As filed with the Securities and Exchange Commission on December 22, 1999
Securities Act Registration No. 333-21089
Investment Company Act Registration No. 811-08043
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [ ]
Pre-Effective Amendment No. __ [ ]
Post-Effective Amendment No. 5 [X]
and
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 [X]
Amendment No. 6
(Check appropriate box or boxes)
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THE BERKSHIRE FUNDS
(Formerly Berkshire Capital Investment Trust)
(Exact Name of Registrant as Specified in Charter)
475 Milan Drive, Suite #103
San Jose, CA 95134-2453
(Address of Principal Executive Offices)
1-877-526-0707
(Registrant's Telephone Number)
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AGENT FOR SERVICE:
MALCOLM R. FOBES III
The Berkshire Funds
475 Milan Drive, Suite #103
San Jose, CA 95134-2453
(Name and Address of Agent for Service)
COPIES TO:
DONALD S. MENDELSOHN, ESQ.
Brown, Cummins & Brown
3500 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202
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It is proposed that this filing will become effective (check appropriate box)
[ ] immediately upon filing pursuant to paragraph (b) of Rule 485.
[ ] on (date) pursuant to paragraph (b) of Rule 485.
[ ] 60 days after filing pursuant to paragraph (a)(1) of Rule 485.
[ ] on (date) pursuant to paragraph (a)(1) of Rule 485.
[x] 75 days after filing pursuant to paragraph (a)(2) of Rule 485.
[ ] on (date) pursuant to paragraph (a)(2) of Rule 485.
If appropriate, check the following box
[ ] this post-effective amendment designates a new effective date for a
previously filed post-effective amendment.
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<PAGE>
PART A
THE BERKSHIRE FUNDS
Berkshire Focus Fund
Berkshire Technology Fund
Prospectus
<PAGE>
[Outside front cover]
P R O S P E C T U S
December 29, 1999
BERKSHIRE FOCUS FUND
For Investors Seeking Long-Term Capital Appreciation
BERKSHIRE TECHNOLOGY FUND
For Investors Seeking Long-Term Capital Appreciation
As with all mutual funds, the Securities and Exchange Commission has not
approved or disapproved of these securities, nor has the Commission determined
that this Prospectus is complete or accurate. Any representation to the
contrary is a criminal offense.
[LOGO]
THE BERKSHIRE FUNDS
475 Milan Drive, Suite #103
San Jose, California 95134-2453
<PAGE>
TABLE OF CONTENTS
The Funds 4
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The Objective of the Funds...................................... 4
The Principal Investment Strategies and Policies of the Funds... 4
The Principal Risks of Investing in the Funds................... 7
Who Should Invest............................................... 8
Performance History............................................. 9
Costs of Investing in the Funds................................. 10
Expense Example................................................. 11
Additional Investment Strategies and Risk Considerations........ 11
Who Manages the Funds 14
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The Investment Adviser.......................................... 14
The Portfolio Manager........................................... 14
How to Buy and Sell Shares 15
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Pricing of Fund Shares.......................................... 15
Investing in the Funds.......................................... 16
Minimum Investments For Each Fund............................... 16
Types of Account Ownership...................................... 17
Instructions For Opening and Adding to an Account............... 18
Telephone and Wire Transactions................................. 19
Tax-Deferred Plans.............................................. 20
Types of Tax-Deferred Accounts.................................. 21
Automatic Investment Plans...................................... 22
Instructions For Selling Fund Shares............................ 22
Additional Redemption Information............................... 24
How to Exchange Shares.......................................... 26
Shareholder Communications...................................... 26
Dividends and Distributions..................................... 26
Taxes........................................................... 27
Financial Highlights 28
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Prospectus 2
<PAGE>
YOUR GUIDE
TO THE PROSPECTUS
This Prospectus is designed to help you make an informed decision about
whether investing in the Berkshire Focus Fund ("Focus Fund") or the Berkshire
Technology Fund ("Technology Fund") is appropriate for you. Please read it
carefully before investing and keep it on file for future reference. When we
are discussing the Focus Fund and the Technology Fund together, we will refer
to them as the "Funds." The investment adviser for both Funds is Berkshire
Capital Holdings, Inc. (the "Adviser").
To make this Prospectus easy for you to read and understand, we have divided
it into four sections. Each section is organized to help you quickly identify
the information that you are looking for.
The first section, The Funds, contains a discussion of the objective,
investment strategies and policies, risks, performance history and costs of
investing in each Fund. In particular, this section tells you four important
things about each Fund that you should know before you invest:
* Each Fund's investment objective - what the Fund is trying to achieve.
* The principal investment strategies of each Fund - how the Fund tries to
meet its investment objective.
* The investment selection process used by each Fund - how the Fund chooses
its primary investments.
* Risks you should be aware of - the principal risks of investing in each Fund.
The other three sections of the Prospectus - Who Manages the Funds, How to Buy
and Sell Shares, and Financial Highlights - provide you with detailed
information about how the Funds are managed, the services and privileges that
are available to you, how shares are priced, how to buy and sell shares, and
financial information about each Fund.
Prospectus 3
<PAGE>
THE FUNDS
THE OBJECTIVE OF THE FUNDS
* Each Fund's investment objective is long-term capital appreciation.
Any income received is incidental to this objective.
THE PRINCIPAL INVESTMENT STRATEGIES
AND POLICIES OF THE FUNDS
* The Focus Fund invests primarily in the common stocks of large companies,
normally a core position of 20-30 common stocks selected for their long-term
growth potential.
* The Technology Fund, under normal market conditions, invests at least 65%
of its assets in the securities of companies engaged in the development,
production, or distribution of technology-related products or services. These
types of products and services currently include office and business
equipment; computer hardware and software; peripherals; mass storage devices;
semiconductors; data networking and telecommunications equipment; and
Internet-related products and services. The Fund may invest in both small and
large companies, without regard to their size.
[Side panel: Each Fund's objective may be changed by the Board of Trustees
without shareholder approval. You will receive advance written notice of any
material changes to your Fund's objective. If there is a material change, you
should consider whether the Fund remains an appropriate investment for you.]
[Side panel: Large vs. Small companies: Both Funds invest in the equity
securities of large companies. Large companies are often referred to as "large
capitalization" companies because they typically have a market capitalization
of $5 billion or more. The Technology Fund also invests in the equity
securities of small and mid-sized companies. These "small and mid-
capitalization" companies typically have a market capitalization of less
than $5 billion. Market capitalization is calculated by multiplying the number
of shares outstanding by the stock price of the company.]
Prospectus 4
<PAGE>
* Each Fund concentrates its investments in the technology industry, which
means at least 25%, and as much as 100%, of the Fund's total assets can be
invested in that particular industry.
