Exhibit (e)(2)
FORUM FUNDS
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 24/th/ day of November 2003, and amended and
restated as of October 1, 2004 (the "Effective Date"), by and between Forum
Funds, a Delaware statutory trust, with its principal office and place of
business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 (the "Trust"), and Forum
Fund Services, LLC, a Delaware limited liability company with its principal
office and place of business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000
("Distributor").
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, the Distributor 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 may in
the future offer shares of various classes of each Fund as listed in Appendix A
hereto (each such class together with all other classes subsequently established
by the Trust in a Fund being herein referred to as a "Class," and collectively
as the "Classes");
WHEREAS, the Trust desires that the Distributor offer, as principal
underwriter, the Shares of each Fund and Class thereof to the public and the
Distributor 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;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and the Distributor do hereby agree as
follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust hereby appoints the Distributor, and the Distributor 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 the Distributor
copies of (i) the Trust's Trust Instrument and Bylaws (collectively, as amended
from time to time, "Organic 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 (iv) all procedures adopted by the Trust with respect to
the Funds (e.g., repurchase agreement procedures), and shall promptly furnish
the Distributor with all amendments of or supplements to the foregoing. The
Trust shall deliver to Forum a certified copy of the resolution of the Board of
Trustees of the Trust (the "Board") appointing Forum and authorizing the
execution and delivery of this Agreement.
SECTION 2. EXCLUSIVE NATURE OF DUTIES
The Distributor shall be the exclusive representative of the Trust to act
distributor of the Funds except that the rights given under this Agreement to
the Distributor 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) The Distributor 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 the Distributor
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, the Distributor 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. The Distributor will promptly
forward all orders and subscriptions to the Trust. The price that the
Distributor 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 the Distributor are to be resold by the Distributor 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 the Distributor 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 the Distributor hereunder.
(b) The public offering price of the Shares of a Fund, i.e., the price per
Share at which the Distributor 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 the
Distributor, when acting as principal, is to purchase
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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 the Distributor
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 the
Distributor 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 Trust's Board of Trustees (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 the Distributor 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 the
Distributor by the Trust, shall be promptly advised by the Distributor of all
purchase orders for Shares received by the Distributor and all subscriptions for
Shares obtained by the Distributor 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 the Distributor. The Distributor 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
Organic 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(b) 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 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.
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(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 the
Distributor in accordance with the Distributor'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 THE DISTRIBUTOR
(a) The Distributor shall use reasonable efforts to sell Shares of the Funds
upon the terms and conditions contained herein and in the then current
Prospectus. The Distributor 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 the Distributor to the Trust hereunder are not to be
deemed exclusive, and nothing herein contained shall prevent the Distributor
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, the Distributor 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 the
Distributor, 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) The Distributor 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 NASD.
(d) The Distributor 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 and it is duly qualified to
carry on its business in the State of Maine;
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(ii) It is empowered under applicable laws and by its Operating Agreement to
enter into and perform this Agreement;
(iii) All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement;
(iv) It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement;
(v) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the Distributor, enforceable against the
Distributor 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;
(vi) 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; and
(vii) The performance by the Distributor of its obligations hereunder does
not and will not contravene any provision of its Operating Agreement.
(e) Notwithstanding anything in this Agreement, including the Appendices, to
the contrary, the Distributor 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 the Distributor 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 the
Distributor copies of all other financial statements, documents and other papers
or information which the Distributor may reasonably request for use in
connection with the distribution of Shares. The Trust shall make available to
the Distributor the number of copies of the Funds' Prospectuses as the
Distributor 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.
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(c) The Trust shall execute any and all documents, furnish to the Distributor
any and all information, otherwise use its best efforts to take all actions
that may be reasonably necessary and cooperate with the Distributor 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 the Distributor shall designate (subject to
approval by the Trust); provided that the Distributor 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 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. The Distributor 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 the Distributor that:
(i) It is a business trust duly organized and existing and in good standing
under the laws of the State of Delaware;
(ii) It is empowered under applicable laws and by its Organic Documents to
enter into and perform this Agreement;
(iii) All proceedings required by the Organic 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 performance by the Distributor of its obligations hereunder does
not and will not contravene any provision of its Articles of Incorporation.
