from the Trust the Shares needed
to fill unconditional orders for unsold Shares of the Funds as shall then be
effectively registered under the Securities Act placed with Forum by investors
or selected dealers or selected agents (each as defined in Section 11 hereof)
acting as agent for their customers or on their own behalf. Alternatively, Forum
may act as the Trust's agent, to offer, and to solicit offers to subscribe to,
unsold Shares of the Funds as shall then be effectively registered under the
Securities Act. Forum will promptly forward all orders and subscriptions to the
Trust. The price that Forum shall pay for Shares purchased from the Trust shall
be the net asset value per Share, determined as set forth in Section 3(c)
hereof, used in determining the public offering price on which the orders are
based. Shares purchased by Forum are to be resold by Forum to investors at the
public offering price, as set forth in Section 3(b) hereof, or to selected
dealers or selected agents acting as agent for their customers that have entered
into agreements with Forum pursuant to Section 11 hereof or acting on their own
behalf. The Trust reserves the right to sell Shares directly to investors
through subscriptions received by the Trust, but no such direct sales shall
affect the sales charges due to Forum hereunder.
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(b) The public offering price of the Shares of a Fund, i.e., the price
per Share at which Forum or selected dealers or selected agents may sell Shares
to the public or to those persons eligible to invest in Shares as described in
the applicable Prospectus, shall be the public offering price determined in
accordance with the then currently effective Prospectus of the Fund or Class
thereof under the Securities Act relating to such Shares. The public offering
price shall not exceed the net asset value at which Forum, when acting as
principal, is to purchase such Shares, plus, in the case of Shares for which an
initial sales charge is assessed, an initial charge equal to a specified
percentage or percentages of the public offering price of the Shares as set
forth in the current Prospectus relating to the Shares. In the case of Shares
for which an initial sales charge may be assessed, Shares may be sold to certain
classes of persons at reduced sales charges or without any sales charge as from
time to time set forth in the current Prospectus relating to the Shares. The
Trust will advise Forum of the net asset value per Share at each time as the net
asset value per Share shall have been determined by the Trust and at such other
times as Forum may reasonably request.
(c) The net asset value per Share of each Fund or Class thereof shall
be determined by the Trust, or its designated agent, in accordance with and at
the times indicated in the applicable Prospectus on each Fund business day in
accordance with the method set forth in the Prospectus and guidelines
established by the Board.
(d) The Trust reserves the right to suspend the offering of Shares of a
Fund or of any Class thereof at any time in the absolute discretion of the
Board, and upon notice of such suspension Forum shall cease to offer Shares of
the Funds or Classes thereof specified in the notice.
(e) The Trust, or any agent of the Trust designated in writing to Forum
by the Trust, shall be promptly advised by Forum of all purchase orders for
Shares received by Forum and all subscriptions for Shares obtained by Forum as
agent shall be directed to the Trust for acceptance and shall not be binding
until accepted by the Trust. Any order or subscription may be rejected by the
Trust; provided, however, that the Trust will not arbitrarily or without
reasonable cause refuse to accept or confirm orders or subscriptions for the
purchase of Shares. The Trust or its designated agent will confirm orders and
subscriptions upon their receipt, will make appropriate book entries and, upon
receipt by the Trust or its designated agent of payment thereof, will issue such
Shares in certificated or uncertificated form pursuant to the instructions of
Forum. Forum agrees to cause such payment and such instructions to be delivered
promptly to the Trust or its designated agent.
SECTION 4. REPURCHASE OR REDEMPTION OF SHARES BY THE TRUST
(a) Any of the outstanding Shares of a Fund or Class thereof may be
tendered for redemption at any time, and the Trust agrees to redeem or
repurchase the Shares so tendered in accordance with its obligations as set
forth in the Organizational Documents and the Prospectus relating to the Shares.