* Each Fund invests primarily in growth companies whose revenues and earnings
are likely to grow faster than the economy as a whole, offering above-average
prospects for capital appreciation and little or no emphasis on dividend
income.
* Each Fund is a "non-diversified" portfolio, which means that it can invest
in fewer securities at any one time than diversified portfolios.
* Under adverse market conditions, when investment opportunities are limited,
or in the event of exceptional redemption requests, each Fund may hold cash or
cash-equivalents and invest without limit in obligations of the U.S.
Government and its agencies and in money market securities, including
high-grade commercial paper, certificates of deposit, repurchase agreements
and short-term debt securities. Under these circumstances, the Funds may not
participate in stock market advances or declines to the same extent that they
would if they remained more fully invested in common stocks. As a result, each
Fund may not achieve its investment objective.
The Investment Selection Process
Used by the Funds
In selecting investments for the Funds, the Adviser focuses on industry
leaders with dominant franchises and strong growth prospects. The Adviser also
uses an approach that combines "top down" economic analysis with an emphasis
on "bottom up" stock selection.
* The "top down" approach considers such macro-economic factors as interest
rates, inflation, gross domestic product, unemployment, inventories, tax
rates, and the regulatory environment, as well as global trends, the overall
competitive
[Side panel: Mutual funds generally emphasize either "growth" or "value"
styles of investing. Growth funds invest in companies that exhibit
faster-than-average growth in revenues and earnings, appealing to investors
who are willing to accept more volatility in hopes of a greater increase in
share price. Value funds in-vest in companies that appear underpriced
according to certain financial measurements of their intrinsic worth or
business prospects. Value funds appeal to investors who want some dividend
income and the potential for capital gains, but are less tolerant of
share-price fluctuations. Both Funds invest primarily in growth companies.]
[Side panel: All mutual funds must elect to be "diversified" or
"non-diversified." As a non-diversified portfolio, each Fund may invest half
of its total assets in two or more securities, while the other half is spread
out among investments not exceeding 5% of the Fund's total assets at the time
of purchase. As a result, each Fund has the ability to take larger positions
in a smaller number of securities than diversified portfolios. These
limitations do not apply to U.S. Government securities.]
Prospectus 5
<PAGE>
landscape, industry consolidation and the sustainability of the economic
trends to predict the direction of the economy. As a result, the Adviser
attempts to identify sectors, industries, and companies which should benefit
from the overall trends.
* Upon completion of its "top down" analysis, the Adviser then takes a
"bottom up" approach to selecting individual companies that are most likely
to benefit from the observed trends. In other words, the Adviser seeks to
identify individual companies with earnings growth potential that may not be
recognized by the market at large.
* In determining whether to invest in a particular company, the Adviser
focuses on a number of different attributes, including the company's specific
market expertise or dominance, its franchise durability, sustainable revenue
and earnings growth, pricing power, strong balance sheet, improving return on
equity, the ability to generate free cash flow, and experienced, motivated,
and creative management.
* The Adviser may also implement fundamental security analysis of individual
companies which have been identified through the "bottom up" approach. As part
of its fundamental research, the Adviser may rely upon specific sources of
information including general economic and industry data as provided by the
U.S. Government, various trade associations and other sources, brokerage
research reports, and published corporate financial data such as annual
reports, 10-Ks, and quarterly statements, as well as direct interviews with
company management. The Adviser also reviews traditional financial data such
as price-sales and earnings ratios, return on assets and equity, gross and net
margins, inventory turns, book value, and debt-equity ratios. The Adviser may,
from time-to-time, employ dividend and cash flow discounting models to
determine the company's intrinsic value which it then compares to the
company's current share price.
[Side panel: Fundamental vs. Technical Analysis: There are two major schools
of stock market analysis used in determining whether a particular stock or
group of stocks are undervalued or overvalued relative to their current market
price. The first major school is "fundamental analysis" which relies on an
analysis of the balance sheet and income statements of companies in order to
forecast their future stock price movements. The other major school is
"technical analysis" which is not concerned with the financial position of a
company, but instead relies on price and volume movements through the use of
charts and computer programs to identify and project trends in a market or
security. The Adviser relies on fundamental analysis in selecting portfolio
securities for the Funds.]
Prospectus 6
<PAGE>
THE PRINCIPAL RISKS OF
INVESTING IN THE FUNDS
Risks in General
Domestic and foreign economic growth and market conditions, interest rate
levels, and political events are among the factors affecting the securities
markets of the Funds' investments. There is the risk the Adviser will not
accurately predict the direction of these and other factors and, as a result,
the Adviser's investment decisions may not accomplish what they were intended
to achieve. You could lose money investing in the Funds. You should consider
your own investment goals, time horizon, and risk tolerance before investing
in either Fund. An investment a Fund may not be appropriate for all investors
and is not intended to be a complete investment program.
Risks of Investing in Common Stocks (Both Funds)
Both Funds invest primarily in common stocks, which subjects the Funds and
their shareholders to the risks associated with common stock investing. These
risks include the financial risk of selecting individual companies that do not
perform as anticipated, the risk that the stock markets in which the Funds
invest may experience periods of turbulence and instability, and the general
risk that domestic and global economies may go through periods of decline and
cyclical change.
Many factors affect an individual company's performance, such as the strength
of its management or the demand for its product or services. You should be
aware that the value of a company's share price may decline as a result of
poor decisions made by management or lower demand for the company's products
or services. In addition, a company's share price may also decline if its
earnings or revenues fall short of expectations.
There are overall stock market risks that may also affect the value of each
Fund. Over time, the stock markets tend to move in cycles, with periods when
stock prices rise generally and periods when stock prices decline generally.
The value of each Fund's investments may increase or decrease more than the
stock markets in general.
Risk of Non-Diversification (Both Funds)
As previously mentioned, each Fund is a non-diversified portfolio, which means
that it has the ability to take larger positions in a smaller number of
securities than a portfolio that is "diversified." Non-diversification
increases the risk that the value of the Fund could go down because of the
poor performance of a single investment.
Prospectus 7
<PAGE>
Industry Risk (Both Funds)
Industry risk is the possibility that stocks within the same industry will
decline in price due to industry-specific market or economic developments. To
the extent that each Fund concentrates its investments in the technology
industry, the Funds are subject to the risk that companies in that industry
are likely to react similarly to legislative or regulatory changes, adverse
market conditions and/or increased competition affecting that market segment.
Because of the rapid pace of technological development, there is the risk that
the products and services developed by these companies may become rapidly
obsolete or have relatively short product cycles. There is also the risk that
the products or services offered by these companies will not meet expectations
or even reach the marketplace. Although the Adviser currently believes that
investments by the Funds in the technology industry will offer greater
opportunity for growth of capital than investments in other industries, such
investments can fluctuate dramatically in value and will expose you to greater
than average risk.