(viii) 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;
(ix) 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;
(x) The Registration Statement and Prospectuses contain or will contain all
statements required to be stated therein in accordance with the Securities
Act and the
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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;
(xi) 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 be stated therein or necessary
to make any statements therein not misleading to a purchaser of Shares
("Required Amendments");
(xii) It shall not file any amendment to the Registration Statement or
Prospectuses without giving the Distributor 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
(xiii) 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) The Distributor 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 the Distributor in writing. The Distributor 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 the Distributor in the absence of bad faith, willful
misfeasance or gross negligence in the performance of the Distributor's duties
or obligations under this Agreement or by reason or the Distributor's reckless
disregard of its duties and obligations under this Agreement
(b) The Distributor shall not be liable for any action taken or failure to
act in good faith reliance upon:
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(i) the advice of the Trust or of counsel, who may be counsel to the Trust or
counsel to the Distributor;
(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 (the Distributor 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 the Distributor may rely upon the genuineness of any such document
or copy thereof reasonably believed in good faith by the Distributor to have
been validly executed; or
(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 the Distributor to be
genuine and to have been signed or presented by the Trust or other proper
party or parties;
and the Distributor 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 the Distributor reasonably believes in
good faith to be genuine.
(c) The Distributor 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 the
Distributor's obligations hereunder are to oversee or monitor the activities of
third parties, the Distributor shall not be liable for any failure or delay in
the performance of the Distributor'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 the Distributor.
SECTION 8. INDEMNIFICATION
(a) The Trust will indemnify, defend and hold the Distributor, its employees,
agents, directors and officers and any person who controls the Distributor
within the meaning of section 15 of the Securities Act or section 20 of the 1934
Act ("Distributor 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 Distributor Indemnitee may incur, under the
Securities Act, or under common law or otherwise,
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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:
(i) the bad faith, willful misfeasance or gross negligence of the Trust in
connection with the subject matter of this Agreement;
(ii) any material breach by the Trust of its representations and warranties
under this Agreement; or
(iii) any alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus 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 orally
or in writing to the Trust in connection with the preparation of the
Registration Statement, exhibits to the Registration Statement or the
Prospectus by or on behalf of Forum (collectively, "Distributor
Claims").
After receipt of the Distributor's notice of termination under Section 13(e),
the Trust shall indemnify and hold each Distributor Indemnitee free and harmless
from and against any Distributor Claim; provided, that the term Distributor
Claim for purposes of this sentence shall mean any Distributor Claim related to
the matters for which the Distributor 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 was made in reliance upon, or in
conformity with, information furnished to the Trust by or on behalf of the
Distributor.
(b) The Trust may assume the defense of any suit brought to enforce any
Distributor Claim and may retain counsel of good standing chosen by the Trust
and approved by the Distributor, which approval shall not be withheld
unreasonably. The Trust shall advise the Distributor 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 Distributor 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 Distributor Indemnitee named as defendant in such suit for the
reasonable fees and expenses of any counsel that person retains. A Distributor
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.
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(c) The Distributor will indemnify, defend and hold the Trust and its several
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 the Distributor; or
(ii) any act of, or omission by, Distributor or its sales representatives
that does not conform to the standard of care set forth in Section 7 of this
Agreement ("Trust Claims").
(d) The Distributor may assume the defense of any suit brought to enforce any
Trust Claim and may retain counsel of good standing chosen by the Distributor
and approved by the Trust, which approval shall not be withheld unreasonably.
The Distributor 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 the Distributor 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 Distributor does not assume the defense of
any such suit, or if Trust does not approve of counsel chosen by the
Distributor or has been advised that it may have available defenses or claims
that are not available to or conflict with those available to the
Distributor, the Distributor 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 the Distributor, which consent shall not
be unreasonably withheld or delayed.
