<PAGE> 1
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ___ )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Sec. 240.14a-11(c) or Sec. 240.14a-12
BERGER INSTITUTIONAL PRODUCTS TRUST
(Name of Registrant as Specified In Its Charter)
---------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
________________
(2) Aggregate number of securities to which transaction applies:
________________
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
______________________________________
(4) Proposed maximum aggregate value of transaction:
_______________________
(5) Total fee paid: _____________________________________________________
[ ] Fee paid previously with preliminary proxy materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid: ____________________________________________
(2) Form, Schedule or Registration Statement No.:
__________________________
(3) Filing Party:________________________________________________________
(4) Date Filed:________________________________________________________
<PAGE> 2
BERGER INSTITUTIONAL PRODUCTS TRUST
210 UNIVERSITY BLVD., SUITE 900
DENVER, CO 80206
Dear Shareholders of the Berger/BIAM IPT - International Fund:
A Special Meeting of Shareholders of the Fund has been scheduled for
Friday, May 5, 2000. At the meeting, shareholders will be asked to approve a new
Investment Advisory Agreement and a new Sub-Advisory Agreement for the Fund.
More detail is contained in the accompanying Proxy Statement.
Recently, Berger LLC (Berger) and Bank of Ireland Asset Management (U.S.)
Limited (BIAM) announced their intention to dissolve their joint venture BBOI
Worldwide LLC (BBOI). Currently, Berger and BIAM provide investment advisory,
sub-advisory and administrative services to the Fund through BBOI. By dissolving
BBOI, Berger and BIAM are proposing to provide those services to the Fund
directly, instead of through BBOI.
This will not result in any change in the companies that actually provide
services to the Fund or in the services provided to the Fund. However, it will
result in a change in the companies that sign the investment advisory and
sub-advisory agreements for the Fund and, consequently, you are being asked to
approve new agreements. The investment advisory fee borne by the Fund will also
be decreased in connection with the new agreements. No change is proposed for
any other fees borne by the Fund. In addition, the investment objective,
policies and restrictions of the Fund will not change as a result of the new
agreements. BIAM will continue to be responsible for day-to-day management of
the Fund.
YOUR VOTE IS IMPORTANT. WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING IN
PERSON, PLEASE SIGN THE ENCLOSED VOTING INSTRUCTION CARD AND RETURN IT AS SOON
AS POSSIBLE IN THE ACCOMPANYING POSTAGE-PAID ENVELOPE. THE TRUSTEES OF THE FUND
RECOMMEND THAT YOU VOTE "FOR" THE PROPOSALS.
Accompanying this letter is a Proxy Statement, which you should consider
carefully before voting. Please do not hesitate to call 1-800-[_____] if you
have any questions about the proxy solicitation. Thank you for taking the time
to consider these important proposals and for your interest in the Fund.
Sincerely,
Jack R. Thompson
President
<PAGE> 3
IMPORTANT INFORMATION FOR VARIABLE ANNUITY CONTRACT OWNERS
AND VARIABLE LIFE INSURANCE POLICY OWNERS
These materials are for a special shareholders' meeting scheduled for May
5, 2000, at 11:00 a.m., Mountain time, relating to the Berger/BIAM IPT -
International Fund, a series of Berger Institutional Products Trust. They
discuss the proposals to be voted on at the meeting, and contain a proxy
statement and voting instruction card. A voting instruction card is, in essence,
a ballot. When you complete your voting instruction card, it tells your
insurance company how to vote its proxy on important issues relating to the
portion of your account that is allocated to the Fund.
If you complete and sign the voting instruction card, the shares will be voted
exactly as you instruct. If you simply sign and return the voting instruction
card, the shares will be voted in accordance with the Trustees' recommendations.
If you do not return a voting instruction card at all, the shares will be voted
in the same proportion as shares for which instructions have been received from
other variable annuity contract holders and variable life insurance
policyholders.
WE URGE YOU TO SPEND A FEW MINUTES REVIEWING THE PROPOSALS IN THE PROXY
STATEMENT. THEN, FILL OUT THE VOTING INSTRUCTION CARD AND RETURN IT IN THE
ENVELOPE PROVIDED.
<PAGE> 4
BERGER INSTITUTIONAL PRODUCTS TRUST
BERGER/BIAM IPT - INTERNATIONAL FUND
210 UNIVERSITY BLVD., SUITE 900
DENVER, CO 80206
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD MAY 5, 2000
A special meeting of the shareholders of the Berger/BIAM IPT -
International Fund (the Fund), a series of the Berger Institutional Products
Trust, a Delaware business trust (the Trust), will be held at 11:00 a.m. (local
time), at the office of the Fund, 210 University Blvd., Suite 900, Denver,
Colorado, on May 5, 2000, for the purpose of voting on the following proposals
(the Proposals) with respect to the Fund, and to transact such other business as
may properly come before the special meeting or any adjournment thereof:
PROPOSAL 1: To approve a new Investment Advisory Agreement for the Fund with
Berger LLC, as adviser.
PROPOSAL 2: To approve a new Sub-Advisory Agreement for the Fund between
Berger LLC and Bank of Ireland Asset Management (U.S.) Limited,
as investment sub-adviser.
THE TRUSTEES OF THE TRUST RECOMMEND THAT YOU VOTE FOR THE PROPOSALS, AS
MORE FULLY DESCRIBED IN THE ATTACHED PROXY STATEMENT.
By Order of the Trustees,
Sue Vreeland
[____________], 2000 Secretary
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, YOU ARE URGED TO SIGN, DATE AND
RETURN THE ENCLOSED VOTING INSTRUCTION CARD IN THE ACCOMPANYING STAMPED
ENVELOPE. IN ORDER TO AVOID UNNECESSARY DELAY, WE ASK YOUR COOPERATION IN
MAILING THE CARD PROMPTLY.
<PAGE> 5
PRELIMINARY COPY
BERGER INSTITUTIONAL PRODUCTS TRUST
BERGER/BIAM IPT - INTERNATIONAL FUND
210 UNIVERSITY BLVD., SUITE 900
DENVER, CO 80206
PROXY STATEMENT
FOR THE SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON MAY 5, 2000
This Proxy Statement is furnished in connection with the solicitation of
proxies by the Trustees of Berger Institutional Products Trust (the Trust), to
be used at the Special Meeting of Shareholders of the outstanding series of the
Trust known as the Berger/BIAM IPT - International Fund (the Fund) to be held on
May 5, 2000, at 11:00 a.m. (local time), at the office of the Fund, 210
University Blvd., Suite 900, Denver, Colorado, for the purposes set forth in the
accompanying Notice of Special Meeting of Shareholders, as further described
below.
Shares of the Fund are not offered directly to the public, but are sold
only in connection with investment in and payments under variable annuity
contracts and variable life insurance contracts (Variable Contracts) issued by
certain life insurance companies (Participating Insurance Companies). As a
result, the separate accounts of the Participating Insurance Companies, rather
than individual owners of Variable Contracts (Contract Owners), are the
shareholders of the Fund entitled to vote on the Proposals at the meeting.
However, under current law, a Participating Insurance Company is required to
request voting instructions from its Contract Owners and must vote Fund shares
held by each of its separate accounts in proportion to the voting instructions
received. Accordingly, Participating Insurance Companies are soliciting voting
instructions from the Contract Owners of the Variable Contracts with respect to
the matters set forth in this Proxy Statement. In connection with the
solicitation of voting instructions, the Participating Insurance Companies will
furnish a copy of this Proxy Statement to all Contract Owners.
Shareholders of the Fund of record at the close of business on March 6,
2000 (the Record Date), are entitled to attend and to vote at the meeting and at
any and all adjournments of the meeting. On the Record Date, there were
outstanding [_____________] shares of the Berger/BIAM IPT - International Fund.
These shares constitute all of the outstanding shares of the Trust entitled to
vote at the meeting. Each proposal and each item of other business which may
properly come before the meeting will be voted on separately. Each share is
entitled to one vote and each fractional share shall be entitled to a fractional
vote.
On the Record Date, separate accounts of Participating Insurance Companies
were the only shareholders of the Fund. As noted above, Contract Owners are
indirectly invested in the Fund through their Variable Contracts and have the
right to instruct their Participating Insurance Companies how to vote shares of
the Fund on all matters requiring a vote of shareholders. Contract Owners
indirectly invested in the Fund at the close of business on the Record Date will
be entitled to notice of the meeting and to instruct their Participating
Insurance Companies how to vote the number of shares of the Fund attributable to
their Variable Contracts at the meeting.
Contract Owners may use the voting instruction card included with this
Proxy Statement to instruct their Participating Insurance Companies how to vote
those shares attributable to their Variable Contracts as of the Record Date.
Participating Insurance Companies will vote the shares held in their respective
separate accounts at the meeting in accordance with their respective Contract
Owners' instructions.
If the accompanying voting instruction card is properly executed, returned
in time to be voted at the meeting and not revoked, the relevant Participating
Insurance Company will vote those shares in accordance with the Contract Owner's
instructions marked on the card. If the Contract Owners signs and returns the
voting instruction card, but does not indicate a choice as to the Proposals
presented, the relevant Participating Insurance company will
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vote the shares in accordance with the Trustees' recommendations. If a Contract
Owner does not return a voting instruction card at all, the shares attributable
to that Contract Owners will be voted in the same manner and in the same
proportion as the shares for which it has received instructions from other
Contract Owners.
An executed and returned voting instruction card may nevertheless be
revoked by a Contract Owner at any time before it is voted by sending written
notice of the revocation to the Fund or by appearing personally at the meeting
and instructing the Participating Insurance Company in person.
This Proxy Statement and the accompanying Notice of Special Meeting of
Shareholders and proxy are first being mailed to shareholders of record on or
about [________________], 2000. The Participating Insurance Companies will
furnish a copy of this Proxy Statement and voting instruction card to each of
their Contract Owners to solicit voting instructions.
The cost of preparing and mailing the Notice of Special Meeting of
Shareholders, the proxy, this Proxy Statement, and any additional proxy
material, will be borne by the Fund's investment advisor, BBOI Worldwide LLC, or
its affiliates, and not by the Fund. The most recently available annual report
of the Fund has been mailed to shareholders. IF YOU HAVE NOT RECEIVED THE REPORT
OR WOULD LIKE TO RECEIVE AN ADDITIONAL COPY, WITHOUT CHARGE, PLEASE WRITE TO THE
FUND AT 210 UNIVERSITY BLVD., SUITE 900, DENVER, COLORADO 80206, OR CALL
1-800-___________ AND IT WILL BE SENT BY FIRST-CLASS MAIL.
THE PROPOSALS TO BE VOTED UPON
At the meeting, shareholders will be asked to vote their shares to approve
a new Investment Advisory Agreement and a new Sub-advisory Agreement (the
Agreements) for the Fund, and to transact such other business as may properly
come before the meeting or any adjournment thereof.
THE TRUSTEES OF THE TRUST RECOMMEND THAT YOU VOTE FOR THE PROPOSALS, AS
MORE FULLY DESCRIBED BELOW.
Implementation of the proposed Agreements is contingent upon both Proposals
being approved. In other words, unless both Proposals are approved, neither of
the proposed Agreements will be implemented for the Fund. If the Proposals are
approved, it is anticipated that the new Agreements will be implemented as soon
as practicable after the meeting.
