As filed with the Securities and Exchange Commission on July 23, 1999
Securities Act File No. 333-76507
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-14
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 /X/
Pre-Effective Amendment No. / /
Post-Effective Amendment No. /1/
FORUM FUNDS
(Exact Name of Registrant as Specified in Charter)
Two Portland Square, Portland, Maine 04101
(Address of Principal Executive Offices) (Zip Code)
(207) 879-1900
(Registrant's Area Code and Telephone Number)
Leslie K. Klenk, Esq.
Forum Fund Services, LLC
Two Portland Square
Portland, ME 04101
Copies of Communications to:
Anthony C.J. Nuland, Esq.
Seward & Kissel LLP
1200 G Street, N.W.
Washington, D.C. 20005
Approximate Date of Proposed Public Offering:
June 29, 1999.
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It is proposed that this filing will become effective on July 23, 1999 pursuant
to Rule 485(b) under the Securities Act of 1933.
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Title of Securities Being Registered: BIA Small-Cap Growth Fund and BIA Growth
Equity Fund. No filing fee is due under the Securities Act of 1933, as amended,
in reliance on section 24(f).
<PAGE>
Part A
The Proxy Statement/Prospectus for Forum Funds (the "Registrant") filed as part
A to Pre-Effective Amendment No. 1 to the Registrant's Registration Statement on
Form N-14 (File No. 333-76507) is incorporated herein by reference. This Proxy
Statement/Prospectus relates to the proposed transfer of substantially all of
the assets of the BIA Emerging Growth Fund Limited Partnership to BIA Small-Cap
Growth Fund and BIA Growth Equity Fund Limited Partnership to BIA Growth Equity
Fund. BIA Small-Cap Growth Fund and BIA Growth Equity Fund are two new series of
the Registrant, Forum Funds.
<PAGE>
Part B
The Statement of Additional Information (the "SAI") for Forum Funds (the
"Registrant") filed as Part B to Pre-Effective Amendment No. 1 to the
Registrant's Registration Statement on Form, N-14 (File No. 333-76507) is
incorporated herein by reference. This SAI supplements the Proxy
Statement/Prospectus relating to the proposed transfer of substantially all of
the assets of the BIA Emerging Growth Fund Limited Partnership to BIA Small-Cap
Growth Fund and BIA Growth Equity Fund Limited Partnership to BIA Growth Equity
Fund. BIA Small-Cap Growth Fund and BIA Growth Equity Fund are two new series of
the Registrant, Forum Funds.
<PAGE>
PART C
OTHER INFORMATION
ITEM 15 - Indemnification.
The Trust Instrument
In accordance with Section 3803 of the Delaware Business Trust Act, SECTION 10.2
of the Registrant's Trust Instrument provides as follows:
"Section 10.02 Indemnification.
(a) Subject to the exceptions and limitations contained in Subsection 10.02(b):
(i) every person who is, or has been, a Trustee or officer of
the Trust (hereinafter referred to as a "Covered Person") shall be indemnified
by the Trust to the fullest extent permitted by law against liability and
against all expenses reasonably incurred or paid by him in connection with any
claim, action, suit or proceeding in which he becomes involved as a party or
otherwise by virtue of his being or having been a Trustee or officer and against
amounts paid or incurred by him in the settlement thereof;
(ii) the words "claim," "action," "suit," or "proceeding"
shall apply to all claims, actions, suits or proceedings (civil, criminal or
other, including appeals), actual or threatened while in office or thereafter,
and the words "liability" and "expenses" shall include, without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines, penalties
and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before
which the proceeding was brought (A) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office or (B)
not to have acted in good faith in the reasonable belief that his action was in
the best interest of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Trustee or officer did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office, (A) by the court or other body approving
the settlement; (B) by at least a majority of those Trustees who are neither
Interested Persons of the Trust nor are parties to the matter based upon a
review of readily available facts (as opposed to a full trial-type inquiry); or
(C) by written opinion of independent legal counsel based upon a review of
readily available facts (as opposed to a full trial-type inquiry);
provided, however, that any Shareholder may, by appropriate legal proceedings,
challenge any such determination by the Trustees or by independent counsel.
(c) The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not be exclusive of
or affect any other rights to which any Covered Person may now or hereafter be
entitled, shall continue as to a person who has ceased to be a Covered Person
and shall inure to the benefit of the heirs, executors and administrators of
such a person. Nothing contained herein shall affect any rights to
indemnification to which Trust personnel, other than Covered Persons, and other
persons may be entitled by contract or otherwise under law.