Small Company Risk (Technology Fund)
The Technology Fund may invest a substantial portion of its assets in small
and mid-capitalization companies. While smaller companies generally have the
potential for rapid growth, they often involve higher risks because they lack
the management experience, financial resources, product diversification and
competitive strengths of larger corporations. In addition, in many instances
the securities of smaller companies are traded only over-the-counter or on a
regional securities exchange, and the frequency and volume of their trading is
substantially less than is typical of larger companies. Therefore, the
securities of smaller companies may be subject to wider price fluctuations.
When making large sales, the Fund may have to sell portfolio holdings at
discounts from quoted prices or may have to make a series of small sales over
an extended period of time. Investments in smaller companies tend to be more
volatile and somewhat more speculative.
WHO SHOULD INVEST
The Funds may be suitable for you if:
* You are seeking growth of capital over the long-term - at least five years.
* You can tolerate greater risks associated with common stock investments.
* You are not looking for current income.
* You characterize your investment temperament as "aggressive."
* You are seeking funds that emphasize investments in technology-related
companies.
* You are willing to accept significant fluctuations in share price.
* You are not pursuing a short-term goal or investing emergency reserves.
Prospectus 8
<PAGE>
Performance History
The bar chart and table below show the variability of the Focus Fund's
returns, which is one indicator of the risks of investing in the Fund. The bar
chart shows the Fund's performance for 1998 together with the best and worst
quarters since inception. The table compares the Fund's average annual returns
for the periods indicated to those of broad-based securities market indices.
The Technology Fund commenced operations on December 29, 1999. Performance
results have not been provided because the Technology Fund has not yet been in
existence for a full calendar year. As with all mutual funds, past results are
not an indication of future performance.
BERKSHIRE FOCUS FUND
==========================================================================
(Total return as of 12/31/98)*
==========================================================================
[HORIZONTAL BAR CHART]
|================================================| 104.17%
1998
Total Return
==========================================================================
Best Quarter (12-31-98) +58.06% Worst Quarter (9-30-98) -2.19%
==========================================================================
* The Focus Fund's year-to-date return as of September 30, 1999 was 38.87%.
Average annual total return for periods ended 12/31/98
------------------------------------------------------
Since Inception
1 year (7/1/97)
Berkshire Focus Fund 104.17% 46.46%
Dow Jones Industrial Average(1) 18.13% 14.71%
S&P 500 Index(2) 28.72% 26.44%
NASDAQ Composite Index(3) 40.20% 32.75%
------------------------------------
(1) The Dow Jones Industrial Average is a measurement of general market price
movement for 30 widely-held stocks listed on the New York Stock Exchange.
(2) The S&P 500 is the Standard & Poor's composite index of 500 Stocks, a
widely recognized, unmanaged idex of common stock prices.
(3) The NASDAQ Composite Index is an unmanaged index which averages the
trading prices of more than 3,000 domestic over-the-counter companies.
Prospectus 9
<PAGE>
COSTS OF INVESTING IN THE FUNDS
The following table describes the expenses and fees that you may pay if you
buy and hold shares of each Fund. Annual fund operating expenses are paid out
of the assets of a Fund, so their effect is already included in the Fund's
daily share price.
Shareholder Fees
(fees paid directly from your investment)
==============================================================================
Focus Fund Technology Fund
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Sales Charge (Load) Imposed on Purchases None None
Deferred Sales Charge (Load) None None
Sales Charge (Load) Imposed on Reinvested Dividends None None
Redemption Fee None None
Exchange Fee None None
Annual Fund Operating Expenses(a)
(expenses that are deducted from Fund assets)
==============================================================================
Focus Fund Technology Fund
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Management Fees 1.50% 1.50%
12b-1 Distribution Fees None None
Other Expenses(b) 0.50% 0.50%
Total Annual Fund Operating Expenses 2.00% 2.00%
(a) The expense information for the Focus Fund has been restated to reflect
fees in effect for 1999.
(b) Fees payable under the Administration Agreement between each Fund and the
Adviser are fixed at 0.50% of the Fund's average daily net assets up to
$50 million, 0.45% of such assets from $50 million to $200 million, 0.40%
of such assets from $200 million to $500 million, 0.35% of such assets
from $500 million to $1 billion, and 0.30% of such assets in excess of $1
billion.
[Side panel: The Funds are no-load investments, which means you do not pay any
fees when you buy or sell shares of either Fund. As a result, all of your
investment goes to work for you.]
Prospectus 10
<PAGE>
EXPENSE EXAMPLE
The following example is intended to help you compare the cost of investing in
each Fund with the cost of investing in other mutual funds. The example
assumes that you invest $10,000 in a Fund for the time periods indicated and
then redeem all of your shares at the end of those periods. The example also
assumes that your investment has a 5% annual return each year and that the
Fund's operating expenses remain the same each year. Although your actual
costs may be higher or lower, based on these assumptions your costs would be:
Shareholder Transaction Expenses
=============================================================================
One Year Three Years Five Years Ten Years
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Focus Fund $203 $627 $1,078 $2,327
Technology Fund $203 $627
ADDITIONAL INVESTMENT STRATEGIES
AND RISK CONSIDERATIONS
General
Both Funds invest primarily in common stocks and similar securities, including
preferred stocks, warrants, securities convertible into common stock and
securities purchased on a when-issued basis.
Special Situations (Both Funds)
Each Fund may invest in special situations. A special situation arises when
the Adviser believes that the securities of an issuer will be recognized and
appreciate in value due to a specific development with respect to that issuer.
Developments creating a special situation might include significant changes in
a company's allocation of its existing capital, a restructuring of assets, a
redirection of free cash flows, a new product or process, a technological
breakthrough, a management change or other extraordinary corporate event or a
difference in market supply and demand for the security. The Fund's
performance could suffer if the anticipated development in a "special
situation" investment does not occur or does not attract the expected
attention.
[Side panel: Understanding expenses: Operating a mutual fund involves a
variety of expenses including those for portfolio management, shareholder
statements, tax reporting and other services. These expenses are paid from the
Fund's assets in the form of a management fee and administrative fee. Their
effect is already factored into the Fund's daily share price and returns.]
Prospectus 11
<PAGE>
Portfolio Turnover (Both Funds)
Both Funds generally purchase securities for long-term investment although, to
a limited extent, each Fund may purchase securities in anticipation of
relatively short-term price gains. Short-term transactions may also result
from liquidity needs, securities having reached a price or yield objective,
changes in interest rates, or by reason of economic or other developments not
foreseen at the time of the investment decision. Both Funds may also sell one
security and simultaneously purchase the same or comparable security to take
advantage of short-term differentials in securities prices. Changes are made
in each Fund's portfolio whenever the Adviser believes such changes are
desirable. Portfolio turnover rates are generally not a factor in making buy
and sell decisions. Increased portfolio turnover may cause a Fund to incur
higher brokerage costs, which may adversely affect the Fund's performance, and
may produce increased taxable distributions.