===============================================================================
BACKGROUND TO THE PROPOSALS
===============================================================================
WHY ARE THE NEW AGREEMENTS BEING PROPOSED?
New Agreements are proposed because Berger LLC (Berger) and Bank of Ireland
Asset Management (U.S.) Limited (BIAM) intend to dissolve their joint venture
BBOI Worldwide LLC (BBOI). BBOI currently serves as investment adviser to the
Fund. By dissolving BBOI, Berger and BIAM desire to begin providing services for
the Fund directly, rather than indirectly as they now do through BBOI. New
Agreements are being proposed to reflect that new arrangement and to reflect the
lower investment advisory fees paid under the Agreements.
WHO IS BBOI?
BBOI is a joint venture company owned 50/50 by Berger and BIAM. In
1996, Berger and BIAM formed BBOI with the intention of creating and servicing
new mutual funds together through BBOI. Currently, BBOI serves as the investment
adviser and administrator to the Fund. BBOI delegates its advisory and
administrative duties to its joint
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venture partners -- BIAM, which serves as sub-adviser, and Berger, which serves
as sub-administrator. However, Berger and BIAM have recently decided to dissolve
BBOI and desire to provide services to the Fund directly. Under the proposed new
arrangements, BBOI would not serve the Fund in any capacity.
WHAT NEW ARRANGEMENTS ARE PROPOSED?
As noted above, Berger and BIAM intend to dissolve BBOI and, subject to
shareholder approval at the meeting, to serve the Fund directly, rather than
through BBOI. Under the new arrangement, Berger would serve as investment
adviser and BIAM as sub-adviser. In addition, the investment advisory fee borne
by the Fund will be lowered, as will the sub-advisory fee paid by Berger to
BIAM.
In addition to advisory services, BBOI also currently provides for the Fund
administrative services. Under the new arrangement, Berger would be directly
responsible to the Fund for providing those services, rather than being
responsible for them indirectly through BBOI.
Under the new arrangements, the Fund would also change its name to Berger
IPT - International Fund.
WHY ARE SHAREHOLDERS BEING ASKED TO VOTE?
A shareholder vote is being requested since the re-alignment of the
companies providing advisory services to the Fund will not include BBOI.
Instead, new Agreements would be signed by Berger and BIAM, rather than BBOI.
The law requires that shareholders be asked to approve the new Investment
Advisory and Sub-Advisory Agreements before they are implemented. Shareholder
approval is not required or being requested to implement the new administrative
services arrangements or name change.
WOULD THIS CHANGE THE AMOUNT OF FEES PAID BY THE FUND?
Yes, they would be lowered. Currently, the Fund bears an investment
advisory fee at the annual rate of 0.90% of average daily net assets. Under the
new Investment Advisory Agreement, the Fund would bear an investment advisory
fee at the annual rate of 0.85% of the first $500 million of average daily net
assets, 0.80% of the next $500 million, and 0.75% of all amounts in excess of $1
billion. There is no change proposed in the nature or level of any services
being provided to the Fund.
Shareholders in the Fund do not pay any sales loads, redemption or exchange
fees, but do bear indirectly the Fund's annual fund operating expenses, which
vary from year to year. The following table shows the current annual fund
operating expenses of the Fund as of the last fiscal year end, December 31,
1999, and the pro forma annual fund operating expenses as if the new Investment
Advisory Agreement had been in effect throughout the last fiscal year. The
following expenses do not include any charges or expenses deducted by your
variable insurance contract or retirement plan. Refer to your variable contract
prospectus or retirement plan documents for an explanation of those charges and
expenses.
BERGER/BIAM IPT - INTERNATIONAL FUND
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
ANNUAL FUND OPERATING EXPENSES CURRENT PRO FORMA AS IF NEW ADVISORY
(DEDUCTED DIRECTLY FROM THE FUND) AGREEMENT HAD BEEN IN EFFECT
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Management fee 0.90% 0.85%
- -----------------------------------------------------------------------------------------------------------
Other expenses 1.56% 1.55%
- -----------------------------------------------------------------------------------------------------------
TOTAL ANNUAL FUND OPERATING EXPENSES 2.46% 2.40%
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
FEE WAIVER AND REIMBURSEMENT (1) (1.26)% (1.20)
- -----------------------------------------------------------------------------------------------------------
NET EXPENSES 1.20% 1.20%
- -----------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 8
(1) Under a written contract, the Fund's investment advisor waives its fee and
reimburses the Fund to the extent that, at any time during the life of the Fund,
the Fund's annual operating expenses exceed 1.20%. The contract may not be
terminated or amended except by a vote of the Fund's Board of Trustees
EXAMPLE COSTS
The following example helps you compare the cost of investing in the Fund to the
cost of investing in other mutual funds by showing what your costs may be over
time. They use the same assumptions that other funds use in their prospectuses:
o $10,000 initial investment
o 5% total return for each year
o Fund operating expenses remain the same for each period
o Redemption after the end of each period
Your actual costs may be higher or lower, so these examples should be used for
comparison only. Based on these assumptions your costs at the end of each period
would be:
BERGER/BIAM IPT - INTERNATIONAL FUND
<TABLE>
<CAPTION>
- -----------------------------------------------------------------
Years Current Pro Forma
- -----------------------------------------------------------------
<S> <C> <C>
One $ 122 $ 122
- -----------------------------------------------------------------
Three $ 381 $ 381
- -----------------------------------------------------------------
Five $ 660 $ 660
- -----------------------------------------------------------------
Ten $ 1,455 $ 1,455
- -----------------------------------------------------------------
</TABLE>
The following table shows the total dollar amounts of the advisory and
administrative services fees paid by the Fund during the fiscal year ended
December 31, 1999. All of these amounts were paid to BBOI:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
FUND ADVISORY FEE (1) ADMINISTRATIVE WAIVER (2) TOTAL
SERVICES FEE(1)
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Berger/BIAM IPT - $ 49,260 $ 409 $ 49,669 $ 0
International Fund
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Reflects fees earned by BBOI before waiver.
(2) Under a written contract, BBOI waives its investment advisory fee and
reimburses certain expenses to the extent that, at any time during the life of
the Fund, the Fund's annual operating expenses in any fiscal year, including the
investment advisory fee and custodian fees, but excluding brokerage commissions,
interest, taxes and extraordinary expenses, exceed 1.20% of the Fund's average
daily net assets for that fiscal year. The contract may not be terminated or
amended except by a vote of the Fund's Board of Trustees. Berger has agreed to
sign a written contract limiting the Fund's expenses at the same level, if the
new Agreements are approved and implemented.
Under the current Sub-Advisory Agreement, BBOI (and not the Fund) is
responsible for paying BIAM a sub-advisory fee at the annual rate of 0.45% of
average daily net assets. During the fiscal year ended December 31, 1999, BIAM
waived a portion of the sub-advisory fees it was entitled to receive under the
Sub-Advisory Agreement. This sub-advisory fee waiver was scheduled to terminate
effective October 15, 2000. During the fiscal year ended December 31,
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<PAGE> 9
1999, BIAM earned $24,630 in sub-advisory fees, of which BBOI paid BIAM $0,
after waiver. Under the new Sub-Advisory Agreement, Berger (and not the Fund)
will be responsible for paying BIAM a sub-advisory fee at the annual rate of
0.45% of the first $50 million of average daily net assets, 0.40% of the next
$50 million, and 0.30% of all amounts in excess of $100 million. If this new
sub-advisory fee had been in effect during the fiscal year ended December 31,
1999, the sub-advisory fee earned by BIAM would not have changed from the amount
earned during that fiscal year.
WOULD THIS CHANGE THE FUND'S INVESTMENT OBJECTIVE OR POLICIES?
No. The Fund's investment objectives and investment policies, limitations,
restrictions and guidelines are not proposed to change in any respect.
WOULD THIS CHANGE THE FUND'S DAY-TO-DAY INVESTMENT MANAGEMENT?
No. As stated above, BIAM will continue as sub-adviser providing the
day-to-day investment management of the Fund, if shareholders approve the new
Agreements.
WOULD THIS CHANGE THE DUTIES OR SERVICES FOR WHICH BERGER AND BIAM ARE EACH
RESPONSIBLE?
Although there will be no change in the nature or level of services
provided to the Fund, there is proposed to be a change in the alignment of the
companies responsible for providing those services. Currently, BBOI serves both
as investment adviser and administrator to the Fund. BBOI delegates its
investment advisory responsibilities to BIAM, as sub-adviser, and delegates its
administrative duties to Berger, as sub-administrator.
In contrast, under the new Agreements, Berger will serve directly as
investment adviser to the Fund and, in that capacity, will be responsible for
managing all their investment operations, including overseeing, evaluating and
monitoring any sub-adviser. Berger will also serve directly as the Fund's
administrator. BIAM will continue to be responsible for day-to-day investment
management of the Fund's portfolio in its capacity as sub-adviser.
The new arrangements will re-align the Fund's service providers in a way
that is more consistent with the other mutual funds in the Berger Funds family
and is believed to be more understandable to investors.
WHAT DID THE TRUSTEES CONSIDER AND WHAT IS THEIR RECOMMENDATION?
At a meeting held on February 15, 2000, the Trustees of the Trust,
including a majority of the Trustees who are not "interested persons" of the
Fund or BBOI (the Independent Trustees) as defined in the Investment Company Act
of 1940 (1940 Act), approved the new Investment Advisory Agreement with Berger,
and the new Sub-Advisory Agreement between Berger and BIAM, contingent on
shareholder approval. They also approved the new administrative services
arrangements and name change which are not being submitted for shareholder vote.
In considering whether to approve the Agreements and to recommend approval
to shareholders, the Trustees inquired into a number of matters and considered
various factors. The materials considered by the Trustees included information
regarding Berger and BIAM and their personnel, operations, financial condition
and investment philosophy.
In addition to these and other matters, the Trustees considered:
o Berger's history as adviser of the Berger Funds and BIAM's reputation and
track record as sub-adviser of the Fund
o the fact that the current day-to-day investment management is not proposed
to change
o the fact that the investment advisory fee is proposed to be decreased, and
that the other fees paid or borne by the Fund are not proposed to change
o the fact that under the proposed arrangements, Berger will be directly
responsible to the Fund for investment advice provided, even though
day-to-day portfolio management will continue to be the responsibility of
BIAM
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<PAGE> 10
o the fact that Berger and BIAM have committed to use their best efforts to
ensure compliance with Section 15(f) of the 1940 Act (see "Section 15(f) of
the Investment Company Act of 1940" below), including avoiding any "unfair
burden" (as defined in the Act) to the Fund as a result of the dissolution
of BBOI.
The Trustees believed it was especially important that the investment
advisory fee is proposed to be decreased and that otherwise, there would no
change to the fees paid or borne by the Fund and no change in the day-to-day
management of the Fund's portfolio. In addition, the fact that Berger and BIAM
would continue to be responsible for the investment advice provided was
considered significant to assuring quality and consistency of investment
management under the new Agreements. Moreover, the Trustees believed it was
important that Berger and BIAM had committed to using best efforts to ensure
compliance with Section 15(f).