(d) Expenses in connection with the preparation and presentation of a defense to
any claim, action, suit or proceeding of the character described in Subsection
10.02(a) of this Section 10.02 may be paid by the Trust or Series from time to
time prior to final disposition thereof upon receipt of an undertaking by or on
behalf of such Covered Person that such amount will be paid over by him to the
Trust or Series if it is ultimately determined that he is not entitled to
indemnification under this Section 10.02; provided, however, that either (i)
such Covered Person shall have provided appropriate security for such
undertaking, (ii) the Trust is insured against losses arising out of any such
advance payments or (iii) either a majority of the Trustees who are neither
Interested Persons of the Trust nor parties to the matter, or independent legal
counsel in a written opinion, shall have determined, based upon a review of
readily available facts (as opposed to a trial-type inquiry or full
investigation), that there is reason to believe that such Covered Person will be
found entitled to indemnification under Section 10.02.
<PAGE>
The Investment Advisory Agreements
Section 4 of the Trust's Investment Advisory Agreements with Austin Investment
Management, Inc. (Austin Global Equity Fund), Forum Investment Advisors, LLC
(Investors Bond Fund, Investors Growth Fund, Investors High Grade Bond Fund,
Maine Municipal Bond Fund, New Hampshire Bond Fund, and TaxSaver Bond Fund) and
H.M. Payson & Company (Payson Balanced Fund and Payson Value Fund) includes
language similar to the following:
"SECTION 4. STANDARD OF CARE
The Trust shall expect of the Adviser, and the Adviser will give the Trust the
benefit of, the Adviser's best judgment and efforts in rendering its services to
the Trust, and as an inducement to the Adviser's undertaking these services the
Adviser shall not be liable hereunder for any mistake of judgment or in any
event whatsoever, except for lack of good faith, breach of fiduciary duty,
willful misfeasance, bad faith or gross negligence in the performance of the
Adviser's duties hereunder, or by reason of the Adviser's reckless disregard of
its obligations and duties hereunder and except as otherwise provided by law."
Section 5 of the Trust's Investment Advisory Agreements with Forum Investment
Advisors, LLC (Small Company Opportunities Fund) and Polaris Capital Management,
Inc. and Section 5 of the Form of Investment Advisory Agreement between the
Trust and Brown Investment Advisory & Trust Company (BIA Small-Cap Growth Fund
and BIA Growth Equity Fund) include similar language to the following:
"SECTION 5. STANDARD OF CARE.
(a) The Trust shall expect of the Adviser, and the Adviser will give the
Trust the benefit of, the Adviser's best judgment and efforts in
rendering its services to the Trust. The Adviser shall not be liable
hereunder for error of judgment or mistake of law or in any event
whatsoever, except for lack of good faith, provided that nothing
herein shall be deemed to protect, or purport to protect, the Adviser
against any liability to the Trust or to the Trust's security holders
to which the Adviser would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of the
Adviser's duties hereunder, or by reason of the Adviser's reckless
disregard of its obligations and duties hereunder.
(b) The Adviser 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 (other
than those related to the Adviser's employees), fire, mechanical
breakdowns, flood or catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power
supply."
The Distribution Agreement
Section 8 of the Trust's Distribution Agreement with Forum Financial Services,
Inc. and Forum Fund Services LLC provides:
"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, 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 the Distributor ("Distributor Claims").
<PAGE>
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.
(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.
<PAGE>
(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.
(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 Articles of Incorporation or Bylaws or any applicable statute
or regulation; provided, however, that neither the Trust nor the Distributor may
amend their Organic Documents or Articles of Incorporation 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."
ITEM 16 - Exhibits.
All references to a post effective amendment are to Registrant's Registration
Statement on Form N-1A, file numbers 2-67052 and 811-3023.
(1) Copy of Registrant's Trust Instrument dated August 29, 1995 is
incorporated herein by reference. The Trust Instrument, Exhibit (a) to
post effective amendment 34, was filed via EDGAR on May 9, 1996
(accession number 0000912057-96-008780).
(2) Copy of Registrant's By-Laws is incorporated herein by reference. The
By-Laws, Exhibit (b) to post effective amendment 43 were filed via
EDGAR on July 31, 1997 (accession number 0000912057-97-025707).
(3) None.
(4) Form of Agreement and Plan of Reorganization is incorporated herein by
reference. The Form of Agreement and Plan of Reorganization was filed
as Attachment B to Part A to pre-effective amendment 1 on Form N-14 via
EDGAR on May 17, 1999 (accession number 0001004402-99-000279).
<PAGE>
(5)(a) Sections 2.04 and 2.06 of Registrant's Trust Instrument provide as
follows:
"SECTION 2.04 TRANSFER OF SHARES.