Options and Other Derivatives (Both Funds)
Both Funds may use options on securities, securities indices and other types
of derivatives primarily for hedging purposes. Each Fund may also invest, to a
lesser degree, in these types of securities for non-hedging purposes, such as
seeking to enhance returns.
Derivatives are financial instruments whose value depends upon, or is derived
from, the value of the underlying investment, pool of investments, or index. A
Fund's return on a derivative typically depends on the change in the value of
the investment, pool of investments, or index specified in the derivative
instrument. Derivatives involve special risks and may result in losses. Both
Funds will be dependent on the Adviser's ability to analyze and manage these
sophisticated instruments. The prices of derivatives may move in unexpected
ways, especially in abnormal market conditions. A Fund's use of derivatives
may also increase the amount of taxes payable by shareholders.
Foreign Securities (Both Funds)
Each Fund may invest up to 15% of its net assets in foreign securities. These
investments may be publicly traded in the United States or on a foreign
exchange and may be bought and sold in a foreign currency. The Adviser
generally selects foreign securities on a stock-by-stock basis based on growth
potential. Foreign investments are subject to risks not usually associated
with owning securities of U.S. issuers. These risks can include fluctuations
in foreign currencies, foreign currency exchange controls, political and
economic instability, differences in financial reporting, differences in
securities regulation and trading, and foreign taxation issues.
Prospectus 12
<PAGE>
Fixed Income Securities (Both Funds)
Under normal market conditions, each Fund may invest up to 15% of its total
assets in all types of fixed income securities, including U.S. government
obligations, and up to 10% of its total assets in high-yield bonds. Each Fund
may also purchase fixed income securities on a when-issued, delayed delivery,
or forward commitment basis.
Fixed income securities are subject to credit risk and interest rate risk.
Credit risk is the risk that a Fund could lose money if an issuer of a fixed
income security cannot meet its financial obligations or goes bankrupt.
Interest rate risk is the risk that a Fund's investments in fixed income
securities may fall when interest rates rise.
Investments in high-yield bonds are considered to be more speculative than
higher quality fixed income securities. They are more susceptible to credit
risk than investment-grade securities, especially during periods of economic
uncertainty or economic downturns. The value of lower quality securities are
subject to greater volatility and are generally more dependent on the ability
of the issuer to meet interest and principal payments than higher quality
securities. Issuers of high-yield securities may not be as strong financially
as those issuing bonds with higher credit ratings.
Short Sales (Technology Fund)
The Technology Fund may enter into short sales. If this practice is used by
the Fund, the intent would be to primarily hedge the Fund's portfolio by
shorting against existing portfolio holdings or securities whose values are
linked to various indices such as, Standard & Poor's Depository Receipts,
Diamonds Trust, NASDAQ 100 Trust, and Merrill Lynch HOLDRs Trust. Investing
for hedging purposes may result in certain transaction costs which may reduce
the Fund's performance. In addition, there is no assurance that a short
position will achieve a perfect correlation with the security that is being
hedged against.
Year 2000 Issue (Both Funds)
Each Fund depends on the smooth functioning of computer systems in almost
every aspect of its business. Like other mutual funds, financial and business
organizations and individuals around the world, the Funds could be adversely
affected if the computer systems used by the Adviser or the Funds' various
service providers do not properly process and calculate date-related
information and data on and after January 1, 2000. This possibility is
commonly known as the "Year 2000 Issue." The Adviser has taken steps that it
believes are reasonably designed to address the Year 2000 Issue with respect
to computer systems that are used and to obtain reasonable assurances that
comparable steps are being taken by the Funds' major service providers. At
this time, however, there can be no assurance that these steps will be
sufficient to avoid any adverse impact on the Funds. In addition, the Adviser
cannot make any assurances that the Year 2000 Issue will not affect the
companies in which each Fund invests or worldwide markets and economies.
Prospectus 13
<PAGE>
WHO MANAGES THE FUNDS
THE INVESTMENT ADVISER
Berkshire Capital Holdings, Inc. (the "Adviser" or "Berkshire Capital"),
located at 475 Milan Drive, Suite #103, San Jose, California 95134, serves as
the investment adviser to each Fund under an Investment Advisory Agreement
with The Berkshire Funds (the "Trust"). Each Agreement provides that the
Adviser will furnish continuous investment advisory and management services to
the Fund. Berkshire Capital was organized in February 1993 and began serving
as investment adviser to the Focus Fund in July 1997. Malcolm R. Fobes III is
the controlling shareholder, Chairman and Chief Executive Officer of the
Adviser.
The Adviser manages the investment portfolio of each Fund, subject to policies
adopted by the Trust's Board of Trustees. Under the Investment Advisory
Agreements, the Adviser, at its own expense and without reimbursement from the
Trust, furnishes office space and all necessary office facilities, equipment
and executive personnel necessary for managing the Funds. Berkshire Capital
also pays the salaries and fees of all officers and trustees of the Trust who
are also officers, directors, or employees of Berkshire Capital. For its
services, the Adviser receives a fee of 1.50% per year of the average daily
net assets of each Fund.
THE PORTFOLIO MANAGER
Mr. Fobes manages the investment program of the Funds and is primarily
responsible for the day-to-day management of each Fund's portfolio. He has
been the portfolio manager of the Focus Fund since its inception in 1997 and
the Technology Fund since its inception in 1999. Mr. Fobes founded Berkshire
Capital in 1993 and is responsible for directing the company's investment
programs in both public and private companies located in Silicon Valley. Prior
to forming Berkshire Capital, Mr. Fobes was employed by Adobe Systems, Inc., a
leading provider of digital publishing and imaging software technologies. Mr.
Fobes holds a Bachelor of Science degree in Finance and Economics from San
Jose State University in California.
Prospectus 14
<PAGE>
HOW TO BUY AND SELL SHARES
PRICING OF FUND SHARES
The price you pay for a share of a Fund, and the price you receive upon
selling or redeeming a share of a Fund, is called the Fund's net asset value
("NAV"). The NAV is calculated by taking the total value of the Fund's assets,
subtracting its liabilities, and then dividing by the total number of shares
outstanding, rounded to the nearest cent:
Total Net Assets - Liabilities
Net Asset Value = ------------------------------
Number of Shares Outstanding
The NAV is generally calculated as of the close of trading on the New York
Stock Exchange (normally 4:00 p.m. Eastern time) every day the Exchange is
open. All purchases, redemptions or reinvestments of Fund shares will be
priced at the next NAV calculated after your order is received in proper form
by the Fund's transfer agent, Mutual Shareholder Services, LLC (the "Transfer
Agent"). Your order must be placed with the Transfer Agent prior to the close
of the trading of the New York Stock Exchange in order to be confirmed for
that day's NAV. The Funds' investments are valued at market value or, if a
market quotation is not readily available, at the fair value determined in
good faith by the Adviser, subject to the review and oversight of the Funds'
Board of Trustees. The Funds may use pricing services to determine market
value.