(e) The Trust's and the Distributor's obligations to provide indemnification
under this Section is conditioned upon the Trust or the Distributor receiving
notice of any action brought against a Distributor 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
Distributor 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.
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(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 Distributor
Indemnitee or Trust Indemnitee and shall survive the sale and redemption of any
Shares made pursuant to subscriptions obtained by the Distributor. The
indemnification provisions of this Section will inure exclusively to the benefit
of each person that may be a Distributor 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 Organic Documents or any applicable statute or
regulation or shall require the Distributor to take any action contrary to any
provision of its Operating Agreement or any applicable statute or regulation;
provided, however, that neither the Trust nor the Distributor may amend their
Organic Documents or Operating Agreement and Bylaws, respectively, 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 the
Distributor against any liability to the Trust or its security holders to which
the Distributor 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 the Distributor 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 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 the Distributor's services in connection with the
distribution of Shares of each Fund and Class thereof, the Distributor 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
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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 the Distributor 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 the Distributor 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 the Distributor as promptly as
possible after the settlement date for each redemption of Shares.
(c) Except as specified in Sections 8 and 10(a), the Distributor shall be
entitled to no compensation or reimbursement of expenses for the services
provided by the Distributor pursuant to this Agreement.
(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 the Distributor) as an
issuer or as a broker or dealer, in such States as shall be selected by the
Trust and the Distributor 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. The Distributor shall pay all expenses relating to the Distributor's
broker-dealer qualification.
SECTION 11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
The Distributor 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
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selected dealers or selected agents; provided, that 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, the Distributor 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
The Distributor 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 the
Distributor may:
(i) prepare or assist in the preparation of periodic reports to shareholders
and regulatory bodies such as the SEC;
(ii) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(iii) release such other information as approved in writing by the Trust,
which approval shall not be unreasonably withheld;
provided, however, that the Distributor may release any information regarding
the Trust without the consent of the Trust if the Distributor reasonably
believes that it may be exposed to civil or criminal legal proceedings for
failure to comply, when requested to release any information by duly constituted
authorities or when so requested by the Trust.
SECTION 13. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to a Fund on the later
of (i) the date first above written or (ii) the date on which the Trust's
Registration Statement relating to Shares of a Fund becomes effective. Upon
effectiveness of this Agreement, it shall supersede all previous agreements
between the parties hereto covering the subject matter hereof insofar as such
Agreement may have been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund 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 (I) who are not parties to this Agreement or
interested persons of any such party (other than as Trustees of the Trust) and
(II) 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.
- 13 -
(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 60 days' written notice to the
Distributor or (ii) by the Distributor on 60 days' written notice to the Trust.
(d) This Agreement shall automatically terminate upon its assignment (as such
term is defined under the 0000 Xxx) and upon the termination of the
Distributor'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 the Distributor to do so, the
Distributor may, at its option, terminate this Agreement immediately.
(f) The obligations of Sections 5(d), 6(d), 8, 9 and 10 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 the Distributor, as the case may be, at their
respective principal places of business.
SECTION 15. ACTIVITIES OF THE DISTRIBUTOR
Except to the extent necessary to perform the Distributor's obligations
hereunder, nothing herein shall be deemed to limit or restrict the Distributor's
right, or the right of any of the Distributor'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
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 the Distributor agrees that, in
- 14 -
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 the Distributor'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.
(g) Section headings in this Agreement are included for convenience only and
are not to be used to construe or interpret this Agreement.
(h) 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 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.
(i) No affiliated person, employee, agent, officer or director of the
Distributor shall be liable at law or in equity for the Distributor's
obligations under this Agreement.
(j) 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.
- 15 -
(k) 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.