Except as otherwise provided by the Trustees, Shares shall be transferable on
the records of the Trust only by the record holder thereof or by his agent
thereunto duly authorized in writing, upon delivery to the Trustees or the
Trust's transfer agent of a duly executed instrument of transfer and such
evidence of the genuineness of such execution and authorization and of such
other matters as may be required by the Trustees. Upon such delivery the
transfer shall be recorded on the register of the Trust. Until such record is
made, the Shareholder of record shall be deemed to be the holder of such Shares
for all purposes hereunder and neither the Trustees nor the Trust, nor any
transfer agent or registrar nor any officer, employee or agent of the Trust
shall be affected by any notice of the proposed transfer."
"SECTION 2.06 ESTABLISHMENT OF SERIES.
The Trust created hereby shall consist of one or more Series and separate and
distinct records shall be maintained by the Trust for each Series and the assets
associated with any such Series shall be held and accounted for separately from
the assets of the Trust or any other Series. The Trustees shall have full power
and authority, in their sole discretion, and without obtaining any prior
authorization or vote of the Shareholders of any Series of the Trust, to
establish and designate and to change in any manner any such Series of Shares or
any classes of initial or additional Series and to fix such preferences, voting
powers, rights and privileges of such Series or classes thereof as the Trustees
may from time to time determine, to divide or combine the Shares or any Series
or classes thereof into a greater or lesser number, to classify or reclassify
any issued Shares or any Series or classes thereof into one or more Series or
classes of Shares, and to take such other action with respect to the Shares as
the Trustees may deem desirable. The establishment and designation of any Series
shall be effective upon the adoption of a resolution by a majority of the
Trustees setting forth such establishment and designation and the relative
rights and preferences of the Shares of such Series. A Series may issue any
number of Shares and need not issue shares. At any time that there are no Shares
outstanding of any particular Series previously established and designated, the
Trustees may by a majority vote abolish that Series and the establishment and
designation thereof.
All references to Shares in this Trust Instrument shall be deemed to be Shares
of any or all Series, or classes thereof, as the context may require. All
provisions herein relating to the Trust shall apply equally to each Series of
the Trust, and each class thereof, except as the context otherwise requires.
Each Share of a Series of the Trust shall represent an equal beneficial interest
in the net assets of such Series. Each holder of Shares of a Series shall be
entitled to receive his pro rata share of all distributions made with respect to
such Series. Upon redemption of his Shares, such Shareholder shall be paid
solely out of the funds and property of such Series of the Trust."
(6) Investment Advisory Agreements
(a) Investment Advisory Agreement between Registrant and Austin Investment
Management, Inc. regarding Austin Global Equity Fund is incorporated herein
by reference. The Investment Advisory Agreement, Exhibit (d)(3) to post
effective amendment 62, was filed via EDGAR on May 26, 1998 (accession
number 0001004402-98-000307).
(b) Form of Investment Advisory Agreement between Registrant and Brown
Investment Advisory & Trust Company regarding BIA Small-Cap Growth Fund and
BIA Growth Equity Fund is incorporated herein by reference. The Form of
Investment Advisory Agreement, Exhibit (d)(11) to post effective amendment
70, was filed via EDGAR on March 18, 1999 (accession number
0001004402-99-000185).
<PAGE>
(c) Investment Advisory Agreement between Registrant and Forum Investment
Advisors, LLC regarding Investors Bond Fund, Investors High Grade Bond
Fund, TaxSaver Bond Fund, Maine Municipal Bond Fund, New Hampshire Bond
Fund, and Investors Growth Fund is incorporated herein by reference. The
Investment Advisory Agreement, Exhibit (d)(5) to post effective amendment
56, was filed via EDGAR on December 31, 1997 (accession number
0001004402-97-000281).
(d) Investment Advisory Agreement between Registrant and H.M. Payson & Co.
regarding Investors Equity Fund is incorporated herein by reference. The
Investment Advisory Agreement, Exhibit (d)(8) to post effective amendment
65, was filed via EDGAR on September 30, 1998 (accession number
0001004402-98-000530).
(e) Investment Advisory Agreement between Registrant and H.M. Payson & Co.
relating to the Payson Value Fund and the Payson Balanced Fund is
incorporated herein by reference. The Investment Advisory Agreement,
Exhibit (d)(1) to post effective amendment 62, was filed via EDGAR on May
26, 1998 (accession number 0001004402-98-000307).
(f) Investment Subadvisory Agreement between H.M. Payson & Co. and Peoples
Heritage Bank regarding Investors Equity Fund is incorporated herein by
reference. The Investment Subadvisory Agreement, Exhibit (d)(9) to post
effective amendment 64, was filed via EDGAR on July 31, 1998 (accession
number 0001004402-98-000421).