The price to be paid to redeem or repurchase the Shares of a Fund of Class
thereof shall be equal to the net asset value calculated in accordance with the
provisions of Section 3(c) hereof less, in the case of Shares for which a
deferred sales charge is assessed, a deferred sales charge equal to a specified
percentage or percentages of the net asset value of those Shares as from time to
time set forth in the Prospectus relating to those Shares [or their
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cost, whichever is less.] Shares of a Fund or Class thereof for which a deferred
sales charge may be assessed and that have been outstanding for a specified
period of time may be redeemed without payment of a deferred sales charge as
from time to time set forth in the Prospectus relating to those Shares.
(b) The Trust or its designated agent shall pay (i) the total amount of
the redemption price consisting of the redemption price less any applicable
deferred sales charge to the redeeming shareholder or its agent and (ii) except
as may be otherwise required by the Rules of Fair Practice (the "Rules") of the
National Association of Securities Dealers Regulation, Inc. (the "NASD") and any
interpretations thereof, any applicable deferred sales charges to Forum in
accordance with Forum's instructions on or before the fifth business day (or
such other earlier business day as is customary in the investment company
industry) subsequent to the Trust or its agent having received the notice of
redemption in proper form.
(c) Redemption of Shares or payment therefor may be suspended at times
when the New York Stock Exchange is closed for any reason other than its
customary weekend or holiday closings, when trading thereon is restricted, when
an emergency exists as a result of which disposal by the Trust of securities
owned by a Fund is not reasonably practicable or it is not reasonably
practicable for the Trust fairly to determine the value of a Fund's net assets,
or during any other period when the SEC so requires or permits.
SECTION 5. DUTIES AND REPRESENTATIONS OF FORUM
(a) Forum shall use reasonable efforts to sell Shares of the Funds upon the
terms and conditions contained herein and in the then current Prospectus. Forum
shall devote reasonable time and effort to effect sales of Shares but shall not
be obligated to sell any specific number of Shares. The services of Forum to the
Trust hereunder are not to be deemed exclusive, and nothing herein contained
shall prevent Forum from entering into like arrangements with other investment
companies so long as the performance of its obligations hereunder is not
impaired thereby.
(b) In selling Shares of the Funds, Forum shall use its best efforts in all
material respects duly to conform with the requirements of all federal and state
laws relating to the sale of the Shares. None of Forum, any selected dealer, any
selected agent or any other person is authorized by the Trust to give any
information or to make any representations other than as is contained in a
Fund's Prospectus or any advertising materials or sales literature specifically
approved in writing by the Trust or its agents.
(c) Forum shall adopt and follow procedures for the confirmation of sales
to investors and selected dealers or selected agents, the collection of amounts
payable by investors and selected dealers or selected agents on such sales, and
the cancellation of unsettled transactions, as may be necessary to comply with
the requirements of the 1934 Act and the NASD.
(d) 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;
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(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 and perform this Agreement;
(v) It has access to the necessary facilities, equipment and personnel to
perform its duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of Forum, enforceable against Forum in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties; and
(vii) It is registered under the 1934 Act with the SEC as a broker-dealer,
it is a member in good standing of the NASD, it will abide by the rules and
regulations of the NASD, and it will notify the Trust if its membership in the
NASD is terminated or suspended.
(e) Notwithstanding anything in this Agreement, including the Appendices,
to the contrary, Forum makes no warranty or representation as to the number of
selected dealers or selected agents with which it has entered into agreements in
accordance with Section 11 hereof, as to the availability of any Shares to be
sold through any selected dealer, selected agent or other intermediary or as to
any other matter not specifically set forth herein.
SECTION 6. DUTIES AND REPRESENTATIONS OF THE TRUST
(a) The Trust shall furnish to Forum copies of all financial statements and
other documents to be delivered to shareholders or investors at least two Fund
business days prior to such delivery and shall furnish Forum copies of all other
financial statements, documents and other papers or information which Forum may
reasonably request for use in connection with the distribution of Shares. The
Trust shall make available to Forum the number of copies of the Funds'
Prospectuses as Forum shall reasonably request.