FORUM FUNDS
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxxx
President
FORUM FUND SERVICES, LLC
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx
President
NOTE: THIS AGREEMENT NOT TO BE USED
FOR CDSC FUNDING (B SHARE) FINANCING
- 16 -
FORUM FUNDS
DISTRIBUTION AGREEMENT
APPENDIX A
FUNDS AND CLASSES OF THE TRUST
DECEMBER 9, 2004
FUND NAMES CLASS NAMES
---------- -------------------------------------
Xxxxx Xxxxxxxx Small-Cap Growth Fund
Austin Global Equity Fund
Xxxxxx Focus Fund Investor, A and C Shares
Xxxxx Advisory Growth Equity Fund Institutional Shares
Xxxxx Advisory Intermediate Income Institutional and A Shares
Fund
Xxxxx Advisory International Fund Institutional Shares
Xxxxx Advisory Maryland Bond Fund Institutional Shares
Xxxxx Advisory Real Estate Fund Institutional
Xxxxx Advisory Small-Cap Growth Fund Institutional and A Shares
Xxxxx Advisory Small-Cap Value Fund
Xxxxx Advisory Value Equity Fund Institutional Shares
XX Xxxx Premier Growth Fund
Fountainhead Special Value Fund
Investors Bond Fund
Xxxxxxxxxxxx Growth Fund
Payson Total Return Fund
Payson Value Fund
Polaris Global Value Fund
Shaker Fund Intermediary, A, B, and C Shares
TaxSaver Bond Fund
Xxxxxxx Xxxxx Growth Fund
AMENDMENT TO
FORUM FUNDS DISTRIBUTION AGREEMENT
IN WITNESS WHEREOF, the parties hereto agree as follows:
1. Forum Funds (the "Trust") and Forum Fund Services, LLC ("FFS"), have
entered into a Distribution Agreement (the "Agreement") dated November 24, 2003,
and amended and restated as of October 1, 2004, pursuant to which FFS has agreed
to provide distribution services to the Trust. Effective March 1, 2005, FFS
amended its name from "Forum Fund Services, LLC" to "Foreside Fund Services,
LLC." The Agreement between FFS and the Trust is hereby amended to reflect FFS'
name change effective March 1, 2005.
2. Appendix A to the Distribution Agreement between the Trust and FFS is
hereby amended to add additional series as of August 8, 2005.
FORUM FUNDS
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Print Name: Xxxxx X. Xxxxxxx
Title: President
FORESIDE FUND SERVICES, LLC
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Print Name: Xxxx X. Xxxxxx
Title: President
FORUM FUNDS
DISTRIBUTION AGREEMENT
APPENDIX A
FUNDS AND CLASSES OF THE TRUST
AUGUST 8, 2005
FUND NAMES CLASS NAMES
---------- -------------------------------------
Absolute Strategies Fund Institutional Shares, A and C Shares
Xxxxx Xxxxxxxx Small-Cap Growth Fund
Austin Global Equity Fund
Xxxxxx Focus Fund Investor, A and C Shares
Xxxxx Advisory Growth Equity Fund Institutional Shares
Xxxxx Advisory Intermediate Income
Fund Institutional and A Shares
Xxxxx Advisory International Fund Institutional Shares
Xxxxx Advisory Maryland Bond Fund Institutional Shares
Xxxxx Advisory Real Estate Fund Institutional
Xxxxx Advisory Small-Cap Growth Fund Institutional and A Shares
Xxxxx Advisory Small-Cap Value Fund
Xxxxx Advisory Value Equity Fund Institutional Shares
XX Xxxx Premier Growth Fund
Dover Responsibility Fund Institutional Shares, A and C Shares
Fountainhead Special Value Fund
Golden Large Core Value Fund Institutional and Investor Shares
Golden Small Core Value Fund Institutional and Investor Shares
Investors Bond Fund
Jordan Opportunity Fund
Xxxxxxxxxxxx Growth Fund
Merk Hard Currency Fund Institutional and Investor Shares
Payson Total Return Fund
Payson Value Fund
Polaris Global Value Fund
Shaker Fund Intermediary, A, B, and C Shares
Steepleview Fund
TaxSaver Bond Fund
Xxxxxxx Xxxxx Growth Fund