(g) Investment Advisory Agreement between Registrant and Polaris Capital
Management, Inc. is incorporated by reference to Exhibit (d)(7) to post
effective amendment 63 to Registrant's Form N-1A, filed via EDGAR on June
8, 1998 (accession number 0001004402-98-000339).
(7) Distribution Agreements and Form of Selected Dealer Agreement
(a) Distribution Agreement between Registrant and Forum Financial Services,
Inc. regarding Austin Global Equity Fund, Investors Bond Fund, Investors
Growth Fund, Investors High Grade Bond Fund, Maine Municipal Bond Fund, New
Hampshire Bond Fund, Payson Balanced Fund, Payson Value Fund, Polaris
Global Value Fund, TaxSaver Bond Fund is incorporated herein by reference.
The Distribution Agreement, Exhibit (e)(3) to post effective amendment 62
to Registrant's Form N-1A, was filed via EDGAR on May 26, 1998 (accession
number 0001004402-98-000307).
(b) Distribution Agreement between Registrant and Forum Fund Services, LLC
regarding BIA Small-Cap Growth Fund, BIA Equity Growth Fund, Equity Index
Fund, Investors Equity Fund and the Investor, Institutional, and
Institutional Share Classes of Daily Assets Treasury Obligations Fund,
Daily Assets Government Fund, Daily Assets Government Obligations Fund,
Daily Assets Cash Fund, and Daily Asset Municipal Fund. Incorporated by
reference to Exhibit (e)(4) to post effective amendment 72 to Registrant's
Form N-1A, filed via EDGAR on June 16, 1999 (accession number
0001004402-99-000308).
(c) Form of Distribution Agreement between Registrant and Forum Fund Services,
LLC regarding Austin Global Equity Fund, Investors Bond Fund, Investors
Growth Fund, Investors High Grade Bond Fund, Maine Municipal Bond Fund, New
Hampshire Bond Fund, Payson Balanced Fund, Payson Value Fund, Polaris
Global Value Fund, TaxSaver Bond Fund is incorporated herein by reference.
The Form of Distribution Agreement, Exhibit (e)(4) to post effective
amendment 68 was filed via EDGAR on November 30, 1998 (accession number
0001004402-98-000620).
<PAGE>
(d) Form of Selected Dealer Agreement between Forum Financial Services, Inc.
and securities brokers is incorporated herein by reference. The Form of
Selected Dealer Agreement, Exhibit (e)(1) to post effective amendment 62,
was filed via EDGAR on May 26, 1998 (accession number
0001004402-98-000307).
(e) Form of Bank Affiliated Selected Dealer Agreement between Forum Financial
Services, Inc. and bank affiliates is incorporated herein by reference. The
Form of Bank Affiliated Selected Dealer Agreement, Exhibit (e)(2) to post
effective amendment 62, was filed via EDGAR on May 26, 1998 (accession
number 0001004402-98-000307).
<PAGE>
(8) None.
(9) Custodian Contracts
(a) Custodian Agreement between Registrant and Forum Trust, LLC regarding
Austin Global Equity Fund, BIA Small-Cap Growth Fund, BIA Growth Equity
Fund, Equity Index Fund, Investors Bond Fund, Investors Equity Fund,
Investors Growth Fund, Investors High Grade Bond Fund, Maine Municipal Bond
Fund, New Hampshire Bond Fund, Payson Balanced Fund, Payson Value Fund,
Polaris Global Value Fund and Investor Shares, Institutional Shares and
Institutional Service Shares of Daily Assets Government Fund, Daily Assets
Treasury Obligations Fund, Daily Assets Government Obligations Fund, Daily
Assets Cash Fund and Daily Assets Municipal Fund is incorporated herein by
reference. The Form of Custodian Agreement, Exhibit (g)(2) to post
effective amendment 72, was filed via EDGAR on June 16, 1999 (accession
number 0001004402-99-000308).
(b) Master Custodian Agreement between Forum Trust, LLC and Bankers Trust
Company regarding Austin Global Equity Fund, BIA Small-Cap Growth Fund, BIA
Growth Equity Fund, Equity Index Fund, Investors Bond Fund, Investors
Equity Fund, Investors Growth Fund, Investors High Grade Bond Fund, Maine
Municipal Bond Fund, New Hampshire Bond Fund, Payson Balanced Fund, Payson
Value Fund, Polaris Global Value Fund and Investor Shares, Institutional
Shares and Institutional Service Shares of Daily Assets Treasury
Obligations Fund, Daily Assets Government Fund, Daily Assets Government
Obligations Fund, Daily Assets Cash Fund and Daily Assets Municipal Fund is
incorporated herein by reference. The Form of Master Custodian Agreement,
Exhibit (g)(3) to post effective amendment 72, was filed via EDGAR on June
16, 1999 (accession number 0001004402-99-000308).