(b) The Trust shall take, from time to time, subject to the approval of the
Board and any required approval of the shareholders of the Trust, all action
necessary to fix the number of authorized Shares (if such number is not limited)
and to register the Shares under the Securities Act, to the end that there will
be available for sale the number of Shares as reasonably may be expected to be
sold pursuant to this Agreement.
(c) The Trust shall execute any and all documents, furnish to Forum any and
all information, otherwise use its best efforts to take all actions that may be
reasonably necessary and cooperate with Forum in taking any action as may be
necessary to register or qualify Shares for sale under the securities laws of
the various states of the United States and other jurisdictions ("States") as
Forum shall designate (subject to approval by the Trust); provided that Forum
shall not be required to register as a broker-dealer or file a consent to
service of process in any State and neither the Trust nor any Fund or Class
thereof shall be required to qualify as a foreign
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corporation, trust or association in any State. Any registration or
qualification may be withheld, terminated or withdrawn by the Trust at any time
in its discretion. Forum shall furnish such information and other material
relating to its affairs and activities as may be required by the Trust in
connection with such registration or qualification.
(d) 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 Organizational
Documents to enter into and perform this Agreement;
(iii) All proceedings required by the Organizational Documents have
been taken to authorize it to enter into and perform its duties under
this Agreement;
(iv) It is an open-end management investment company registered with
the SEC under the 1940 Act;
(v) All Shares, when issued, shall be validly issued, fully paid and
non-assessable;
(vi) 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;
(vii) The Registration statement is currently effective and will remain
effective with respect to all Shares of the Funds and Classes thereof
being offered for sale;
(viii) The Registration Statement and Prospectuses have been or will
be, as the case may be, carefully prepared in conformity with the
requirements of the Securities Act and the rules and regulations
thereunder;
(ix) The Registration Statement and Prospectuses contain or will
contain all statements required to be stated therein in accordance with
the Securities Act and the rules and regulations thereunder; all
statements of fact contained or to be contained in the Registration
Statement or Prospectuses are or will be true and correct at the time
indicated or on the effective date as the case may be; and neither the
Registration Statement nor any Prospectus, when they shall become
effective or be authorized for use, will include an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of Shares;
(x) It will from time to time file such amendment or amendments to the
Registration Statement and Prospectuses as, in the light of
then-current and then-prospective developments, shall, in the opinion
of its counsel, be necessary in order to have the Registration
Statement and Prospectuses at all times contain all material facts
required to
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be stated therein or necessary to make any statements
therein not misleading to a purchaser of Shares ("Required
Amendments");
(xi) It shall not file any amendment to the Registration Statement or
Prospectuses without giving Forum reasonable advance notice thereof;
provided, however, that nothing contained in this Agreement shall in
any way limit the Trust's right to file at any time such amendments to
the Registration Statement or Prospectuses, of whatever character, as
the Trust may deem advisable, such right being in all respects absolute
and unconditional; and
(xii) Any amendment to the Registration Statement or Prospectuses
hereafter filed will, when it becomes effective, contain all statements
required to be stated therein in accordance with the 1940 Act and the
rules and regulations thereunder; all statements of fact contained in
the Registration Statement or Prospectuses will, when be true and
correct at the time indicated or on the effective date as the case may
be; and no such amendment, when it becomes effective, will include an
untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading to a purchaser of the Shares.
SECTION 7. STANDARD OF CARE
(a) Forum shall use its best judgment and reasonable efforts in rendering
services to the Trust under this Agreement but 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 not be liable to the Trust or any of
the Trust's shareholders for any error of judgment or mistake of law, for any
loss arising out of any investment, or for any action or inaction of Forum in
the absence of bad faith, willful misfeasance or negligence in the performance
of Forum's duties or obligations under this Agreement or by reason or Forum's
reckless disregard of its duties and obligations under this Agreement.