The Trustees recognized that this new arrangement re-aligns the companies
providing services to the Fund, but believed that the proposed arrangement
reflects at least as accurately as the current arrangement the allocation in
practice of responsibilities between Berger and BIAM. In addition, the Trustees
believed that Berger and BIAM are capable of adequately fulfilling their
respective responsibilities in their proposed roles at least as well as in their
current roles.
Finally, the Trustees also believed there may be an advantage in
understandability and efficiency to having the adviser and sub-adviser
relationships for the Fund more consistent with those applicable to the other
Berger Funds, and believed it is important that the entire cost of the
shareholders' meeting and the preparation and solicitation of proxies is to be
borne by BBOI and not by the Fund or the Trust.
After examining relevant materials furnished to them, meeting with
executive officers of BBOI and discussing the foregoing factors, the Trustees
(including the Independent Trustees) determined that the proposed Agreements
would be in the best interests of the Fund and its shareholders. Accordingly,
subject to shareholder approval of the Fund, the terms of the Agreements were
unanimously approved by the Trustees (including the Independent Trustees). The
Trustees further directed that the Agreements be submitted to a shareholder vote
with the Trustees' unanimous recommendation for approval.
If the shareholders of the Fund do not approve both of the Proposals, the
proposed arrangements and Agreements will not be implemented for the Fund, and
the current Investment Advisory Agreement and Sub-Advisory Agreement will
continue in effect. In that event, the Trustees would consider what further
action, if any, should be taken in the best interests of the Fund and its
shareholders.
THE TRUSTEES UNANIMOUSLY RECOMMEND THAT SHAREHOLDERS VOTE TO APPROVE THE
PROPOSALS.
==============================================================================
THE NEW AGREEMENTS
==============================================================================
WHAT ARE THE KEY PROVISIONS OF THE PROPOSED NEW AGREEMENTS?
The services provided to the Fund under the new Agreements are, in
substance, the same as those provided under the current Investment Advisory
Agreement and Sub-Advisory Agreement. However, under the new Agreements, instead
of BBOI acting as adviser and delegating all of its duties to BIAM as
sub-adviser, Berger will act as adviser and engage BIAM as sub-adviser.
Following is a brief description of some of the key provisions of the new
Agreements.
Advisory Services. Under the proposed new Investment Advisory Agreement,
Berger will be responsible, as adviser, for the same duties that BBOI is
responsible for under the current Investment Advisory Agreement. In general,
Berger will be responsible for managing all the investment operations of the
Fund.
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<PAGE> 11
As is the case under the current Investment Advisory Agreement, Berger will
be permitted under the proposed Investment Advisory Agreement to engage a
sub-adviser in furtherance of its duties and responsibilities under the
Investment Advisory Agreement, subject to approval of the Trustees. Berger will
engage BIAM to be responsible for day-to-day investment management
responsibilities under the Sub-Advisory Agreement.
BIAM's responsibilities under the proposed Sub-Advisory Agreement are in
substance the same as they are under the current Sub-Advisory Agreement. BIAM is
and will continue to be responsible for day-to-day investment management of the
Fund's portfolio.
Fees. The investment advisory fee borne or paid by the Fund under the new
Investment Advisory Agreement will be lower than that currently borne by the
Fund. Currently, BBOI is paid an investment advisory fee of 0.90% of the average
daily net assets of the Fund. Under the new Investment Advisory Agreement,
Berger will be paid an investment advisory fee at the annual rate of 0.85% of
the first $500 million of average daily net assets, 0.80% of the next $500
million, and 0.75% of all amounts in excess of $1 billion.
The sub-advisory fee paid by the adviser to the sub-adviser will also be
lowered. Currently, BBOI is obligated to pay BIAM, before waiver, a sub-advisory
fee at an annual rate of 0.45% of average daily net assets. Under the new
Sub-Advisory Agreement, Berger will pay BIAM a sub-advisory fee at the annual
rate of 0.45% of the first $50 million of average daily net assets, 0.40% of the
next $50 million, and 0.30% of all amounts in excess of $100 million. The Fund
is not currently responsible for paying BIAM's sub-advisory fee, and it will not
be responsible for paying BIAM's sub-advisory fee under the new Sub-Advisory
Agreement either.
Liability Limitation. Under the liability limitation provisions of the new
Agreements, neither Berger nor BIAM will be liable for losses as the result of
any error of judgment or mistake of law in performing its services, except for
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties under
the Agreements and except to the extent otherwise provided by law. This is the
same as the liability limitation provision that appears in the current
Investment Advisory and Sub-Advisory Agreements. In addition, the new Investment
Advisory Agreement with Berger eliminates all indemnity provisions contained in
the current Investment Advisory Agreement, consistent with the advisory
agreements for the other Berger Funds. Further, the liability limitations and
indemnifications in the Sub-Advisory Agreement between Berger and BIAM are
proposed to remain the same as those in the current Sub-Advisory Agreement,
except that a provision will be added to limit Berger's liability to BIAM in the
same manner as BIAM's liability is limited to Berger and the Trust.
Term. The current Investment Advisory and Sub-Advisory Agreements are dated
May 1, 1997, and were last submitted to a vote and approved by the initial
shareholder at the inception of the Fund on May 1, 1997. Continuation of the
current Agreements was last approved on April 15, 1999.
If approved by shareholders, the new Agreements will be implemented and
remain in effect until April 2002, and will thereafter continue for successive
one-year periods if continuation is specifically approved at least annually by
the Trustees, or by the vote of a "majority of the outstanding voting
securities" of the Fund as defined under the 1940 Act and, in either case, by a
majority of the Independent Trustees of the Trust by votes cast in person at a
meeting called for that purpose.
Termination. The new Agreements may be terminated at any time, without
penalty, by vote of the Trustees or by the vote of "a majority of the
outstanding voting securities" on 60 days' written notice. The Sub-Advisory
Agreement may also be terminated by Berger or by BIAM: (i) upon a material
breach without cure of certain covenants contained in the agreement between
Berger and BIAM relating to the dissolution of BBOI; (ii) upon a material breach
of the Sub-Advisory Agreement; or (iii) after the expiration of 5 years from the
date of the Sub-Advisory Agreement, upon 60 days' advance written notice. The
Agreements will terminate automatically in the event of an "assignment" (as
defined under the 1940 Act).
7
<PAGE> 12
Forms of the proposed new Agreements are attached to this Proxy Statement
as Appendix A and Appendix B and should be referred to for details.
===============================================================================
OTHER FUND AND ADVISER INFORMATION
===============================================================================
OTHER INFORMATION ABOUT BBOI, BERGER AND BIAM
BBOI is the current investment adviser and administrator to the Fund.
BBOI's principal business address is 210 University Blvd., Suite 900, Denver, CO
80206. The principal executive officers of BBOI are Jack R. Thompson and Denis
Curran, who constitute the Board of Managers of BBOI and each serve as co-Chief
Executive Officers on its Management Committee. Mr. Thompson is President of
Berger. Mr. Curran is President of BIAM. Berger and BIAM each own a 50%
membership interest in BBOI.
Berger is the proposed investment adviser and administrator to the Fund.
The principal executive officer of Berger is Jack R. Thompson, President. Berger
is a subsidiary of Stilwell Management, Inc., which owns more than 80% of Berger
and is its sole member/manager. The principal business address of Berger and
Stilwell Management, Inc. is 210 University Blvd., Suite 900, Denver, CO 80206.
Berger is an indirect subsidiary of Stilwell Financial Inc., which in turn is a
wholly owned subsidiary of Kansas City Southern Industries, Inc. (KCSI). KCSI is
a publicly traded holding company with principal operations in rail
transportation, through its subsidiary The Kansas City Southern Railway Company,
and financial asset management businesses.
BIAM is the current and proposed sub-adviser to the Fund. BIAM's main
offices are at 26 Fitzwilliam Place, Dublin 2, Ireland. BIAM maintains a
representative office at 20 Horseneck Lane, Greenwich, CT 06830. The principal
executive officer of BIAM is William R. Cotter, Chief Executive Officer. In
addition to Mr. Cotter, the following individuals serve as directors of BIAM:
Denis Curran, President and Chief Operating Officer; Thomas A. Finlay, Head of
Institutional Client Services, Ireland; M. Christopher Reilly, Chief Investment
Officer; and Rosemary Mahon, Senior Vice President. BIAM is an indirect
wholly-owned subsidiary of Bank of Ireland, a publicly traded, diversified
financial services group with business operations worldwide.
Berger does not act as adviser or sub-adviser to any other mutual fund with
an investment objective similar to that of the Funds. However, BIAM acts as
sub-adviser to the following mutual funds having a similar investment objective.
Information regarding those funds is provided as of December 31, 1999:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
FUND SIZE OF FUND FEE (AS A PERCENTAGE OF NET ASSETS)
(NET ASSETS)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Allmerica Select International Equity $678,040,000 0.45% of the first $50 million
Fund 0.40% of the next $50 million
0.30% of amounts over $100 million
- ---------------------------------------------------------------------------------------------------------------
American Odyssey Funds, Inc. $388,754,081 0.45% of the first $50 million
International Equity 0.40% of the next $50 million
0.30% of amounts over $100 million
- ---------------------------------------------------------------------------------------------------------------
SAFECO International Stock Fund $39,365,136 0.60% of the first $50 million
0.50% of the next $50 million
0.40% of amounts over $100 million
- ---------------------------------------------------------------------------------------------------------------
RSI Retirement Fund $58,127,163 0.75% of the first $20 million
0.50% of the next $30 million
0.35% of amounts over $50 million
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE> 13
OTHER FUND TRUSTEE AND OFFICER INFORMATION
Paul R. Knapp serves as an Independent Trustee of the Fund. Mr. Knapp is
the Chairman, President, Chief Executive Officer and a director of Catalyst
Institute, an international public policy research organization focused
primarily on financial markets and institutions. Mr. Knapp also serves as
President, Chief Executive Officer and a director of DST Catalyst, Inc., an
international financial markets consulting, software and computer services
company, which is an 81% owned subsidiary of DST Systems, Inc. (DST). He also
serves as a director of West Side Investments, Inc. (investments), which is a
wholly-owned subsidiary of DST. DST is a publicly traded information and
transaction processing company which acts as the Fund's transfer agent.
Approximately 32% of the outstanding shares of DST are owned by Stilwell
Management, Inc. DST may be considered an affiliate of Berger due to the
ownership interest of Stilwell Management, Inc. in both DST and Berger.
The following individuals serve as officers or Trustees of the Fund and as
officers or directors of BBOI, Berger or BIAM:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
NAME POSITION WITH FUNDS POSITION WITH ADVISER OR SUB-ADVISER
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Jack R. Thompson President and Trustee President and Chief Executive Officer of Berger;
co-Chief Executive Officer on BBOI's Management
Committee; member of Board of Managers of BBOI
- ---------------------------------------------------------------------------------------------------------------
Janice M. Teague Vice President and Assistant Vice President - Administration and Secretary of
Secretary Berger
- ---------------------------------------------------------------------------------------------------------------
Anthony R. Bosch Vice President Vice President - Legal of Berger
- ---------------------------------------------------------------------------------------------------------------
David J. Schultz Vice President and Treasurer Vice President - Finance, Treasurer and Chief
Financial Officer of Berger
- ---------------------------------------------------------------------------------------------------------------
Brian Ferrie Vice President Vice President - Chief Compliance Officer of Berger
- ---------------------------------------------------------------------------------------------------------------
John Paganelli Assistant Treasurer Vice President - Accounting of Berger
- ---------------------------------------------------------------------------------------------------------------
Sue Vreeland Secretary Assistant Secretary of Berger
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
In September 1999, Mr. Thompson received an interest in Berger as part of
his compensation as an executive officer of Berger.