(10) Rule 12b-1 Plan adopted by the Registrant regarding the Investor Share
Classes of Daily Assets Treasury Obligations Fund, Daily Assets Treasury
Obligations Fund, Daily Assets Government Fund, Daily Assets Government
Obligations Fund, Daily Assets Cash Fund and Daily Assets Municipal Fund
filed as Exhibit (10) to Form N-14, was filed via EDGAR on April 19, 1999
(accession number 0001004402-99-000221).
(11) Opinion and consent of Seward & Kissel LLP, Trust counsel, regarding
legality of securities is incorporated herein by reference. Consent of
Seward & Kissel LLP, Exhibit (11) to pre-effective amendment 1 on Form
N-14, was filed via EDGAR on May 17, 1999 (accession number
0001004402-99-000279).
(12) Opinion and consent of Wilmer, Cutler & Pickering regarding the tax
consequences of the transactions is filed herewith.
<PAGE>
(13) Material Service Contracts
(a) Administration Agreement between Registrant and Forum Administrative
Services, LLC relating to BIA Small-Cap Growth Fund, BIA Growth Equity
Fund, Austin Global Equity Fund, Equity Index Fund, Investors Bond Fund,
Investors Equity Fund, Investors Growth Fund, Investors High Grade Bond
Fund, Maine Municipal Bond Fund, New Hampshire Bond Fund, Payson Balanced
Fund, Payson Value Fund, Polaris Global Value Fund and Investor Shares,
Institutional Shares and Institutional Service Shares of Daily Assets
Government Fund, Daily Assets Treasury Obligations Fund, Daily Assets
Government Obligations Fund, Daily Assets Cash Fund and Daily Assets
Municipal Fund is incorporated herein by reference. The Administration
Agreement, Exhibit (h)(1) to post effective amendment 72, was filed via
EDGAR on June 16, 1999 (accession number 0001004402-99-000308).
(b) Fund Accounting Agreement between Registrant and Forum Accounting Services,
LLC regarding to BIA Small-Cap Growth Fund, BIA Growth Equity Fund, Austin
Global Equity Fund, Equity Index Fund, Investors Bond Fund, Investors
Equity Fund, Investors Growth Fund, Investors High Grade Bond Fund, Maine
Municipal Bond Fund, New Hampshire Bond Fund, Payson Balanced Fund, Payson
Value Fund, Polaris Global Value Fund and Investor Shares, Institutional
Shares and Institutional Service Shares of Daily Assets Government Fund,
Daily Assets Treasury Obligations Fund, Daily Assets Government Obligations
Fund, Daily Assets Cash Fund and Daily Assets Municipal Fund is
incorporated herein by reference. The Fund Accounting Agreement, Exhibit
(h)(3) to post effective amendment 72, was filed via EDGAR on June 16, 1999
(accession number 0001004402-99-000308).
(c) Transfer Agency and Services Agreement between Registrant and Forum
Shareholder Services, LLC relating to BIA Small-Cap Growth Fund, BIA Growth
Equity Fund, Austin Global Equity Fund, Equity Index Fund, Investors Bond
Fund, Investors Equity Fund, Investors Growth Fund, Investors High Grade
Bond Fund, Maine Municipal Bond Fund, New Hampshire Bond Fund, Payson
Balanced Fund, Payson Value Fund, Polaris Global Value Fund and Investor
Shares, Institutional Shares and Institutional Service Shares of Daily
Assets Government Fund, Daily Assets Treasury Obligations Fund, Daily
Assets Government Obligations Fund, Daily Assets Cash Fund and Daily Assets
Municipal Fund is incorporated herein by reference. The Transfer Agency and
Services Agreement, Exhibit (h)(5) to post effective amendment 62, was
filed via EDGAR on May 26, 1998 (accession number 0001004402-98-000307).
(d) Shareholder Service Plan of Registrant and Form of Shareholder Service
Agreement regarding the Institutional Service and Investor Classes of Daily
Assets Treasury Obligations Fund, Daily Assets Government Obligations Fund,
Daily Assets Government Fund, Daily Assets Cash Fund, and Daily Assets
Municipal Fund is incorporated herein by reference. The Shareholder Service
Plan and Form of Shareholder Service Agreement, Exhibit (h)(8) to post
effective amendment 50, was filed via EDGAR on November 12, 1997 (accession
number 0001004402-97-000189).