(b) Forum Indemnitees (as defined in Section 8) shall not be liable for any
action taken or failure to act in reasonable and good faith reliance upon:
(i) the advice of the Trust or the Trust's outside counsel, or the
advice of counsel to Forum or to Forum Administrative Services, LLC;
provided, however, that a Forum Indemnitee shall not be so exculpated,
and shall not be indemnified and held harmless hereunder, if it relies
with respect to such matter solely on advice rendered by counsel to
Forum if such advice or opinion of such counsel is rendered
negligently;
(ii) any oral instruction which it receives and which it reasonably
believes in good faith was transmitted by the person or persons
authorized by the Board to give such oral instruction (Forum shall have
no duty or obligation to make any inquiry or effort of certification of
such oral instruction);
(iii) any written instruction or certified copy of any resolution of
the Board, and Forum may rely upon the genuineness of any such document
or copy thereof reasonably believed in good faith by Forum to have been
validly executed; or
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(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document reasonably believed in good faith by
Forum to be genuine and to have been signed or presented by the Trust
or other proper party or parties;
and Forum shall not be under any duty or obligation to inquire into the validity
or invalidity or authority or lack thereof of any statement, oral or written
instruction, resolution, signature, request, letter of transmittal, certificate,
opinion of counsel, instrument, report, notice, consent, order, or any other
document or instrument which Forum reasonably believes in good faith to be
genuine.
(c) Forum shall not be responsible or liable for any failure or delay
in performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply. In addition, to the extent
Forum's obligations hereunder are to oversee or monitor the activities of third
parties, Forum shall not be liable for any failure or delay in the performance
of Forum's duties caused, directly or indirectly, by the failure or delay of
such third parties in performing their respective duties or cooperating
reasonably and in a timely manner with Forum.
SECTION 8. INDEMNIFICATION
(a) The Trust will indemnify, defend and hold Forum, its employees,
agents, directors and officers 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") free and harmless from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature and
character (including the cost of investigating or defending such claims,
demands, actions, suits or liabilities and any reasonable counsel fees incurred
in connection therewith) which any Forum Indemnitee may incur, under the
Securities Act, or under common law or otherwise, arising out of or based upon
any alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectuses or arising out of or based upon any alleged
omission to state a material fact required to be stated in any one thereof or
necessary to make the statements in any one thereof not misleading, unless such
statement or omission was made in reliance upon, and in conformity with,
information furnished in writing to the Trust in connection with the preparation
of the Registration Statement or exhibits to the Registration Statement by or on
behalf of Forum ("Forum Claims").
After receipt of Forum's notice of termination under Section 13(e), the
Trust shall indemnify and hold each Forum Indemnitee free and harmless from and
against any Forum Claim; provided, that the term Forum Claim for purposes of
this sentence shall mean any Forum Claim related to the matters for which Forum
has requested amendment to the Registration Statement and for which the Trust
has not filed a Required Amendment, regardless of with respect to such matters
whether any statement in or omission from the Registration Statement
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was made in reliance upon, or in conformity with, information furnished to the
Trust by or on behalf of Forum.
(b) The Trust may assume the defense of any suit brought to enforce any
Forum Claim and may retain counsel of good standing chosen by the Trust and
approved by Forum, which approval shall not be withheld unreasonably. The Trust
shall advise Forum that it will assume the defense of the suit and retain
counsel within ten (10) days of receipt of the notice of the claim. If the Trust
assumes the defense of any such suit and retains counsel, the defendants shall
bear the fees and expenses of any additional counsel that they retain. If the
Trust does not assume the defense of any such suit, or if Forum does not approve
of counsel chosen by the Trust or has been advised that it may have available
defenses or claims that are not available to or conflict with those available to
the Trust, the Trust will reimburse any Forum Indemnitee named as defendant in
such suit for the reasonable fees and expenses of any counsel that person
retains. A Forum Indemnitee shall not settle or confess any claim without the
prior written consent of the Trust, which consent shall not be unreasonably
withheld or delayed.