SECTION 15(f) OF THE INVESTMENT COMPANY ACT OF 1940
As part of the dissolution of BBOI, Berger and BIAM will receive agreed
upon distributions from BBOI, and Berger and BBOI will forego receipt of certain
amounts from BIAM that BIAM would otherwise owe as a joint venturer in BBOI. As
a result, Section 15(f) of the 1940 Act may be considered to apply to the
dissolution. That section generally provides that Berger, BIAM or BBOI may
receive benefits in connection with the sale of an interest in BBOI resulting in
an "assignment" (transfer) of the current Investment Advisory Agreement or
Sub-Advisory Agreement if:
o for three years following the transaction, at least 75% of the Trustees of
the Fund are Independent Trustees, and
9
<PAGE> 14
o no "unfair burden" (as defined in the 1940 Act) is imposed on the Fund as a
result of the transaction or any express or implied terms, conditions or
understandings applicable to the transaction.
Currently, more than 75% of the Trustees of the Trust are Independent
Trustees. In addition, for a period of three years following the dissolution of
BBOI, Berger has agreed to use its best efforts to assure that at least 75% of
the Trustees of the Fund are Independent Trustees. Further, Berger and BIAM
represented to the Trust that they have no express or implied understanding,
arrangement or intention to impose an "unfair burden" on the Fund and have
agreed to use their respective best efforts to assure compliance with Section
15(f).
==============================================================================
MEETING AND VOTING INFORMATION
==============================================================================
TWO-TIER FUND STRUCTURE; INDIRECT VOTE
Shares of the Fund are not offered directly to the public, but are sold
only in connection with Variable Contracts issued by Participating Insurance
Companies. As a result, the separate accounts of the Participating Insurance
Companies, rather than individual Contract Owners, are the shareholders of the
Fund entitled to vote on the Proposals.
However, each Participating Insurance Company will vote such shares in the
manner that is required by law and interpretations thereof, as amended or
changed from time to time. Under current law, a Participating Insurance Company
is required to request voting instructions from Contract Owners and must vote
Fund shares held by each of its separate accounts in proportion to the voting
instructions received. If you complete and sign the voting instruction card, the
shares attributable to your Variable Contract will be voted exactly as you
instruct. If you simply sign and return the voting instruction card, the shares
will be voted in accordance with the Trustees' recommendations. If you do not
return a voting instruction card at all, the shares will be voted in the same
proportion as shares for which instructions have been received from other
Contract Owners of your Participating Insurance Company.
VOTE NEEDED TO ADOPT PROPOSALS
Approval of each Proposal for the Fund requires the affirmative vote of a
"majority of the outstanding voting securities" of the Fund, within the meaning
of the 1940 Act. The term "majority of the outstanding voting securities" is
defined under the 1940 Act to mean (a) 67% or more of the outstanding shares
present at a meeting of shareholders of the Fund, where the holders of more than
50% of the outstanding shares are present or represented by proxy, or (b) more
than 50% of the outstanding shares of the Fund, whichever is less.
SOLICITATION OF PROXIES
Solicitation of proxies or voting instructions from Contract Owners will be
made primarily by mail, but may also be made by telephone, facsimile or personal
interview conducted by certain officers or employees of the Trust, BBOI or their
affiliates or representatives. The cost of preparing and mailing the Notice of
Special Meeting of Shareholders, the proxy, this Proxy Statement and any
additional proxy material will be borne by BBOI or its affiliates and not by the
Fund or the Trust.
A proxy solicitation firm may be engaged to solicit proxies or voting
instructions from Contract Owners. The expenses associated with engaging a proxy
solicitation firm cannot be reasonably estimated at this time. If such expenses
are incurred, they will be borne by BBOI or its affiliates. Participating
Insurance Companies may be reimbursed by BBOI or its affiliates for the
reasonable expenses in forwarding proxy materials to their Contract Owners.
If a Contract Owner wishes to participate in the meeting and any
adjournments of the meeting, the Contract Owner may submit the voting
instruction card included with this Proxy Statement or attend the meeting in
person. An
10
<PAGE> 15
executed and returned voting instruction card may nevertheless be revoked by a
Contract Owner at any time before it is voted at the meeting by sending written
notice of the revocation to the Trust or by appearing personally and giving
instructions at the meeting.
QUORUM AND VOTING
Under the Trust Instrument of the Trust, the presence in person or by proxy
of one-third of the outstanding shares of the Fund entitled to vote shall
constitute a quorum for the transaction of business at the meeting. If a quorum
is not present (in person or by proxy) at the time any session of the meeting is
called to order, the persons named as proxies on the proxy card may vote those
proxies which have been received to adjourn the meeting to a later date.
As of the Record Date, the sole shareholders of the Fund were Participating
Insurance Companies. Since Participating Insurance Companies are the legal
owners of all outstanding shares, attendance by the Participating Insurance
Companies at the meeting will constitute a quorum under the Trust's Trust
Instrument.
Whether or not a quorum is present, if sufficient votes in favor of the
Proposals or any other proposal presented at the meeting have not been received,
the persons named as proxies may propose one or more adjournments of the meeting
to permit further solicitation of proxies with respect to a proposal. All such
adjournments will require the affirmative vote of a majority of the shares
present in person or by proxy at the session of the meeting to be adjourned. A
vote may be taken on one or more proposals presented at the meeting prior to any
such adjournment if sufficient votes for its approval have been received.
In tallying shareholder votes, abstentions will be counted for purposes of
determining whether a quorum is present for purposes of convening the meeting.
As mentioned above, each of the Proposals must be approved by the Fund by (a) a
percentage of voting securities present at the meeting, or (b) a majority of the
shares issued and outstanding. Abstentions will be considered to be both present
and issued and outstanding and, as a result, will have the effect of being
counted as votes against a Proposal.
If any other proposal is presented at the meeting that must be approved by
a percentage of "shares voted" on the proposal, abstentions and broker non-votes
will not be counted as "shares voted" and therefore will have no effect on the
result of the vote.
If the accompanying form of voting instruction card is properly executed
and returned in time to be voted at the meeting, the shares covered thereby will
be voted in accordance with the instructions marked thereon by the Contract
Owner. In the event that the Contract Owner signs and returns the card, but does
not indicate a choice as to a Proposal on the card, the shares covered thereby
will be voted in accordance with the Trustees' recommendation, which is to vote
in favor of the Proposals set forth in the Notice of Special Meeting of
Shareholders, and will be voted in the discretion of the Participating Insurance
Company with regard to any other proposal presented at the meeting. In turn,
shares represented by proxies signed by the Participating Insurance Companies
will be voted similarly at the meeting by the persons named as proxies therein.
PRINCIPAL HOLDERS OF VOTING SECURITIES
As of the Record Date, the Trustees and officers of the Trust owned as a
group less than 1% of the outstanding voting securities of the Fund. [Berger to
verify after Record Date.] The following shareholders were known to the Trust to
own beneficially or of record 5% or more of the total outstanding shares of the
Fund, as of the Record Date [Berger to fill in after Record Date]:
11
<PAGE> 16
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
BERGER/BIAM IPT - INTERNATIONAL FUND
- --------------------------------------------------------------------------------------------------------------------
SHAREHOLDER PERCENTAGE
- --------------------------------------------------------------------------------------------------------------------
<S> <C>
Conseco Variable Insurance Company [___]%
11825 N. Pennsylvania St. (owned of record)
Carmel, IN 46032
- --------------------------------------------------------------------------------------------------------------------
Canada Life Insurance Company of America [____]%
330 University Avenue SP12 (owned of record)
Toronto, Ontario, Canada M5G1R8
- --------------------------------------------------------------------------------------------------------------------
BMA Variable Annuity [____]%
BMA Tower (owned of record)
P.O. Box 419458
Kansas City, MO 64141-6458
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
Any shareholder with ownership of 25% or more of the Fund's outstanding
securities may be deemed to control it. However, the Participating Insurance
Companies will exercise voting rights attributable to the shares held by them in
accordance with voting instructions received from owners of the contracts issued
by them. To this extent, the Participating Insurance Companies will not exercise
control over the Trust or the Fund by virtue of the voting rights arising from
their record ownership of Fund shares.
As of the Record Date, no Contract Owners were known to the Trust to be the
indirect beneficial owners of more than 5% of the shares of the Fund [Berger to
verify after Record Date], except that the shares owned of record by Conseco
Variable Insurance Company include shares attributable to a Variable Contract
owned by Berger, which constitute approximately 42% of the outstanding shares of
the Fund. Berger acquired its contract in order to provide the initial capital
to establish the Fund. Because the shares attributable to Berger's contract
exceed 25% of the outstanding shares of the Fund, Berger may be deemed to
control the Fund. However, Berger has advised the Trust that it intends to
instruct Conseco to vote the shares attributable to its Variable Contract in the
same proportion as shares for which instructions have been received from other
Contract Owners. To that extent, Berger will not exercise control over the vote
on the Proposals by virtue of its Variable Contract ownership.
OTHER BUSINESS
While the meeting is called to act upon any other business that may
properly come before it, at the date of this Proxy Statement the only business
which the management of the Fund intends to present or knows that others will
present are the Proposals mentioned in the Notice of Special Meeting of
Shareholders. If any other matters lawfully come before the meeting, and in all
procedural matters at the meeting, proxies which do not contain specific
restrictions to the contrary will be voted on such matters in the discretion of
the persons named as proxies therein, or their substitutes, present and acting
at the meeting.
PROPOSALS OF SHAREHOLDERS
The Fund need not hold annual shareholder meetings, except as required by
the 1940 Act, applicable state law or the Trust Instrument. Therefore, it is not
presently anticipated that the Fund will hold regular meetings of shareholders
in subsequent years. Accordingly, no anticipated date of the next meeting can be
provided nor a deadline established for the submittal of future proposals from
shareholders.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. WHETHER OR NOT YOU EXPECT TO
ATTEND THE MEETING, PLEASE SIGN THE VOTING INSTRUCTION CARD PROMPTLY AND RETURN
IT IN THE ENCLOSED ENVELOPE TO AVOID UNNECESSARY EXPENSE AND DELAY. NO POSTAGE
IS NECESSARY.
12
<PAGE> 17
BY ORDER OF THE TRUSTEES
OF THE TRUST,
Sue Vreeland
Secretary
[_____________], 2000
13
<PAGE> 18
APPENDIX A
INVESTMENT ADVISORY AGREEMENT
(BERGER LLC/BERGER INSTITUTIONAL PRODUCTS TRUST)
WITH RESPECT TO THE
BERGER IPT - INTERNATIONAL FUND
This INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this ____
day of ____________________, 2000, between BERGER LLC, a Nevada limited
liability company ("Berger"), and BERGER INSTITUTIONAL PRODUCTS TRUST, a
Delaware business trust (the "Trust"), with respect to BERGER IPT -
INTERNATIONAL FUND (the "Fund"), a series of the Trust.
RECITALS
A. The Trust is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), and has
registered its shares for public offering under the Securities Act of 1933, as
amended (the "1933 Act").