(e) Shareholder Service Plan and Form of Shareholder Service Agreement relating
to Polaris Global Value Fund is incorporated herein by reference. The
Shareholder Service Plan and Form of Shareholder Service Agreement, Exhibit
(h)(9) to post effective amendment 65, was filed via EDGAR on September 30,
1998 (accession number 0001004402-98-000530).
<PAGE>
(14) Other Opinions
(a) Consents of Wolpoff & Company LLP dated April 9, 1999 are incorporated
herein by reference. Consents of Wolpoff & Company LLP, Exhibit (14)(a) to
pre-effective amendment 1 on Form N-14, was filed via EDGAR on May 17, 1999
(accession number 0001004402-99-000279).
(b) Consent of Deloitte & Touche, LLP dated May 14, 1999 is incorporated herein
by reference. Consents of Deloitte & Touche LLP, Exhibit (14)(b) to
pre-effective amendment 1 on Form N-14, was filed via EDGAR on May 17, 1999
(accession number 0001004402-99-000279).
(15) None.
(16) Powers of Attorney of Costas Azariadas, James C. Cheng, John Y. Keffer, and
J. Michael Parish are incorporated herein by reference. The Powers of
Attorney, Exhibit 16 to Form N-14, filed via EDGAR on April 7, l998
(accession number 0000919574-98-000466).
ITEM 17 - Undertakings
(1) The undersigned registrant agrees that prior to any public reoffering of
the securities registered through the use of a prospectus which is a part
of this registration statement by any person or party who is deemed to be
an underwriter within the meaning of Rule 145(c) of the Securities Act [17
CFR 230.145c], the reoffering prospectus will contain the information
called for by the applicable registration form for reofferings by persons
who may be deemed underwriters, in addition to the information called for
by the other items of the applicable form.
(2) The undersigned registrant agrees that every prospectus that is filed under
paragraph (1) above will be filed as a part of an amendment to the
registration statement and will not be used until the amendment is
effective, and that, in determining any liability under the Securities Act,
each post- effective amendment shall be deemed to be a new registration
statement for the securities offered therein, and the offering of the
securities at that time shall be deemed to be the initial bona fide
offering of them.
(3) The undersigned Registrant agrees to file a copy of the opinion Forum
Administrative Services, LLC regarding the legality of securities to be
issued and as required to be filed as an exhibit to the registration
statement by Item 16(11) of Form N-14 under the Securities Act of 1933, as
amended by means of a pre-effective amendment to the registration
statement.
(4) The undersigned Registrant agrees to file a copy of the tax opinion
required to be filed as an exhibit to the registration statement by Item
16(12) of Form N-14 under the Securities Act of 1933, as amended, by means
of a post-effective amendment to the registration statement.
<PAGE>
SIGNATURES
As required by the Securities Act of 1933, this Registration Statement has been
signed on behalf of the Registrant in the city of Portland and State of Maine,
July 23, 1999.
FORUM FUNDS
By: /s/ John Y. Keffer
John Y. Keffer
President
As required by the Securities Act of 1933, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated:
Signature Title Date
Principal Executive Officer
/s/ John Y. Keffer Chairman and President July 23, 1999
- ------------------------------------
John Y. Keffer
Principal Financial
and Accounting Officer
/s/ Stacey Hong Treasurer July 23, 1999
Stacey Hong
A majority of the Trustees
/s/ John Y. Keffer July 23, 1999
- ------------------------------------
John Y. Keffer
Costas Azariadis
James C. Cheng
J. Michael Parish
/s/ John Y. Keffer July 23, 1999
- ------------------------------------
By: John Y. Keffer
(Attorney-in-fact)
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
(12) Opinion of Wilmer, Cutler & Pickering regarding the tax
consequences of the transactions
Exhibit 12)
June 29, 1999
BIA Emerging Growth Fund Limited Partnership
c/o BAT Commingled Fund Manager, Inc.
General Partner
19 South Street
P.O. Box 515
Baltimore, MD 21203
Ladies and Gentlemen:
You have requested our opinion regarding certain United States
federal income tax consequences to BIA Emerging Growth Fund Limited Partnership,
a Delaware limited partnership (the "Partnership"), BIA Small-Cap Growth Fund, a
separate series of Forum Funds, a Delaware business trust (the "Fund"), and the
limited partners of the Partnership (the "Partners") of (1) the Partnership's
transfer of substantially all of its assets in exchange solely for substantially
all of the shares of beneficial interest of the Fund ("Shares"), pursuant to the
Agreement and Plan of Reorganization, dated as of June 23, 1999 (the "Plan");
and (2) the dissolution of the Partnership and the distribution of the Shares to
the Partners. The exchange of substantially all of the Partnership's assets for
Shares pursuant to the Plan is referred to herein as the "Exchange."