(c) Forum will indemnify, defend and hold the Trust, its employees, agents,
officers and Trustees (collectively, the "Trust Indemnitees"), free and harmless
from and against any and all claims, demands, actions, suits, judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees and other
expenses of every nature and character (including the cost of investigating or
defending such claims, demands, actions, suits or liabilities and any reasonable
counsel fees incurred in connection therewith), but only to the extent that such
claims, demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses result from, arise out of or
are based upon:
(i) any alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus or any alleged omission of a
material fact required to be stated or necessary to make the statements
therein not misleading, if such statement or omission was made in
reliance upon, and in conformity with, information furnished to the
Trust in writing in connection with the preparation of the Registration
Statement or Prospectus by or on behalf of Forum;
(ii) any act of, or omission by, Forum or its sales representatives
that does not conform to the standard of care set forth in Section 7 of
this Agreement ("Trust Claims");
(iii) any breach of this Agreement by Forum; or
(iv) Forum's violation of law.
(d) Forum may assume the defense of any suit brought to enforce any Trust
Claim and may retain counsel of good standing chosen by Forum and approved by
the Trust, which approval shall not be withheld unreasonably. Forum shall advise
the Trust that it will assume the defense of the suit and retain counsel within
ten (10) days of receipt of the notice of the claim. If Forum assumes the
defense of any such suit and retains counsel, the defendants shall bear the fees
and expenses of any additional counsel that they retain. If Forum does not
assume the defense of any such suit, or if Trust does not approve of counsel
chosen by Forum or has been advised that it may have available defenses or
claims that are not available to or conflict with
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those available to Forum, Forum will reimburse any Trust Indemnitee named as
defendant in such suit for the reasonable fees and expenses of any counsel that
person retains. A Trust Indemnitee shall not settle or confess any claim without
the prior written consent of Forum, which consent shall not be unreasonably
withheld or delayed.
(e) The Trust's and Forum's obligations to provide indemnification under
this Section is conditioned upon the Trust or Forum receiving notice of any
action brought against a Forum Indemnitee or Trust Indemnitee, respectively, by
the person against whom such action is brought within twenty (20) days after the
summons or other first legal process is served. Such notice shall refer to the
person or persons against whom the action is brought. The failure to provide
such notice shall not relieve the party entitled to such notice of any liability
that it may have to any Forum Indemnitee or Trust Indemnitee except to the
extent that the ability of the party entitled to such notice to defend such
action has been materially adversely affected by the failure to provide notice.
(f) The provisions of this Section and the parties' representations and
warranties in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Forum Indemnitee or
Trust Indemnitee and shall survive the sale and redemption of any Shares made
pursuant to subscriptions obtained by Forum. The indemnification provisions of
this Section will inure exclusively to the benefit of each person that may be a
Forum Indemnitee or Trust Indemnitee at any time and their respective successors
and assigns (it being intended that such persons be deemed to be third party
beneficiaries under this Agreement).
(g) Each party agrees promptly to notify the other party of the
commencement of any litigation or proceeding of which it becomes aware arising
out of or in any way connected with the issuance or sale of Shares.
(h) Nothing contained herein shall require the Trust to take any action
contrary to any provision of its Organizational Documents or any applicable
statute or regulation or shall require Forum to take any action contrary to any
provision of its Organizational Documents or any applicable statute or
regulation; provided, however, that neither the Trust nor Forum may amend their
Organizational Documents in any manner that would result in a violation of a
representation or warranty made in this Agreement.
(i) Nothing contained in this section shall be construed to protect Forum
against any liability to the Trust or its security holders to which Forum would
otherwise be subject by reason of its failure to satisfy the standard of care
set forth in Section 7 of this Agreement.
SECTION 9. NOTIFICATION BY THE TRUST
The Trust shall advise Forum immediately: (i) of any request by the SEC
for amendments to the Trust's Registration Statement or Prospectus or for
additional information; (ii) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the Trust's Registration Statement or any
Prospectus or the initiation of any proceedings for that purpose; (iii) of the
happening of any material event which makes untrue any statement made in the
Trust's then current Registration Statement or Prospectus or which requires the
making of a
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change in either thereof in order to make the statements therein not misleading;
and (iv) of all action of the SEC with respect to any amendments to the Trust's
Registration Statement or Prospectus which may from time to time be filed with
the Commission under the 1940 Act or the Securities Act.