B. The Trust is authorized to create separate series of shares in the
Trust, each with its own separate investment portfolio, and has created the Fund
as one such series.
C. Berger is engaged in the business of rendering investment advisory
services and is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended (the "Advisers Act").
D. The Trust and Berger deem it mutually advantageous that Berger
should be appointed to assume responsibility for the day-to-day management of
the Fund and of the securities in the Fund in accordance with the terms and
conditions of this Agreement.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust hereby appoints Berger as investment adviser
and manager with respect to the Fund for the period and on the terms set forth
in this Agreement. Berger hereby accepts such appointment and agrees to render
the services herein set forth, for the compensation herein provided.
2. Investment Advisory Functions. In its capacity as investment adviser
to the Fund, Berger shall have the following duties and responsibilities:
-1-
<PAGE> 19
(a) To manage the investment operations of the Fund and the
composition of its investment portfolio, and to determine
without prior consultation with the Trust, what securities and
other assets of the Fund will be acquired, held, disposed of
or loaned, in conformity with the investment objective,
policies and restrictions and the other statements concerning
the Fund in the Trust's trust instrument, as amended from time
to time (the "Trust Instrument"), bylaws and registration
statements under the 1940 Act and the 1933 Act, the 1940 Act
and the Advisers Act, the rules and regulations thereunder,
and all other applicable federal and state laws and
regulations, and the provisions of the Internal Revenue Code
of 1986, as amended from time to time, applicable to the Fund
as a regulated investment company or as required to maintain
compliance with any diversification provisions applicable to
insurance company separate accounts or qualified plans
investing in the Fund;
(b) To cause its officers to attend meetings and furnish oral or
written reports, as the Trust may reasonably require, in order
to keep the Trustees and appropriate officers of the Trust
fully informed as to the condition of the investment portfolio
of the Fund, the investment decisions of Berger, and the
investment considerations which have given rise to those
decisions;
(c) To place orders for the purchase and sale of securities for
investments of the Fund and for other related transactions,
or, in the event a sub-adviser is engaged pursuant to the
authority granted in this Agreement, to supervise the purchase
and sale of securities for investments of the Fund and for
other related transactions as directed by any such
sub-adviser; to give instructions to the custodian (including
any subcustodian) of the Fund as to deliveries of securities
to and from such custodian and receipt and payments of cash
for the account of the Fund, and advise the Trust on the same
day such instructions are given; and to submit such reports
relating to the valuation of the Fund's assets and to
otherwise assist in the calculation of the net asset value of
shares of the Fund as may reasonably be requested; on behalf
of the Fund, to exercise such voting rights, subscription
rights, rights to consent to corporate action and any other
rights pertaining to the Fund's assets that may be exercised,
in accordance with any policy pertaining to the same that may
be adopted or agreed to by the Trustees of the Trust, or, in
the event that the Trust retains the right to exercise such
voting and other rights, to furnish the Trust with advice as
to the manner in which such rights should be exercised;
(d) To maintain all books and records required to be maintained by
Berger pursuant to the 1940 Act and the rules and regulations
promulgated thereunder, as the same may be amended from time
to time, with respect to transactions on behalf of the Fund,
and to furnish the Trustees with such periodic and special
reports as the Trustees reasonably may request. Berger agrees
that all records which it maintains for the Fund or the Trust
are the property of the Trust, agrees to permit the reasonable
-2-
<PAGE> 20
inspection thereof by the Trust or its designees and agrees to
preserve for the periods prescribed under the 1940 Act any
records which it maintains for the Trust and which are
required to be maintained under the 1940 Act, and further
agrees to surrender promptly to the Trust or its designees any
records which it maintains for the Trust upon request by the
Trust; and
(e) At such times as shall be reasonably requested by the
Trustees, to provide the Trustees with economic, operational
and investment data and reports, including without limitation
all information and materials reasonably requested by or
requested to be delivered to the Trustees of the Trust
pursuant to Section 15(c) of the 1940 Act, and make available
to the Trustees any economic, statistical and investment
services normally available to similar investment company
clients of Berger.
3. Further Obligations. In all matters relating to the performance of
this Agreement, Berger shall act in conformity with the Trust's Trust
Instrument, bylaws and currently effective registration statements under the
1940 Act and the 1933 Act and any amendments or supplements thereto (the
"Registration Statements") and with the written policies, procedures and
guidelines of the Fund, and written instructions and directions of the Trustees
of the Trust, and shall comply with the requirements of the 1940 Act, the
Advisers Act, the rules thereunder, and all other applicable federal and state
laws and regulations. The Trust agrees to provide Berger with copies of the
Trust's Trust Instrument, bylaws, Registration Statements, written policies,
procedures and guidelines, and written instructions and directions of the
Trustees, and any amendments or supplements to any of them at, or, if
practicable, before the time such materials become effective. Berger shall
maintain errors and omissions insurance in an amount at least equal to that
disclosed to the Trustees in connection with their approval of this Agreement.
4. Sub-Advisers. Berger may engage one or more sub-advisers in
furtherance of Berger's duties and responsibilities under this Agreement,
subject to the approval of the Trustees of the Trust and, if required by law,
the shareholders of the Fund, pursuant in each case to a written agreement with
a party that, if applicable, meets the requirements of Section 15 of the 1940
Act and the rules thereunder applicable to contracts for service as an
investment adviser of a registered investment company, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission. The
engagement of one or more sub-advisers pursuant to this provision shall not
diminish or relieve in any way the liability of Berger for any of its duties and
responsibilities under this Agreement. Berger shall appropriately oversee,
monitor and evaluate the activities of any sub-adviser engaged hereunder.
5. Obligations of Trust. The Trust shall have the following obligations
under this Agreement:
-3-
<PAGE> 21
(a) To keep Berger continuously and fully informed as to the
composition of the investment portfolio of the Fund and the
nature of all of the Fund's assets and liabilities from time
to time;
(b) To furnish Berger with a certified copy of any financial
statement or report prepared for the Fund by certified or
independent public accountants and with copies of any
financial statements or reports made to the Fund's
shareholders or to any governmental body or securities
exchange;
(c) To furnish Berger with any further materials or information
which Berger may reasonably request to enable it to perform
its function under this Agreement; and
(d) To compensate Berger for its services in accordance with the
provisions of Section 6 hereof.
6. Compensation. The Trust shall pay to Berger for its services under
this Agreement a fee, payable in United States dollars, at an annual rate of
0.85% of the first $500 million of average daily net assets of the Fund, 0.80%
of the next $500 million of average daily net assets of the Fund, and 0.75% of
any part of the average daily net assets of the Fund in excess of $1 billion.
This fee shall be computed and accrued daily and payable monthly as of the last
day of each month during which or part of which this Agreement is in effect. For
the month during which this Agreement becomes effective and the month during
which it terminates, however, there shall be an appropriate proration of the fee
payable for such month based on the number of calendar days of such month during
which this Agreement is effective.
7. Expenses.
(a) Expenses Paid by the Trust. The Trust assumes and shall pay
all expenses incidental to its operations and business not
specifically assumed or agreed to be paid by Berger hereunder
or otherwise, including, but not limited to, any compensation,
fees or reimbursements which the Trust pays to its Trustees
who are not interested persons of Berger; compensation of the
Fund's custodian, transfer agent, registrar and dividend
disbursing agent and other service providers; legal,
accounting, audit and printing expenses; administrative,
clerical, recordkeeping and bookkeeping expenses; brokerage
commissions and all other expenses in connection with
execution of portfolio transactions (including any appropriate
commissions paid to Berger or its affiliates for effecting
exchange listed, over-the-counter or other securities
transactions); interest; all federal, state and local taxes
(including stamp, excise, income and franchise taxes); costs
of stock certificates and expenses of delivering such
certificates to the purchasers thereof; expenses of local
representation in Delaware; expenses of shareholders' meetings
and of preparing, printing and distributing proxy statements,
notices, and reports to shareholders; expenses of preparing
and filing reports and tax returns with federal and state
regulatory authorities; all expenses incurred in complying
with all federal and state laws and the laws of any foreign
country applicable to the issue, offer or sale of shares of
the Fund, including, but not
-4-
<PAGE> 22
limited to, all costs involved in preparing, printing and
mailing prospectuses and statements of additional information
to shareholders of the Fund; and all fees, dues and other
expenses incurred by the Trust in connection with the
membership of the Trust in any trade association or other
investment company organization. To the extent that Berger
shall perform any of the above described administrative and
clerical functions, including transfer agency, registry,
dividend disbursing, recordkeeping, bookkeeping, accounting
and blue sky monitoring and registration functions, and the
preparation of reports and returns, the Trust shall pay to
Berger compensation for, or reimburse Berger for its expenses
incurred in connection with, such services as Berger and the
Trust shall agree from time to time, any other provision of
this Agreement notwithstanding.
(b) Expenses Paid by Berger. Berger shall pay all its own costs
and expenses incurred in fulfilling its obligations under this
Agreement. In addition to such costs and expenses, Berger
shall incur and pay the following expenses relating to the
Fund's operations:
(i) Reasonable compensation, fees and related expenses of the
Trust's officers and Trustees, except for such Trustees who are not interested
persons of Berger;
(ii) Rental of offices of the Trust; and
(iii) Fees of any sub-adviser engaged by Berger pursuant to
the authority granted in Section 4 hereof.
8. Brokerage Commissions. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from the Trust to the contrary, Berger is
authorized and directed to place portfolio transactions for the Fund only with
brokers and dealers who render satisfactory service in the execution of orders
at the most favorable prices and at reasonable commission rates, provided,
however, that Berger may pay a broker an amount of commission for effecting a
securities transaction in excess of the amount of commission another broker
would have charged for effecting that transaction if Berger determines in good
faith that such amount of commission was reasonable in relation to the value of
the brokerage and research services provided by such broker viewed in terms of
either that particular transaction or the overall responsibilities of Berger.
Berger is also authorized to consider sales of variable insurance contracts that
permit allocation of contract values to the Fund as a factor in selecting
broker-dealers to execute portfolio transactions for the Fund. In placing
portfolio business with such broker-dealers, Berger shall seek the best
execution of each transaction. Subject to the terms of this Agreement and the
applicable requirements and provisions of the law, including the 1940 Act and
the Securities Exchange Act of 1934, as amended, and in the event that Berger or
an affiliate is registered as a broker-dealer, Berger may select a broker with
which it or any of its affiliates or the Fund is affiliated. Berger or such
affiliated broker may effect or execute Fund securities transactions, whether on
a securities exchange or in the over-the-counter market, and receive separate
compensation from the Fund therefor. Notwithstanding the foregoing, the Trust
shall retain the right
-5-
<PAGE> 23
to direct the placement of all portfolio transactions, and the Trustees of the
Trust may establish policies or guidelines to be followed by Berger in placing
portfolio transactions for the Trust pursuant to the foregoing provisions.
Berger shall report on the placement of portfolio transactions in the prior
fiscal quarter at each quarterly meeting of such Trustees. To the extent
consistent with applicable law, purchase or sell orders for the Fund may be
aggregated with simultaneous purchase or sell orders for other clients of
Berger. Whenever Berger simultaneously places orders to purchase or sell the
same security on behalf of the Fund and one or more other clients of Berger,
such orders will be allocated as to price and amount among all such clients in a
manner reasonably believed by Berger to be fair and equitable to each client.