Prospectus 15
<PAGE>
INVESTING IN THE FUNDS
You may purchase shares of either Fund directly through the Fund's Transfer
Agent or through a brokerage firm or other financial institution that has
agreed to sell the Fund's shares. If you are investing directly in a Fund for
the first time, you will need to establish an account by completing a
Berkshire Funds Account Application. (To establish an IRA, complete an IRA
Application.) To request an application, call toll-free 1-877-526-0707 or
visit our website at www.berkshirefunds.com to download an application. Your
initial investment minimum can be found in the table below. The Funds reserve
the right to change the amount of these minimums from time to time or to waive
them in whole or in part for certain accounts. Lower investment minimums are
available to investors purchasing shares through a brokerage firm or other
financial institution.
MINIMUM INVESTMENTS FOR EACH FUND
=======================================================
Initial Additional
=======================================================
Regular account $5,000 $500
Automatic Invesmtent Plan $2,500 $100*
IRA account $2,000 $200
Education IRA $500 $100
- - -------------------------------------------------------
* An Automatic Investment Plan requires a $100 minimum
automatic monthly or quarterly investment.
All purchases must be made in U.S. dollars and checks must be drawn on U.S.
banks. No cash, credit cards or third party checks will be accepted. A $20 fee
will be charged against your account for any payment check returned to the
Transfer Agent or for any incomplete electronic funds transfer, or for
insufficient funds, stop payment, closed account or other reasons. If a check
does not clear your bank or the Fund is unable to debit your predesignated
bank account on the day of purchase, the Fund reserves the right to cancel the
purchase. If your purchase is canceled, you will be responsible for any losses
or fees imposed by your bank and losses that may be incurred as a result of a
decline in the value of the canceled purchase. The Fund (or its agent) has the
authority to redeem shares in your account(s) from either Fund to cover any
losses due to fluctuations in share price. Any profit on such cancellation
will accrue to the Fund.
[Side panel: Investments made through brokerage firms or other financial
institutions: If you invest through a brokerage firm or other financial
institution, the policies and fees may be different than those described here.
Financial advisers, financial supermarkets, brokerage firms, and other
financial institutions may charge transaction and other fees and may set
different minimum investments or limitations on buying or selling shares.
Consult a representative of your financial institution if you have any
questions. Your financial institution is responsible for transmitting your
order in a timely manner.]
Prospectus 16
<PAGE>
Your investment in each Fund should be intended to serve as a long-term
investment vehicle. The Funds are not designed to provide you with a means of
speculating on the short-term fluctuations in the stock market. Each Fund
reserves the right to reject any purchase request that it regards as
disruptive to the efficient management of the Fund, which includes investors
with a history of excessive trading. Each Fund also reserves the right to stop
offering shares at any time.
TYPES OF ACCOUNT OWNERSHIP
You can establish the following types of accounts by completing a Shareholder
Account Application:
* Individual or Joint Ownership
Individual accounts are owned by one person. Joint accounts have two or more
owners.
* A Gift or Transfer to Minor (UGMA or UTMA)
An UGMA/UTMA account is a custodial account managed for the benefit of a
minor. To open an UGMA or UTMA account, you must include the minor's social
security number on the application.
* Trust
An established trust can open an account. The names of each trustee, the name
of the trust and the date of the trust agreement must be included on the
application.
* Business Accounts
Corporation and partnerships may also open an account. The application must be
signed by an authorized officer of the corporation or a general partner of a
partnership.
[Side panel: Costs and market timing: Some investors try to profit from
"market-timing" - switching money into investments when they expect the market
to rise, and taking money out when they expect the market to fall. As money is
shifted in and out by market timers, the Fund incurs expenses for buying and
selling securities. These costs are borne by all Fund shareholders, including
the long-term investors who do not generate the costs. Therefore, each Fund
discourages short-term trading by, among other things, closely monitoring
excessive transactions.]
Prospectus 17
<PAGE>
INSTRUCTIONS FOR OPENING AND ADDING TO AN ACCOUNT
.........................................................................
TO OPEN AN ACCOUNT TO ADD TO AN ACCOUNT
- - --------------------------------------------------------------------------
BY MAIL BY MAIL
.........................................................................
Complete and sign the Account Complete the investment slip
Application or an IRA Application. that is included with your account
statement, and write your account
Make your check payable to either number on your check. If you no
the Berkshire Focus Fund or the longer have your investment slip,
Berkshire Technology Fund. please reference your name, address,
* For IRA accounts, please account number, and the Fund name
specify the year for which on your check.
the contribution is made.
MAIL YOUR APPLICATION AND CHECK TO: MAIL THE SLIP AND THE CHECK TO:
.........................................................................
The Berkshire Funds The Berkshire Funds
c/o Mutual Shareholder Services, LLC c/o Mutual Shareholder Services, LLC
1301 East Ninth Street, Suite 1005 1301 East Ninth Street, Suite 1005
Cleveland, Ohio 44114 Cleveland, Ohio 44114
BY OVERNIGHT COURIER, SEND TO:
.........................................................................
The Berkshire Funds
c/o Mutual Shareholder Services, LLC
1301 East Ninth Street, Suite 1005
Cleveland, Ohio 44114
BY TELEPHONE BY TELEPHONE
.........................................................................
Telephone transactions may not be You must select this service on
used for initial purchases. your account application before
making your first telephone trans-
action. Thereafter, you may call
1-877-593-8637 to purchase shares
in an existing account. Your pur-
chase will be effective at the NAV
next computed after your instruc-
tion is received in proper form by
the Transfer Agent.
Prospectus 18
<PAGE>
TO OPEN AN ACCOUNT TO ADD TO AN ACCOUNT
- - --------------------------------------------------------------------------
BY WIRE BY WIRE
..............................................................................
Call 1-877-593-8637 for instruc- Send your investment to Firstar Bank,
tions and to obtain an investor N.A. by following the instructions
account number or an IRA account listed in the column to the left.
number prior to wiring the funds.
Send your investment to Firstar Bank
N.A. with these instructions:
* Firstar Bank, N.A.
* ABA#: 0420-0001-3
* For Credit to The Berkshire Funds
* DDA#: 821602976
* For further credit to:
Name of fund to be purchased
Your shareholder account number
Your shareholder account name
TELEPHONE AND WIRE TRANSACTIONS
Only bank accounts held at domestic financial institutions that are Automated
Clearing House (ACH) members can be used for telephone purchase transactions.