We have reviewed and rely upon the Plan; the Form N-14,
including all exhibits thereto, filed by Forum Funds with the Securities and
Exchange Commission on April 19, 1999, and amendments thereto (collectively, the
"Registration Statement"); the Amended and Restated Limited Partnership
Agreement of the Partnership, effective as of June 7, 1995; and such other
documents as we have deemed relevant for purposes of rendering this opinion. We
have assumed the genuineness of all signatures, the proper execution of all
documents, the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies, and the
authenticity of the originals of any such copies. We have further assumed that
all parties to agreements that we have examined have acted, and will act, in
accordance with the terms of such agreements.
We have also relied on the accuracy of the representations
contained in letters to us from the Partnership and the Fund. We have not
attempted to verify independently such representations, but in the course of our
representation of the Partnership, nothing has come to our attention which would
cause us to question the accuracy thereof.
Based on and subject to the foregoing, and on our
consideration of such other matters of fact and law as we have deemed necessary
or appropriate, it is our opinion that:
1. The Partnership will recognize no gain or loss upon its transfer of
substantially all of its assets to the Fund solely in exchange for Shares.
2. The Partnership's basis in the Shares received from the Fund will equal the
basis of the assets transferred in exchange therefor.
3. The Partnership's holding period of the Shares received from the Fund will
include the period during which the Partnership held the assets exchanged
therefor, provided that such assets were capital assets or property
described in section 1231 of the Internal Revenue Code of 1986, as amended
(the "Code"), on the date of the exchange.
4. The Fund will recognize no gain or loss on its receipt of substantially all
of the Partnership's assets in exchange for Shares.
5. The Fund's basis in the assets received from the Partnership will equal the
basis of those assets in the hands of the Partnership immediately prior to
the Exchange.
6. The Fund's holding period for the assets received from the Partnership will
include the holding period during which the Partnership held the assets.
7. The Partnership will not recognize gain or loss on the distribution of the
Shares received from the Fund to the Partners.
<PAGE>
8. A Partner will not recognize gain or loss on the Partnership's distribution
of Shares to that Partner, but a Partner may recognize gain if cash
distributed or deemed distributed to that Partner exceeds such Partner's
adjusted basis in its interest in the Partnership ("Partnership Interest").
Each Partner will be deemed to receive a cash distribution from the
Partnership equal to any decrease in its allocable share of Partnership
liabilities occurring in connection with the Exchange and the dissolution
and winding up of the Partnership.
9. The holding period of the Shares received by each Partner will include the
period during which the Partnership is treated as having held those Shares
under paragraph 3 above, but will not include the period during which such
Partner held its Partnership Interest.
10. The aggregate basis of the Fund Shares received by each Partner will be
equal to such Partner's adjusted basis in its Partnership Interest minus
the amount of cash distributed or deemed distributed to such Partner in
connection with the dissolution and winding up of the Partnership.
This opinion is based on relevant provisions of the Code, the
Treasury Regulations promulgated thereunder, and interpretations of the
foregoing as expressed in court decisions and administrative determinations, as
currently in effect. We undertake no obligation to update or supplement this
opinion to reflect any changes in law that may occur.
We express no opinion as to the United States federal income
tax consequences of the Exchange except as expressly set forth above, or as to
any transaction except those consummated in accordance with the Plan and the
representations made to us. In particular, we express no opinion with respect to
the tax consequences of the liquidation of Partnership assets to redeem the
Partnership Interests of certain Partners prior to the Exchange, or the tax
consequences of such redemptions. This opinion does not address any tax
considerations under foreign, state, or local law.
This opinion should not be quoted in whole or in part nor
otherwise be referred to, nor otherwise be filed with or furnished to any
governmental agency or other person or entity, without our express prior written
consent. We hereby consent to the filing of this opinion letter
as an exhibit to the Registration Statement and to the reference to our firm
under the caption "Legal Matters" in the Proxy Statement/Prospectus included in
the Registration Statement.
Very truly yours,
WILMER, CUTLER & PICKERING
By: /s/ Terrill A. Hyde
Terrill A. Hyde
A Partner
<PAGE>
June 29, 1999
BIA Growth Equity Fund Limited Partnership
c/o BAT Commingled Fund Manager, Inc.