SECTION 10. COMPENSATION; EXPENSES
(a) In consideration of Forum's services in connection with the
distribution of Shares of each Fund and Class thereof, Forum shall receive: (i)
any applicable sales charge assessed upon investors in connection with the
purchase of Shares; (ii) from the Trust, any applicable contingent deferred
sales charge ("CDSC") assessed upon investors in connection with the redemption
of Shares; (iii) from the Trust, the [distribution service fees] with respect to
the Shares of those Classes as designated in Appendix A for which a Plan is
effective (the "Distribution Fee"); and (iv) from the Trust, the [shareholder
service fees] with respect to the Shares of those Classes as designated in
Appendix A for which a Service Plan is effective (the "Shareholder Service
Fee"). The Distribution Fee and Shareholder Service Fee shall be accrued daily
by each applicable Fund or Class thereof and shall be paid monthly as promptly
as possible after the last day of each calendar month but in any event on or
before the fifth (5th) Fund business day after month-end, at the rate or in the
amounts set forth in Appendix A [and, as applicable, the Plan(s)]. The Trust
grants and transfers to Forum a general lien and security interest in any and
all securities and other assets of a Fund now or hereafter maintained in an
account at the Fund's custodian on behalf of the Fund to secure any Distribution
Fees and Shareholder Service Fees owed Forum by the Trust under this Agreement.
(b) The Trust shall cause its transfer agent (the "Transfer Agent") to
withhold, from redemption proceeds payable to holders of Shares of the Funds and
the Classes thereof, all CDSCs properly payable by the shareholders in
accordance with the terms of the applicable Prospectus and shall cause the
Transfer Agent to pay such amounts over to Forum as promptly as possible after
the settlement date for each redemption of Shares.
(c) Except as specified in Sections 8 and 10(a), Forum shall be
entitled to no compensation or reimbursement of expenses for the services
provided by Forum pursuant to this Agreement. [Forum may receive compensation
from Ironwood Capital Management, LLC. ("Adviser") for its services hereunder or
for additional services all as may be agreed to between the Adviser and Forum
and disclosed to the Board.]
(d) The Trust shall be responsible and assumes the obligation for
payment of all the expenses of the Funds, including fees and disbursements of
its counsel and auditors, in connection with the preparation and filing of the
Registration Statement and Prospectuses (including but not limited to the
expense of setting in type the Registration Statement and Prospectuses and
printing sufficient quantities for internal compliance, regulatory purposes and
for distribution to current shareholders).
(e) The Trust shall bear the cost and expenses: (i) of the registration
of the Shares for sale under the Securities Act; (ii) of the registration or
qualification of the Shares for sale under the securities laws of the various
States; (iii) if necessary or advisable in connection therewith, of qualifying
the Trust, the Funds or the Classes thereof (but not Forum) as an issuer or as a
broker
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or dealer, in such States as shall be selected by the Trust and Forum pursuant
to Section 6(c) hereof; and (iv) payable to each State for continuing
registration or qualification therein until the Trust decides to discontinue
registration or qualification pursuant to Section 6(c) hereof. Forum shall pay
all expenses relating to Forum's broker-dealer qualification.
SECTION 11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
Subject to approval of the Board, Forum shall have the right to enter
into selected dealer agreements with securities dealers of its choice ("selected
dealers") and selected agent agreements with depository institutions and other
financial intermediaries of its choice ("selected agents") for the sale of
Shares and to fix therein the portion of the sales charge, if any, that may be
allocated to the selected dealers or selected agents. The Trust shall approve
the forms of agreements with selected dealers or selected agents and shall
review the compensation set forth therein. Shares of each Fund or Class thereof
shall be resold by selected dealers or selected agents only at the public
offering price(s) set forth in the Prospectus relating to the Shares. Within the
United States, Forum shall offer and sell Shares of the Funds only to such
selected dealers as are members in good standing of the NASD.