The Trust recognizes that in some cases, this procedure may adversely affect the
results obtained for the Fund.
9. Termination. This Agreement may be terminated at any time, without
penalty, by the Trustees of the Trust, or by the shareholders of the Fund acting
by vote of at least a majority of its outstanding voting securities, provided in
either case that sixty (60) days' advance written notice of termination be given
to Berger at its principal place of business. This Agreement may be terminated
by Berger at any time, without penalty, by giving sixty (60) days' advance
written notice of termination to the Trust, addressed to its principal place of
business. The Trust agrees that, consistent with the terms of the Trust's Trust
Instrument, the Trust shall cease to use the name "Berger" in connection with
the Fund as soon as reasonably practicable following any termination of this
Agreement if Berger does not continue to provide investment advice to the Fund
after such termination.
10. Assignment. This Agreement shall terminate automatically in the
event of any assignment of this Agreement.
11. Term. This Agreement shall continue in effect until April 30, 2002,
unless sooner terminated in accordance with its terms, and shall continue in
effect from year to year thereafter only so long as such continuance is
specifically approved at least annually by the vote of a majority of the
Trustees of the Trust who are not parties hereto or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on the
approval of the terms of such renewal, and by either the Trustees of the Trust
or the affirmative vote of a majority of the outstanding voting securities of
the Fund.
12. Amendments. This Agreement may be amended by the parties only if
such amendment is specifically approved (i) by a majority of the Trustees,
including a majority of the Trustees who are not interested persons of the Fund
or Berger and, (ii) if required by applicable law, by the affirmative vote of a
majority of the outstanding voting securities of the Fund.
13. Allocation of Expenses. The Trustees shall determine the basis for
making an appropriate allocation of the Trust's expenses (other than those
directly attributable to the Fund) between the Fund and any other series of the
Trust and between the Fund and other investment companies managed by Berger or
its affiliates.
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<PAGE> 24
14. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN that the
Trust is a business trust organized under the Delaware Business Trust Act
pursuant to a Certificate of Trust filed in the office of the Secretary of State
of the State of Delaware. All parties to this Agreement acknowledge and agree
that the Trust is a series trust and all debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular series shall be enforceable against the assets held with respect to
such series only, and not against the assets of the Trust generally or against
the assets held with respect to any other series and further that no Trustee,
officer or holder of shares of beneficial interest of the Trust shall be
personally liable for any of the foregoing.
15. Limitation of Liability of Berger. Berger shall not be liable for
any error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission taken with respect to the Fund, except for
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder and except to the extent otherwise provided by law. As used in this
section, "Berger" shall include any affiliate of Berger performing services for
the Trust contemplated hereunder and managers, officers and employees of Berger
and such affiliates.
16. Activities of Berger. The services of Berger to the Trust hereunder
are not to be deemed to be exclusive, and Berger and its affiliates are free to
render services to other parties, so long as its services under this Agreement
are not materially adversely affected or otherwise impaired thereby. Nothing in
this Agreement shall limit or restrict the right of any manager, officer or
employee of Berger to engage in any other business or to devote his or her time
and attention in part to the management or other aspects of any other business,
whether of a similar nature or a dissimilar nature. It is understood that
Trustees, officers and shareholders of the Trust are or may become interested in
Berger as managers, officers and shareholders of Berger, that managers,
officers, employees and shareholders of Berger are or may become similarly
interested in the Trust, and that Berger may become interested in the Trust as a
shareholder or otherwise.
17. Certain Definitions. The terms "vote of a majority of the
outstanding voting securities," "assignment," "approved at least annually" and
"interested persons" when used herein, shall have the respective meanings
specified in the 1940 Act, as now in effect or hereafter amended, and the rules
and regulations thereunder, subject to such orders, exemptions and
interpretations as may be issued by the Securities and Exchange Commission under
said Act and as may be then in effect. Where the effect of a requirement of the
federal securities laws reflected in any provision of this Agreement is made
less restrictive by a rule, regulation, order, interpretation or other authority
of the Securities and Exchange Commission, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation, order, interpretation or other authority.
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<PAGE> 25
18. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Colorado (without giving effect to the conflicts of
laws principles thereof) and the 1940 Act. To the extent that the applicable
laws of the State of Colorado conflict with the applicable provisions of the
1940 Act, the latter shall control.
19. Miscellaneous. The headings in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions thereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Investment Advisory Agreement as of the date and year
first above written.
BERGER LLC
By:
----------------------------------------
Jack R. Thompson
President
BERGER INSTITUTIONAL PRODUCTS TRUST, with
respect to the series known as the Berger IPT -
International Fund
By:
----------------------------------------
Jack R. Thompson
President
<PAGE> 26
APPENDIX B
SUB-ADVISORY AGREEMENT
(BERGER LLC/BANK OF IRELAND
ASSET MANAGEMENT (U.S.) LIMITED
WITH RESPECT TO THE
BERGER IPT - INTERNATIONAL FUND
Agreement made as of this __ day of ____________, 2000, between Berger
LLC ("Berger"), a Nevada limited liability company, and Bank of Ireland Asset
Management (U.S.) Limited ("BIAM"), a limited company incorporated in Ireland.
WHEREAS, Berger has entered into an Investment Advisory Agreement (the
"Advisory Agreement") with Berger Institutional Products Trust (the "Trust"), a
Delaware business trust and an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), with
respect to Berger IPT - International Fund (the "Fund"), a separate series of
the Trust;
WHEREAS, BIAM is engaged in the business of rendering investment
advisory services and is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"); and
WHEREAS, Berger, with the approval of the Trust, desires to delegate to
BIAM its duties and responsibilities for providing investment advisory services
to the Fund, and BIAM is willing to accept such delegation and to render such
investment advisory services.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged the parties agree as follows:
1. Duties of BIAM. Berger hereby engages the services of BIAM as
sub-adviser for the Fund in furtherance of the Advisory Agreement. BIAM agrees
to perform the following
<PAGE> 27
duties, subject to the oversight of Berger and to the overall control of the
officers and the Trustees of the Trust:
(a) BIAM shall manage the investment operations of the Fund
and the composition of its investment portfolio, and determine without
prior consultation with Berger or the Trust, what securities and other
assets of the Fund will be acquired, held, disposed of or loaned in
conformity with the investment objective, policies and restrictions and
the other statements concerning the Fund in the Trust's trust
instrument, as amended from time to time (the "Trust Instrument"), the
Trust's bylaws ("Bylaws") and the Trust's registration statements under
the 1940 Act and the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act and the Advisers Act, the rules and regulations
thereunder, and all other applicable federal and state laws and
regulations, and the provisions of the Internal Revenue Code of 1986,
as amended, applicable to the Fund as a regulated investment company;
(b) BIAM shall cause its officers to attend meetings and
furnish oral or written reports, as the Trust or Berger may reasonably
require, in order to keep Berger, the Trustees and appropriate officers
of the Trust fully informed as to the condition of the investment
portfolio of the Fund, the investment decisions of BIAM, and the
investment considerations which have given rise to those decisions;
(c) BIAM shall maintain all books and records required to be
maintained by BIAM pursuant to the 1940 Act, the Advisers Act, and the
rules and regulations promulgated thereunder, as the same may be
amended from time to time, with respect to transactions on behalf of
the Fund, and shall furnish the Trustees and Berger with such periodic
and special reports as the Trustees or Berger reasonably may request.
BIAM
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<PAGE> 28
hereby agrees that all records which it maintains for the Fund or the
Trust are the property of the Trust, agrees to permit the reasonable
inspection thereof by the Trust or its designees and agrees to preserve
for the periods prescribed under the 1940 Act and the Advisers Act any
records which it maintains for the Trust and which are required to be
maintained under the 1940 Act and the Advisers Act, and further agrees
to surrender promptly to the Trust or its designees any records which
it maintains for the Trust upon request by the Trust;
(d) BIAM shall place orders for the purchase and sale of
securities for investments of the Fund and for other related
transactions; to give instructions to the custodian (including any
subcustodian) of the Fund as to deliveries of securities to and from
such custodian and receipt and payments of cash for the account of the
Fund, and advise the Trust on the same day such instructions are given;
(e) BIAM will provide Berger and the Trust with the current
reports that show holdings, current prices, income details and
month-end valuations, and shall communicate with the custodian and
Berger on valuation issues concerning the Fund's securities;
(f) BIAM shall, on behalf of the Fund, exercise such voting
rights, subscription rights, rights to consent to corporate action and
any other rights pertaining to the Fund's assets that may be exercised,
in accordance with any policy pertaining to the same that may be
adopted or agreed to by the Trustees of the Trust, or, in the event
that the Trust retains the right to exercise such voting and other
rights, to furnish the Trust with advice as may be reasonably requested
as to the manner in which such rights should be exercised;
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<PAGE> 29
(g) At such times as shall be reasonably requested by the
Trustees or Berger, BIAM shall provide the Trustees and Berger with
economic, operational and investment data and reports, including
without limitation all information and materials reasonably requested
by or requested to be delivered to the Trustees of the Trust pursuant
to Section 15(c) of the 1940 Act, and shall make available to the
Trustees and Berger any economic, statistical and investment services
normally available to similar investment company clients of BIAM; and
(h) BIAM will provide to Berger for regulatory filings and
other appropriate uses pertaining to the activities of BIAM relating to
the Fund or the Trust materially accurate and complete information
relating to BIAM as may reasonably be requested by Berger from time to
time.
2. Further Obligations. In all matters relating to the performance of
this Agreement, BIAM shall act in conformity with the Trust Instrument, Bylaws
and currently effective registration statement under the 1940 Act and the 1933
Act and any amendments or supplements thereto (the "Registration Statements")
and with the written policies, procedures and guidelines of the Fund, written
instructions and directions of the Trustees based on resolutions duly adopted by
the Trustees, and written instructions and directions of Berger, officers of the
Trust, as may be communicated to it by Berger and shall comply with the
requirements of the 1940 Act, the Advisers Act, the rules thereunder, and all
other applicable federal and state laws and regulations. Berger agrees to
provide to BIAM copies of the Trust Instrument, Bylaws, Registration Statement,
written policies, procedures, and guidelines, written instructions of the
Trustees based on resolutions duly adopted by the Trustees, and written
instructions from Berger, officers of the Trust, and any amendments or
supplements to any of them at, or, if practicable,
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<PAGE> 30
before the time such materials become adopted. BIAM shall not be required to
follow any amendments or supplements to any such policies, procedures,
guidelines or written instructions until BIAM has received such amendment or
supplement in writing. BIAM may perform its services through any qualified
employee, officer or agent of BIAM, and Berger and the Trust shall not be
entitled to the efforts, advice, recommendations or judgment of any specific
person.
3. Obligations of Berger. Berger shall have the following obligations
under this Agreement:
(a) To keep BIAM continuously and fully informed (or cause the
custodian of the Fund's assets to keep BIAM so informed) as to the
composition of the investment portfolio of the Fund, cash requirements
and cash available for investment in the Fund and the nature of all of
the Fund's assets and liabilities;
(b) To furnish BIAM with a certified copy of any financial
statement or report prepared for the Fund by certified or independent
public accountants and with copies of any financial statements or
reports made to the Fund's investors or to any governmental body or
securities exchange;
(c) To furnish BIAM with any further materials or information
which BIAM may reasonably request to enable it to perform its function
under this Agreement;
(d) To compensate BIAM for its services in accordance with the
provisions of Section 4 hereof.