General Partner
19 South Street
P.O. Box 515
Baltimore, MD 21203
Ladies and Gentlemen:
You have requested our opinion regarding certain United States
federal income tax consequences to BIA Growth Equity Fund Limited Partnership, a
Delaware limited partnership (the "Partnership"), BIA Growth Equity Fund, a
separate series of Forum Funds, a Delaware business trust (the "Fund"), and the
limited partners of the Partnership (the "Partners") of (1) the Partnership's
transfer of substantially all of its assets in exchange solely for substantially
all of the shares of beneficial interest of the Fund ("Shares"), pursuant to the
Agreement and Plan of Reorganization, dated as of June 23, 1999 (the "Plan");
and (2) the dissolution of the Partnership and the distribution of the Shares to
the Partners. The exchange of substantially all of the Partnership's assets for
Shares pursuant to the Plan is referred to herein as the "Exchange."
We have reviewed and rely upon the Plan; the Form N-14,
including all exhibits thereto, filed by Forum Funds with the Securities and
Exchange Commission on April 19, 1999, and amendments thereto (collectively, the
"Registration Statement"); the Amended and Restated Limited Partnership
Agreement of the Partnership, dated as of December 6, 1995; and such other
documents as we have deemed relevant for purposes of rendering this opinion. We
have assumed the genuineness of all signatures, the proper execution of all
documents, the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies, and the
authenticity of the originals of any such copies. We have further assumed that
all parties to agreements that we have examined have acted, and will act, in
accordance with the terms of such agreements.
We have also relied on the accuracy of the representations
contained in letters to us from the Partnership and the Fund. We have not
attempted to verify independently such representations, but in the course of our
representation of the Partnership, nothing has come to our attention which would
cause us to question the accuracy thereof.
Based on and subject to the foregoing, and on our
consideration of such other matters of fact and law as we have deemed necessary
or appropriate, it is our opinion that:
1. The Partnership will recognize no gain or loss upon its transfer of
substantially all of its assets to the Fund solely in exchange for Shares.
2. The Partnership's basis in the Shares received from the Fund will equal the
basis of the assets transferred in exchange therefor.
3. The Partnership's holding period of the Shares received from the Fund will
include the period during which the Partnership held the assets exchanged
therefor, provided that such assets were capital assets or property
described in section 1231 of the Internal Revenue Code of 1986, as amended
(the "Code"), on the date of the exchange.
4. The Fund will recognize no gain or loss on its receipt of substantially all
of the Partnership's assets in exchange for Shares.
5. The Fund's basis in the assets received from the Partnership will equal the
basis of those assets in the hands of the Partnership immediately prior to
the Exchange.
6. The Fund's holding period for the assets received from the Partnership will
include the holding period during which the Partnership held the assets.
<PAGE>
7. The Partnership will not recognize gain or loss on the distribution of the
Shares received from the Fund to the Partners.
8. A Partner will not recognize gain or loss on the Partnership's distribution
of Shares to that Partner, but a Partner may recognize gain if cash
distributed or deemed distributed to that Partner exceeds such Partner's
adjusted basis in its interest in the Partnership ("Partnership Interest").
Each Partner will be deemed to receive a cash distribution from the
Partnership equal to any decrease in its allocable share of Partnership
liabilities occurring in connection with the Exchange and the dissolution
and winding up of the Partnership.
9. The holding period of the Shares received by each Partner will include the
period during which the Partnership is treated as having held those Shares
under paragraph 3 above, but will not include the period during which such
Partner held its Partnership Interest.
10. The aggregate basis of the Fund Shares received by each Partner will be
equal to such Partner's adjusted basis in its Partnership Interest minus
the amount of cash distributed or deemed distributed to such Partner in
connection with the dissolution and winding up of the Partnership.
This opinion is based on relevant provisions of the Code, the
Treasury Regulations promulgated thereunder, and interpretations of the
foregoing as expressed in court decisions and administrative determinations, as
currently in effect. We undertake no obligation to update or supplement this
opinion to reflect any changes in law that may occur.
We express no opinion as to the United States federal income
tax consequences of the Exchange except as expressly set forth above, or as to
any transaction except those consummated in accordance with the Plan and the
representations made to us. In particular, we express no opinion with respect to
the tax consequences of the liquidation of Partnership assets to redeem the
Partnership Interests of certain Partners prior to the Exchange, or the tax
consequences of such redemptions. This opinion does not address any tax
considerations under foreign, state, or local law.
This opinion should not be quoted in whole or in part nor
otherwise be referred to, nor otherwise be filed with or furnished to any
governmental agency or other person or entity, without our express prior written
consent. We hereby consent to the filing of this opinion letter
as an exhibit to the Registration Statement and to the reference to our firm
under the caption "Legal Matters" in the Proxy Statement/Prospectus included in
the Registration Statement.
Very truly yours,
WILMER, CUTLER & PICKERING
By: /s/ Terrill A. Hyde
Terrill A. Hyde
A Partner