SECTION 12. CONFIDENTIALITY
Forum agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that Forum may:
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies;
(c) release such other information as approved by the Trust, which
approval shall not be withheld where Forum is advised by counsel that it may be
exposed to civil or criminal contempt proceedings for failure to release the
information (provided, however, that Forum shall seek the approval of the Trust
as promptly as possible so as to enable the Trust to pursue such legal or other
action as it may desire to prevent the release of such information) or when so
requested by the Trust; and
(d) Forum shall abide by the Trust's privacy policy pursuant to
Regulation S-P promulgated under Section 504 of the Xxxxx-Xxxxx-Xxxxxx Act.
SECTION 13. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each Fund on
the later of (i) the date first written above. 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.
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(b) This Agreement shall continue in effect with respect to a Fund for
a period of one year from its effectiveness and thereafter shall continue in
effect with respect to a Fund until terminated; provided, that continuance is
specifically approved at least annually (i) by the Board or by a vote of a
majority of the outstanding voting securities of the Fund and (ii) by a vote of
a majority of Trustees of the Trust (x) who are not parties to this Agreement or
interested persons of any such party (other than as Trustees of the Trust) and
(y) with respect to each class of a Fund for which there is an effective Plan,
who do not have any direct or indirect financial interest in any such Plan
applicable to the class or in any agreements related to the Plan, cast in person
at a meeting called for the purpose of voting on such approval.
(c) This Agreement may be terminated at any time with respect to a
Fund, without the payment of any penalty, (i) by the Board or by a vote of a
majority of the outstanding voting securities of the Fund or, with respect to
each class of a Fund for which there is an effective Plan, a majority of
Trustees of the Trust who do not have any direct or indirect financial interest
in any such Plan or in any agreements related to the Plan, on sixty (60) days'
written notice to Forum or (ii) by Forum on sixty (60) days' written notice to
the Trust.
(d) This Agreement shall automatically terminate upon its assignment
and upon the termination of Forum's membership in the NASD.
(e) If the Trust shall not file a Required Amendment within fifteen
days following receipt of a written request from Forum to do so, Forum may, at
its option, terminate this Agreement immediately.
(f) The obligations of Sections 8, 9, 12, 13(f), 16 17(a) and 17(j);
shall survive any termination of this Agreement.
SECTION 14. NOTICES
Any notice required or permitted to be given hereunder by either party
to the other shall be deemed sufficiently given if personally delivered or sent
by telegram, facsimile or registered, certified or overnight mail, postage
prepaid, addressed by the party giving such notice to the other party at the
last address furnished by the other party to the party giving such notice, and
unless and until changed pursuant to the foregoing provisions hereof each such
notice shall be addressed to the Trust or Forum, as the case may be, at their
respective principal places of business.
SECTION 15. ACTIVITIES OF FORUM
Except to the extent necessary to perform Forum's obligations
hereunder, nothing herein shall be deemed to limit or restrict Forum's right, or
the right of any of Forum's employees, agents, officers or directors who may
also be a Trustee, officer or employee of the Trust, or affiliated persons of
the Trust to engage in any other business or to devote time and attention to the
management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
trust, firm, individual or association.
SECTION 16. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
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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.
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) 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 Trust and no presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, set forth above, or at such
other address as a party may have designated in writing, shall be deemed to have
been properly given.
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
(j) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund are separate and distinct
from the assets and liabilities of each
-14-
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) Each of the undersigned 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.
(l) The terms "vote of a majority of the outstanding voting
securities," "interested person," "affiliated person" and "assignment" shall
have the meanings ascribed thereto in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
ICM SERIES TRUST
By: /S/ XXXXXX X. XXXXXXXX
----------------------------------
Xxxxxx X. Xxxxxxxx
President
FORUM FUND SERVICES, LLC
By: /S/ XXXX X. XXXXXX
--------------------------------
Xxxx X. Xxxxxx
President
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ICM SERIES TRUST
DISTRIBUTION AGREEMENT
APPENDIX A -- DATED JANUARY 1, 2002
FUNDS OF THE TRUST:
o ICM/Isabelle Small-Cap Value Fund
CLASSES OF THE TRUST:
o Investment Shares
o Institutional Shares
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