4. Compensation. Berger shall pay to BIAM for its services under this
Agreement a fee, payable in United States dollars, in accordance with the
Schedule in Exhibit A hereto. This fee shall be computed and accrued daily and
payable monthly on the last day of each month
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<PAGE> 31
during which or part of which this Agreement is in effect. BIAM reserves the
right to waive or reimburse all or any portion of its fees hereunder.
5. Expenses and Excluded Expenses. BIAM shall pay all its own costs and
expenses incurred in rendering the services required under this Agreement.
6. Brokerage Commissions. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from Berger or the Trust to the contrary,
BIAM shall place all orders for the purchase and sale of securities for the Fund
with brokers and dealers selected by BIAM in the exercise of its fiduciary duty
to obtain best execution. BIAM is authorized and directed to place portfolio
transactions for the Fund only with brokers and dealers who BIAM believes will
render satisfactory service in the execution of orders at the best overall terms
available; provided, however, that BIAM may pay a broker an amount of commission
for effecting a securities transaction in excess of the amount of commission
another broker would have charged for effecting that transaction if BIAM
determines in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research services provided by such
broker viewed in terms of either that particular transaction or the overall
responsibilities of BIAM. BIAM is also authorized, consistent with the
requirements of NASD Conduct Rule 2830(k), to consider sales of variable
insurance contracts that permit allocation of contract values to the Fund as a
factor in selecting broker-dealers to execute portfolio transactions for the
Fund. In placing portfolio business with such broker-dealers, BIAM shall seek
the best execution of each transaction. Subject to the terms of this Agreement
and the applicable requirements and provisions of the law, including the 1940
Act and the Securities Exchange Act of 1934, as amended, and in the event that
BIAM or
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<PAGE> 32
an affiliate is registered as a broker-dealer, BIAM may select a broker with
which it or any of its affiliates or the Fund is affiliated. BIAM or such
affiliated broker may effect or execute Fund securities transactions on an
agency basis, whether on a securities exchange or in the over-the-counter
market, and receive compensation from the Fund therefor.
Notwithstanding the foregoing, the Trust shall retain the right to
direct the placement of all portfolio transactions, and Berger or the Trustees
may establish policies or guidelines to be followed by BIAM in placing portfolio
transactions for the Fund pursuant to the foregoing provisions. BIAM shall
report on the placement of portfolio transactions in the prior fiscal quarter at
each quarterly meeting of the Trustees. To the extent consistent with applicable
law, purchase or sell orders for the Fund may be aggregated with simultaneous
purchase or sell orders for other clients of BIAM. Whenever BIAM simultaneously
places orders to purchase or sell the same security on behalf of the Fund and
one or more other clients of BIAM, such orders will be allocated as to price and
amount among all such clients in a manner reasonably believed by BIAM to be fair
and equitable to each client. Berger and the Trust recognize that, in some
cases, this procedure may adversely affect the results obtained for the Fund.
7. Representations of BIAM. BIAM hereby represents, warrants and
covenants to Berger as follows:
(a) BIAM: (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or
the Advisers Act from performing the services contemplated by this
Agreement; (iii) has met in all material respects, and will continue to
meet in all material respects for so long as this Agreement remains in
effect, any other applicable federal or state requirements, or the
applicable requirements of any regulatory
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<PAGE> 33
or industry self-regulatory organization necessary to be met in order
to perform the services contemplated by this Agreement; (iv) has the
legal and corporate authority to enter into and perform the services
contemplated by this Agreement; and (v) will immediately notify Berger
of the occurrence of any event that would disqualify BIAM from serving
as an investment adviser of an investment company pursuant to Section
9(a) of the 1940 Act or otherwise, and of the institution of any
administrative, regulatory or judicial proceeding against BIAM that
could have a material adverse effect upon BIAM's ability to fulfill its
obligations under this Agreement.
(b) BIAM has adopted a written code of ethics complying with
the requirements of Rule 17j-1 under the 1940 Act and will provide
Berger with a copy of such code of ethics, together with evidence of
its adoption. Within 45 days after the end of the last calendar quarter
of each year that this Agreement is in effect, the president or a vice
president of BIAM shall certify to Berger that BIAM has complied with
the requirements of Rule 17j-1 during the previous year and that there
has been no violation of BIAM's code of ethics or, if such a violation
has occurred, that appropriate action was taken in response to such
violation. Upon the written request of Berger, BIAM shall permit
Berger, its employees or its agents to examine the reports required to
be made to BIAM by Rule 17j-1.
(c) BIAM has provided Berger with a copy of its Form ADV as
most recently filed with the U.S. Securities and Exchange Commission
("SEC") and will, promptly after filing any material amendment to its
Form ADV with the SEC, furnish a copy of such amendment to Berger.
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<PAGE> 34
(d) BIAM will notify Berger of any change in the identity or
control of its shareholders owning a 10% or greater interest in BIAM,
or any change that would constitute a change in control of BIAM under
the 1940 Act, prior to any such change if BIAM is aware, or should be
aware, of any such change, but in either event as soon as any such
change becomes known to BIAM, so long as such prior notification would
not violate applicable law. In such event, BIAM shall notify Berger
upon the occurrence of such change of control.
8. Representations of Berger. Berger hereby represents, warrants and
covenants to BIAM as follows:
(a) Berger: (i) is registered as an investment adviser under
the Advisers Act and will continue to be so registered for so long as
this Agreement remains in effect; (ii) is not prohibited by the 1940
Act or the Advisers Act from fulfilling its obligations under this
Agreement; (iii) has met in all material respects, and will continue to
meet in all material respects for so long as this Agreement remains in
effect, any other applicable federal or state requirements, or the
applicable requirements of any regulatory or industry self-regulatory
organization necessary to be met in order to fulfill its obligations
under this Agreement; (iv) has the legal and corporate authority to
enter into and perform this Agreement; and (v) will immediately notify
BIAM of the occurrence of any event that would disqualify Berger from
serving as an investment adviser of an investment company pursuant to
Section 9(a) of the 1940 Act or otherwise, and of the institution of
any administrative, regulatory or judicial proceeding against Berger
that could have a material adverse effect upon Berger' ability to
fulfill its obligations under this Agreement.
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<PAGE> 35
(b) Berger has adopted a written code of ethics complying with
the requirements of Rule 17j-1 under the 1940 Act and will provide BIAM
with a copy of such code of ethics, together with evidence of its
adoption.
(c) Berger has provided BIAM with a copy of its Form ADV as
most recently filed with the U.S. Securities and Exchange Commission
("SEC") and will, promptly after filing any material amendment to its
Form ADV with the SEC, furnish a copy of such amendment to BIAM.
(d) Berger will notify BIAM of any change in the identity or
control of its shareholders owning a 10% or greater interest in Berger,
or any change that would constitute a change in control of Berger under
the 1940 Act, prior to any such change if Berger is aware, or should be
aware, of any such change, but in either event as soon as any such
change becomes known to Berger, so long as such prior notification
would not violate applicable law. In such event, Berger shall notify
BIAM upon the occurrence of such change of control.
9. Term. This Agreement shall become effective as of the date first set
forth above and shall continue in effect until the date before the second
anniversary of this Agreement, unless sooner terminated in accordance with its
terms, and shall continue in effect from year to year thereafter only so long as
such continuance is specifically approved at least annually by the vote of a
majority of the Trustees who are not parties hereto or interested persons of the
Trust or Berger, cast in person at a meeting called for the purpose of voting on
the approval of the terms of such renewal, and by either the Trustees or the
affirmative vote of a majority of the outstanding voting securities of the Fund.
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<PAGE> 36
10. Termination. This Agreement may be terminated: (i) at any time,
without penalty, by the Trustees, or by the holders of interests in the Fund
acting by vote of at least a majority of its outstanding voting securities,
provided in any such case that 60 days' advance written notice of termination be
given to BIAM at its principal place of business; (ii) at any time, without
penalty, by the Trust if BIAM becomes unable to discharge its duties and
obligations under this Agreement; (iii) by BIAM or Berger upon a material breach
by the other party hereto of any of the covenants in Section 8 of that certain
Amendment to Operating Agreement, Liquidation and Dissolution Agreement dated
January 19, 2000 by and between BBOI Worldwide LLC, Berger and BIAM, if such
breach shall not have been cured within a 30 day period after notice of such
breach; (iv) by BIAM or Berger upon a material breach by the other party hereto
of any of the terms of this Agreement, if such breach shall not have been cured
within a 30 day period after notice of such breach; or (v) by BIAM or Berger at
any time after the expiration of five (5) years from the date of this Agreement,
without penalty, by giving 60 days' advance written notice of termination to the
other party hereto and to the Trust.
11. Assignment and Amendments. This Agreement shall automatically
terminate in the event of its assignment. This Agreement may be amended by the
parties only in a written instrument signed by all parties to this Agreement and
only if such amendment is specifically approved (i) by a majority of the
Trustees, including a majority of the Trustees who are not interested persons of
the Trust, Berger or its affiliates, and (ii) if required by applicable law, by
the affirmative vote of a majority of the outstanding voting securities in the
Fund. Notwithstanding the foregoing, the Registration Statement and the written
policies, procedures and guidelines, and written instructions form the Trustees
based on resolutions duly adopted by the Trustees referred to in Section 2
hereof may be amended by the Trust or the Trustees from time to time; provided,
however, that BIAM shall not be obligated to follow any such amendment until
BIAM has received such amendment in writing from the Trust, the Trustees or from
Berger.
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<PAGE> 37
12. Limitation of Liability of BIAM. BIAM shall not be liable for any
error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission taken with respect to the Fund, except for
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder and except to the extent otherwise provided by law. BIAM shall be
entitled to rely upon any written instructions from the Trustees of the Trust
based on resolutions duly adopted by the Trustees, and shall incur no liability
to Berger, the Trust or the Fund, or any officers thereof, in acting upon such
written instructions. In addition, BIAM shall be entitled to rely upon any
written instructions from Berger, or officers of the Trust, and shall incur no
liability to Berger in acting upon such written instructions. As used in this
section, "BIAM" shall include any affiliate of BIAM performing services for the
Fund contemplated hereunder and managers, directors, officers and employees of
BIAM and such affiliates.
13. Limitation of Liability of Berger. Berger shall not be liable to
BIAM for any error of judgment or mistake of law or for any loss arising out of
any investment or for any act or omission taken with respect to the Fund, except
for willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder and except to the extent otherwise provided by law. Berger shall be
entitled to rely upon any written instructions from the Trustees of the Trust
based on resolutions duly adopted by the Trustees, and shall incur no liability
to BIAM, or any officers thereof, in acting upon such written instructions. In
addition, Berger shall be entitled to rely upon any written instructions from
BIAM, or officers of the Trust, and shall incur no liability to BIAM in
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<PAGE> 38
acting upon such written instructions. As used in this section, "Berger" shall
include any affiliate of Berger performing services for the Fund contemplated
hereunder and managers, directors, officers and employees of Berger and such
affiliates.