With respect to all transactions made by telephone, the Funds and their
Transfer Agent will employ reasonable procedures to confirm that instructions
communicated by telephone are genuine. Such procedures may include, among
others, requiring some form of personal identification prior to acting upon
telephone instructions, providing written confirmation of all such
transactions, and/or tape recording all telephone instructions. If reasonable
procedures are followed, then neither the Funds nor the Transfer Agent will be
liable for any loss, cost, or expense for acting upon an investor's telephone
instructions or for any unauthorized telephone redemption. In any instance
where the Funds' Transfer Agent is not reasonably satisfied that instructions
received by telephone are genuine, neither the Funds nor the Transfer Agent
shall be liable for any losses which may occur because of delay in
implementing a transaction.
Prospectus 19
<PAGE>
If you purchase your initial shares by wire, the Transfer Agent first must
have received a completed account application and issued an account number to
you. The account number and Fund name must be included in the wiring
instructions as set forth on the previous page. The Transfer Agent must
receive your account application to establish shareholder privileges and to
verify your account information. Payment of redemption proceeds may be delayed
and taxes may be withheld unless the Funds receive a properly completed and
executed account application.
Shares purchased by wire will be purchased at the NAV next determined after
the Transfer Agent receives your wired funds and all required information is
provided in the wire instructions. If the Transfer Agent is notified no later
than 3:00 p.m. Eastern time of the wire instructions, and the wired funds are
received by the Transfer Agent no later than 5:00 p.m. Eastern time, then the
shares purchased will be priced at the NAV determined on that business day. If
the wire is not received by 5:00 p.m. Eastern time, the purchase will be
effective at the NAV next calculated after receipt of the wire.
TAX-DEFERRED PLANS
If you are eligible, you may set up one or more tax-deferred accounts. A
tax-deferred account allows you to shelter your investment income and capital
gains from current income taxes. A contribution to certain of these plans may
also be tax deductible. Tax-deferred accounts include retirement plans
described on the following page and the Education IRA. Distributions from
these plans are generally subject to an additional tax if withdrawn prior to
age 59 1/2 or used for a nonqualifying purpose. Investors should consult their
tax adviser or legal counsel before selecting a tax-deferred account. Complete
instructions about how to establish and maintain your tax-deferred retirement
plan will be included in the retirement plan kit you receive in the mail.
Firstar Bank, N.A., serves as the custodian for the tax-deferred accounts
offered by the Funds. You will be charged an annual account maintenance fee of
$10 for each tax-deferred account you have with either Fund. You may pay the
fee by check or have it automatically deducted from your account (usually in
December). The custodian reserves the right to change the amount of the fee or
to waive it in whole or part for certain types of accounts.
Prospectus 20
<PAGE>
TYPES OF TAX-DEFERRED ACCOUNTS
* Traditional IRA
An individual retirement account. Your contribution may or may not be
deductible depending on your circumstances. Assets can grow tax-free and
distributions are taxable as income.
* Roth IRA
An IRA with non-deductible contributions, tax-free growth of assets, and
tax-free distributions for qualified distributions.
* Spousal IRA
An IRA funded by a working spouse in the name of a non-earning spouse.
* Education IRA
This plan allows individuals, subject to certain income limitations, to
contribute up to $500 annually on behalf of any child under the age of
eighteen.
* SEP-IRA
An individual retirement account funded by employer contributions. Your assets
grow tax-free and distributions are taxable as income.
* Keogh or Profit Sharing Plans
These plans allow corporations, partnerships and individuals who are
self-employed to make tax-deductible contributions of up to $30,000 for each
person covered by the plans.
* 403(b) Plans
An arrangement that allows employers of charitable or educational
organizations to make voluntary salary reduction contributions to a tax-
deferred account.
* 401(k) Plans
Allows employees of corporations of all sizes to contribute a percentage of
their wages on a tax-deferred basis. These accounts need to be established by
the trustee of the plan.
Prospectus 21
<PAGE>
AUTOMATIC INVESTMENT PLANS
By completing the Automatic Investment Plan section of the account
application, you may make automatic monthly or quarterly investments ($100
minimum per purchase) in either Fund from your bank or savings account. Your
initial investment minimum is $2,500 if you select this option. Shares of
either Fund may also be purchased through direct deposit plans offered by
certain employers and government agencies. These plans enable shareholders to
have all or a portion of their payroll or Social Security checks transferred
automatically to purchase Fund shares.
FOR INVESTING
- - ---------------------------------------------------------------------------
AUTOMATIC INVESTMENT PLAN PAYROLL DIRECT DEPOSIT PLAN
...........................................................................
For making automatic investments For making automatic investments from
from a designated bank account. your payroll check.
DIVIDEND REINVESTMENT:
...........................................................................
All income dividends and capital gains dis-
tributions will be automatically reinvested
in shares of the Funds unless you indicate
otherwise on the account application or in
writing.
INSTRUCTIONS FOR SELLING FUND SHARES
You may sell all or part of your shares on any day that the New York Stock
Exchange is open for trading. Your shares will be sold at the next NAV per
share calculated after your order is received in proper form by the Transfer
Agent. The proceeds of your sale may be more or less than the purchase price
of your shares, depending on the market value of the Fund's securities at the
time of your sale. Your order will be processed promptly and you will
generally receive the proceeds within seven days after receiving your properly
completed request. The Funds will not mail any proceeds unless your investment
check has cleared the bank, which may take up to fifteen calendar days. This
procedure is intended to protect each Fund and its shareholders from loss. If
the dollar or share amount requested is greater than the current value of your
account, your entire account balance will be redeemed. If you choose to redeem
your account in full, any automatic services currently in effect for the
account will be terminated unless you indicate otherwise in writing.
Prospectus 22
<PAGE>
TO SELL SHARES
- - --------------------------------------------------------------------------
By Mail
..........................................................................
Write a letter of instruction that includes:
* The names(s) and signature(s) of all account owners.
* Your account number.
* The name of the Fund.
* The dollar or share amount you want to sell.
* Where to send the proceeds.
* If redeeming from your IRA, please note applicable withholding requirements.
* Obtain a signature guarantee or other documentation, if required.
MAIL YOUR REQUEST TO: BY OVERNIGHT COURIER, SEND TO:
.........................................................................
The Berkshire Funds The Berkshire Funds
c/o Mutual Shareholder Services, LLC c/o Mutual Shareholder Services, LLC
1301 East Ninth Street, Suite 1005 1301 East Ninth Street, Suite 1005
Cleveland, Ohio 44114 Cleveland, Ohio 44114
BY TELEPHONE
.........................................................................