14. Indemnification. Berger hereby indemnifies and holds harmless BIAM
and its officers, directors, shareholders, employees and agents, and any
controlling person thereof, from all losses, charges, claims and liabilities,
and all costs and expenses, including without limitation reasonable attorneys'
fees and disbursements, arising from any action which BIAM takes or omits to
take pursuant to written instructions from Berger, or from officers or Trustees
of the Trust, provided that no person shall be indemnified hereunder against any
liability to the Trust or its shareholders (or any expenses incident to such
liability) arising out of such person's own willful misfeasance, bad faith or
gross negligence in the performance of their duties or by reason of their
reckless disregard of their duties or obligations under this Agreement.
BIAM hereby indemnifies and holds harmless Berger and the Trust, and
each of their Trustees, officers, managers, shareholders, members, employees and
agents, and any controlling person thereof, from all losses, charges, claims and
liabilities, and all costs and expenses, including without limitation reasonable
attorneys' fees and disbursements, arising out of BIAM's willful misfeasance,
bad faith or gross negligence in the performance of its duties or by reason of
its reckless disregard of its duties or obligations under this Agreement,
provided that no person shall be indemnified hereunder against any liability to
the Trust or its shareholders (or any expenses incident to such liability)
arising out of such person's own willful misfeasance, bad faith or gross
negligence in the performance of their duties or by reason of their reckless
disregard of their duties or obligations under this Agreement.
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<PAGE> 39
15. Activities of BIAM. The investment advisory services provided by
BIAM hereunder are not exclusive, and BIAM is free to render similar services to
others so long as its services under this Agreement are not materially adversely
affected or otherwise materially impaired thereby. Nothing in this Agreement
shall limit or restrict the right of any director, officer, or employee of BIAM
to engage in any other business or to devote his or her time and attention in
part to the management or other aspects of any business, whether of a similar
nature or a dissimilar nature.
16. Independent Contractor. BIAM shall for all purposes hereunder be
deemed to be an independent contractor and shall, unless otherwise provided or
authorized, have no authority to act for or represent Berger, the Fund or the
Trust in any way, nor otherwise be deemed an agent of, partner or joint venturer
with, Berger, the Fund or the Trust.
17. Third Party Beneficiary. The parties expressly acknowledge and
agree that the Trust is a third party beneficiary of this Agreement and that the
Trust shall have the full right to sue upon and enforce this Agreement in
accordance with its terms as if it were a signatory hereto.
18. Notices. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered or mailed by
certified or registered mail, return receipt requested and postage prepaid:
(a) To Berger at:
Berger LLC
210 University Boulevard
Suite 900
Denver, Colorado 80206
Attention: Anthony R. Bosch, Esq.
Phone: (303) 336-4568
Fax: (303) 329-8719
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<PAGE> 40
with a copy to:
Sonnenschein Nath & Rosenthal
4520 Main Street
Kansas City, MO 64111
Attention: Kevin J. Murphy, Esq.
Phone: (816) 932-4400
Fax: (816) 531-7545
(b) To BIAM at:
Bank of Ireland Asset Management
(U.S.) Limited
26 Fitzwilliam Place
Dublin 2, Ireland
Attention: William R. Cotter
Phone: 011 353 1 661 6433
Fax: 011 353 1 678 5342
with a copy to:
Bank of Ireland Asset Management
(U.S.) Limited
Two Greenwich Plaza
Greenwich, Connecticut 06830
Attention: Denis Curran
Phone: (203) 869-0111
Fax: (203) 869-0268
and
Morgan Lewis & Bockius LLP
1800 M. Street, N.W.
Washington, D.C. 20036
Attention: Stephanie M. Monaco, Esq.
Phone: (202) 467-7000
Fax: (202) 467-7176
(c) To the Trust at:
Berger Institutional Products Trust
210 University Boulevard
Suite 900
Denver, Colorado 80206
Attention: Jack R. Thompson, President
Phone: (303) 329-0200
Fax: (303) 394-4397
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<PAGE> 41
with a copy to:
Davis, Graham & Stubbs LLP
370 Seventeenth Street
Suite 4700
Denver, Colorado 80202
Attention: Lester R. Woodward
Phone: (303) 892-9400
Fax: (303) 892-7400
19. Certain Definitions. As used in this Agreement, the terms "vote of
a majority of the outstanding voting securities," "assignment," "approved at
least annually," and "interested persons" shall have the same meanings as when
used in the 1940 Act (in each case as the 1940 Act is now in effect or hereafter
may be amended) and the rules and regulations thereunder, subject to such
orders, exemptions and interpretations as may be issued by the Securities and
Exchange Commission (the "SEC") under the 1940 Act and as may be then in effect.
Where the effect of a requirement of the federal securities laws reflected in
any provision of this Agreement is made less restrictive by a rule, regulation,
order, interpretation or other authority of the SEC, whether of special or
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation, order, interpretation or other authority.
20. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware (without giving effect to the conflicts of
laws principles thereof) and the 1940 Act. To the extent that the applicable
laws of the State of Delaware conflict with the applicable provisions of the
1940 Act, the latter shall control.
21. Miscellaneous. This Agreement may be executed in two or more
counterparts, which taken together shall constitute one and the same instrument.
The headings in this Agreement are included for convenience of reference only
and in no way define or limit any of the provisions thereof or otherwise affect
their construction or effect. If any provision of this
-16-
<PAGE> 42
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors.
22. Form ADV. Berger hereby acknowledges receipt of the Form ADV, Part
II which BIAM represents is the most recent version of such form which BIAM has
filed with the SEC. BIAM will, promptly after filing any amendment to its Form
ADV with the SEC, furnish a copy of such amendment to Berger and to the Trust.
-17-
<PAGE> 43
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
BERGER LLC
By:
-------------------------------------
Name:
Title: Authorized Signatory
BANK OF IRELAND ASSET
MANAGEMENT (U.S.) LIMITED
By:
-------------------------------------
Name:
Title: Authorized Signatory
By:
-------------------------------------
Name:
Title: Authorized Signatory
<PAGE> 44
Exhibit A
Sub-Advisory fee payable to BIAM
<TABLE>
<CAPTION>
Average daily net asset value of the Fund. Fee
========================================== ===
<S> <C> <C>
First $ 50m 45 bps
Next $ 50m 40 bps
Excess $100m 30 bps
</TABLE>
<PAGE> 45
PROXY CARD (FOR PARTICIPATING INSURANCE COMPANIES)
BERGER/BIAM IPT - INTERNATIONAL FUND
(AS SERIES OF BERGER INSTITUTIONAL PRODUCTS TRUST)
PROXY FOR SPECIAL MEETING OF SHAREHOLDERS TO BE HELD MAY 5, 2000
The undersigned shareholder of the BERGER/BIAM IPT - INTERNATIONAL FUND
(the Fund), a series of Berger Institutional Products Trust (the Trust), a
Delaware business trust, hereby appoints Jack R. Thompson, Janice M. Teague,
Anthony R. Bosch and Sue Vreeland, or any one or more of them, with full power
of substitution and revocation, the true and lawful proxies to represent the
undersigned and to vote on behalf of the undersigned all shares of the Fund
which the undersigned is entitled to vote at the Special Meeting of Shareholders
of the Fund to be held on May 5, 2000, at the offices of the Fund, 210
University Blvd., Suite 900, Denver, Colorado, at 11:00 a.m., Mountain time, and
at any adjournments thereof. The undersigned authorizes and instructs the
proxies to vote as indicated below.
THIS PROXY IS SOLICITED ON BEHALF OF THE TRUSTEES OF THE TRUST. The proxies
named will vote the shares represented by this Proxy in accordance with the
choice made on this card. IF NO CHOICE IS INDICATED FOR ANY MATTER, THIS PROXY
WILL BE VOTED FOR THE MATTERS PRESENTED.
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
1. To approve a new Investment Advisory Agreement for the Fund with Berger
LLC, as adviser.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
________________SHARES ________________SHARES ________________SHARES
2. To approve a new Sub-Advisory Agreement for the Fund between Berger LLC and
Bank of Ireland Asset Management (U.S.) Limited, as investment sub-adviser.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
________________SHARES ________________SHARES ________________SHARES
<PAGE> 46
3. IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER
BUSINESS AS MAY PROPERLY COME BEFORE THE SPECIAL MEETING.
Please sign, date and return this proxy in the envelope provided.
Dated: ______________, 2000 -----------------------------------------
Signature
-----------------------------------------
Title (If applicable)
VOTING INSTRUCTIONS CARD
THESE VOTING INSTRUCTIONS ARE SOLICITED BY _____________________ INSURANCE
COMPANY IN CONNECTION WITH A SOLICITATION OF PROXIES BY THE TRUSTEES OF BERGER
INSTITUTIONAL PRODUCTS TRUST.
The undersigned hereby instructs _________________ Insurance Company to
vote shares of the BERGER/BIAM IPT - INTERNATIONAL FUND (the Fund), a series of
Berger Institutional Products Trust (the Trust), a Delaware business trust,
attributable to the undersigned's variable annuity or variable life insurance
contract at the Special Meeting of Shareholders of the Fund to be held on May 5,
2000, at the offices of the Fund, 210 University Blvd., Suite 900, Denver,
Colorado, at 11:00 a.m., Mountain time, and at any adjournments thereof, as
indicated below.
PLEASE SIGN BELOW
Note: If a contract is held jointly, each contract owner should sign. If only
one contract owner signs, his or her signature will be binding. If the contract
owner is a corporation, the President or Vice President should sign in his or
her own name, indicating title. If the contract owner is a partnership, a
partner should sign in his or her own name, indicating that he or she is a
"Partner." If the contract owner is a trust, the trustee should sign in his or
her own name, indicating that he or she is a "Trustee."
Dated: ______________, 2000 -----------------------------------------
Signature
-----------------------------------------
Title (If applicable)
-----------------------------------------
Signature (If held jointly)
----------------------------------------
Title (If applicable)
THESE VOTING INSTRUCTIONS, IF PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER
DIRECTED BY THE CONTRACT OWNER. IF THESE VOTING INSTRUCTIONS ARE EXECUTED AND NO
DIRECTION IS MADE, THESE VOTING INSTRUCTIONS WILL BE VOTED FOR BOTH PROPOSALS
AND IN THE DISCRETION OF THE INSURANCE COMPANY UPON SUCH OTHER BUSINESS AS MAY
PROPERLY COME BEFORE THE MEETING.
THE TRUSTEES UNANIMOUSLY RECOMMEND THAT YOU VOTE IN FAVOR OF PROPOSALS 1 AND 2.
<PAGE> 47
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
1. To approve a new Investment Advisory Agreement for the Fund with Berger
LLC, as adviser.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
2. To approve a new Sub-Advisory Agreement for the Fund between Berger LLC and
Bank of Ireland Asset Management (U.S.) Limited, as investment sub-adviser.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
3. IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER
BUSINESS AS MAY PROPERLY COME BEFORE THE SPECIAL MEETING.
PLEASE SIGN, DATE AND RETURN THE VOTING INSTRUCTION FORM IN THE ENCLOSED
POSTAGE-PAID ENVELOPE. VOTING INSTRUCTIONS MUST BE RECEIVED BY _________ TO BE
VOTED FOR THE MEETING TO BE HELD ON MAY 5, 2000.