* You will automatically be granted * You will not be able to redeem by
telephone redemption priviledges telephone and have a check sent to
unless you decline them in writing your address of record for a period
or indicate on the appropriate sec- of 15 days following an address
tion of the account application that change.
you decline this option. Otherwise,
you may redeem Fund shares by * Unless you decline telephone
calling 1-877-593-8637. Redemption privileges in writing or on your
proceeds will only be mailed to your account applcation, as long as the
address of record. Funds take reasonable measures to
verify the order, you may be
* You may redeem a maximum of responsible for any fraudulent
$50,000 per day by telephone. telephone order.
For specific information on how to redeem your account, and to determine if a
signature guarantee or other documentation is required, please call toll-free
in the U.S. 1-877-593-8637.
Prospectus 23
<PAGE>
ADDITIONAL REDEMPTION INFORMATION
SIGNATURE GUARANTEES
Signature guarantees are designed to protect both you and the Funds from
fraud. A signature guarantee of each owner is required to redeem shares
in the following situations:
* If you change ownership on your account.
* If you request the redemption proceeds to be sent to a different address
than that registered on the account.
* If the proceeds are to be made payable to someone other than the account's
owner(s).
* If a change of address request has been received by the Transfer Agent
within the last 15 days.
* If you wish to redeem $50,000 or more from any shareholder account.
Signature guarantees can be obtained from most banks, savings and loan
associations, trust companies, credit unions, broker/dealers, and member firms
of a national securities exchange. Call your financial institution to see if
they have the ability to guarantee a signature. A notary public cannot provide
signature guarantees.
The Funds reserve the right to require a signature guarantee under other
circumstances or to delay a redemption when permitted by Federal Law. For more
information pertaining to signature guarantees, please call 1-877-593-8637.
CORPORATE, TRUST AND OTHER ACCOUNTS
Redemption requests from corporate, trust, and other accounts may require
documents in addition to those described above, evidencing the authority of
the officers, trustees or others. In order to avoid delays in processing
redemption requests for these accounts, you should call the Transfer Agent at
1-877-593-8637 to determine what additional documents are required.
[Side panel: What is a redemption? A redemption is a sale by you to the Fund
of some or all of your shares. The price per share you receive when you redeem
Fund shares may be more or less than the price at which you purchased those
shares. When you redeem your shares, you will generally have a gain or loss,
depending upon whether the amount you receive for your shares is more or less
than your cost or other basis in the shares.]
[Side panel: Redemption in kind: The Funds intend to make payments for all
redemptions in cash. However, if a Fund believes that conditions exist which
make cash payments detrimental to the best interests of the Fund, payment for
shares redeemed may be made in whole or in part through a distribution of
portfolio securities chosen by the Adviser (under the supervision of the Board
of Trustees). If payment is made in securities, shareholders may incur
transaction costs in converting these securities into cash after they have
redeemed their shares.]
Prospectus 24
<PAGE>
ADDRESS CHANGES
To change the address on your account, call the Transfer Agent at
1-877-593-8637 and send a written request signed by all account owners.
Include the name of the Fund(s), account number(s), name(s) on the account and
both the old and new addresses. Certain options may be suspended for a period
of 15 days following an address change.
TRANSFER OF OWNERSHIP
In order to change the account registration or transfer ownership of an
account, additional documents will be required. In order to avoid delays in
processing these requests, you should call the Transfer Agent at
1-877-593-8637 to determine what additional documents are required.
REDEMPTION INITIATED BY THE FUNDS
Because there are certain fixed costs involved with maintaining your account,
a Fund may require you to redeem all of your shares if your account balance
falls below $2,500. After your account balance falls below the minimum
balance, you will receive a notification from the Fund indicating its intent
to close your account along with instructions on how to increase the value of
your account to the minimum amount within 60 days. If your account balance is
still below $2,500 after 60 days, the Fund may close your account and send you
the proceeds. This minimum balance requirement does not apply to IRAs and
other tax-sheltered investment accounts. The right of redemption by a Fund
will not apply if the value of your account balance falls below $2,500 because
of market performance. Each Fund reserves the right to close an account if the
shareholder is deemed to engage in activities which are illegal or otherwise
believed to be detrimental to the Fund.
Prospectus 25
<PAGE>
HOW TO EXCHANGE SHARES
You may exchange all or a portion of your investment from one Berkshire Fund
to another. Any new account established through an exchange will have the same
privileges as your original account and will also be subject to the minimum
investment requirements described on Page 16 of this Prospectus. Aside from
this requirement, there is a $500 minimum for exchanging shares under the
program. There is currently no fee for an exchange. Exchanges will be executed
on the basis of the relative NAV of the shares exchanged. An exchange is
considered to be a sale of shares for federal income tax purposes on which you
may realize a taxable gain or loss.
SHAREHOLDER COMMUNICATIONS
ACCOUNT STATEMENTS. Every quarter, shareholders of each Fund will
automatically receive regular account statements. You will also be sent a
yearly statement detailing the tax characteristics of any dividends and
distributions you have received.
CONFIRMATIONS. Confirmation statements will be sent after each transaction
that affects your account balance or account registration.
REGULATORY MAILINGS. Financial reports will be sent at least semiannually.
Annual reports will include audited financial statements. To reduce expenses,
one copy of each report will be mailed to each taxpayer identification number
even though the investor may have more than one account in the Funds.
DIVIDENDS AND DISTRIBUTIONS
Each Fund intends to pay distributions on an annual basis and expects that
distributions will consist primarily of capital gains. You may elect to
reinvest income dividends and capital gain distributions in the form of
additional shares of the Fund or receive
[Side panel: What is a distribution? As a shareholder, you are entitled to
your share of the Fund's income from interest and dividends, and gains from
the sale of investments. You receive such earnings as either an income
dividend or a capital gains distribution. Income dividends come from both the
dividends that the Fund earns from its holdings and interest it receives from
its money market and bond investments. Capital gains are realized when the
Fund sells securities for higher prices than it paid for them. The capital
gains are either short-term or long-term depending on whether the Fund held
the securities for less than or more than one year.]
[Side panel: When a fund makes a distribution to its shareholders, the share
price of the Fund drops by the amount of the distribution, net of any market
fluctuations.]
Prospectus 26
<PAGE>
these distributions in cash. Dividends and distributions from each Fund are
automatically reinvested in the Fund, unless you elect to have dividends paid
in cash. Reinvested dividends and distributions receive the same tax treatment
as those paid in cash. If you are interested in changing your election, you
may send written notification to the Transfer Agent or call 1-877-593-8637.
TAXES
Fund dividends and distributions are taxable to most investors (unless your
investment is in an IRA or other tax-advantaged account). Dividends paid by a
Fund out of net ordinary income and distributions of net short-term capital
gains are generally taxable to the shareholders as ordinary income.
Distributions by a Fund of net long-term capital gains to shareholders are
generally taxable to the shareholders at the applicable long-term capital
gains rate, regardless of how long the shareholder has held shares of the
Fund.
Shareholders that sell, exchange or redeem shares generally will have a
capital gain or loss from the sale, redemption or exchange. The amount of the
gain or loss and the rate of tax will depend mainly upon the amount paid for
the shares, the amount received from the sale, exchange, or redemption, and
how long the shares were held.
The Funds' distributions may be subject to federal income tax whether received
in cash or reinvested in additional shares. In addition to federal taxes, you
may be subject to state and local taxes on distributions.
Additional tax information may be found in the Statement of Additional
Information ("SAI"). Because everyone's tax situation is unique, always
consult your tax professional about federal, state, and local tax consequences
of an investment in either Fund.
[Side panel: "Buying a Dividend" If you purchase shares of a Fund just
before it makes a distribution, you will pay the full price for the shares and
then receive a portion back in the form of a taxable distribution. This is
referred to as "buying a dividend." In order to avoid paying unnecessary taxes
as a result of a distribution, check the Fund's distribution schedule before
you invest.]
Prospectus 27
<PAGE>
FINANCIAL HIGHLIGHTS
The financial highlights table is intended to help you understand the Focus
Fund's financial performance since inception. Certain information reflects
financial results for a single Fund share. The total returns in the table
represent the rate you would have earned (or lost) on an investment in the
Focus Fund (assuming reinvestment of all dividends and distributions). This
information has been audited by McCurdy & Associates CPA's, Inc., the Trust's
independent accountants, whose report, along with the Fund's financial
statements, are included in the SAI, which is available upon request.
Financial highlights for the Technology Fund are not presented because the
Fund did not commence operations until December 29, 1999.
Berkshire Focus Fund (for the period ended December 31, 1998)
- - ----------------------------------------------------------------------------
Per Share Data for a Share Outstanding
Throughout Each Period
Year Period (a)
Ended Ended
12/31/98 12/31/97
-------- --------
NET ASSET VALUE, BEGINNING OF PERIOD: $ 8.64 $ 10.00
INCOME FROM INVESTMENT OPERATIONS:
Net investment income .................... .03 .10
Net realized and unrealized
gains (losses) on investments .......... 8.97 (1.36)
---- -----
Total from investment operations ............. 9.00 8.74
DISTRIBUTIONS:
Dividends (from net investment income) ... (.02) (.10)
Distributions (from capital gains) ....... (1.18) 0
----- -----
Total distributions .......................... (1.20) (.10)
----- -----
NET ASSET VALUE, END OF PERIOD: $ 16.44 $ 8.64
===== ====
TOTAL RETURN - Note (6) ...................... 104.17% (12.60%)(b)
SUPPLEMENTAL DATA AND RATIOS:
Net assets, end of period .................... $ 352,988 $ 101,412
Ratio of expenses to
average net assets(c) .................. 1.93% 1.00%(b)
Ratio of expenses to
average net assets(d) .................. 0% 0%
Ratio of net investment income to
average net assets(c) .................. (1.66%) 0.12%(b)
Ratio of net investment income to
average net assets(d) .................. 0.26% 1.12%(b)
Portfolio turnover rate .................. 136% 13%(b)
(a) Represents the period from the commencement of operations
(July 1, 1997) to December 31, 1997.
(b) Not annualized.
(c) Before fee waiver.
(d) After fee waiver.
Prospectus 28
<PAGE>
THE BERKSHIRE FUNDS
THE BERKSHIRE FOCUS FUND
THE BERKSHIRE TECHNOLOGY FUND
- - -----------------------------
BOARD OF TRUSTEES
Malcolm R. Fobes III, Chairman
Ronald G. Seger
Leland F. Smith
Andrew W. Broer
INVESTMENT ADVISER AND ADMINISTRATOR
Berkshire Capital Holdings, Inc.
LEGAL COUNSEL
Brown, Cummins & Brown Co., L.P.A.
INDEPENDENT AUDITOR
McCurdy & Associates CPA's Inc.
TRANSFER AND DIVIDEND DISBURSING AGENT
Mutual Shareholder Services, LLC
CUSTODIAN
Firstar Bank, N.A.
Prospectus 29
<PAGE>
[Back cover page]
BERKSHIRE FOCUS FUND
BERKSHIRE TECHNOLOGY FUND
- - -----------------------------
WHERE TO GO FOR INFORMATION
- - ---------------------------
For shareholder inquiries, please call toll-free in the U.S. at
1-877-526-0707. You will find more information about the Berkshire Focus Fund
and the Berkshire Technology Fund in the following documents:
ANNUAL AND SEMIANNUAL REPORTS
- - -----------------------------
Our annual and semiannual reports list the holdings of each Fund, describe
Fund performance, include financial statements for the Fund, and discuss the
market conditions and strategies that significantly affected the Fund's
performance
STATEMENT OF ADDITIONAL INFORMATION
- - -----------------------------------
The Statement of Additional Information contains additional and more detailed
information about each Fund, and is considered to be a part of this
Prospectus.
THERE ARE THREE WAYS TO GET A COPY OF THESE DOCUMENTS
- - -----------------------------------------------------
1. Call or write for one, and a copy will be sent without charge.
The Berkshire Funds
475 Milan Drive, Suite #103
San Jose, CA 95134
1-877-526-0707
www.berkshirefunds.com
2. Call or write the Public Reference Section of the Securities and Exchange
Commission ("SEC") and ask them to mail you a copy. The SEC charges a fee
for this service. You can also review and copy information about the Funds
in person at the SEC Public Reference Room in Washington D.C.
Public Reference Section of the SEC
Washington D.C. 20549-0102
1-202-942-8090
Copies of these documents may also be obtained, after paying a
duplication fee, by electronic request at the following e-mail address:
[email protected]
3. Go to the SEC's website (www.sec.gov) and download a text-only version.
THE BERKSHIRE FUNDS SEC file number 811-08043
- - --------------------------------------------------
Prospectus 30
<PAGE>
PART B
THE BERKSHIRE FUNDS
Berkshire Focus Fund
Berkshire Technology Fund
475 Milan Drive, Suite #103
San Jose, California 95134-2453
(877) 526-0707
STATEMENT OF ADDITIONAL INFORMATION
DECEMBER 29, 1999
This Statement of Additional Information ("SAI") is not a Prospectus, but is
to be read in conjunction with the Prospectus for the Berkshire Focus Fund and
the Berkshire Technology Fund dated December 29, 1999 (the "Prospectus"). This
SAI incorporates by reference the Trust's Annual Report to Shareholders for
the fiscal year ended December 31, 1998 ("Annual Report"). To obtain a free
copy of the Prospectus or Annual Report, please write or call the Fund at the
address or phone number referenced above.
TABLE OF CONTENTS
THE FUNDS....................................................................1
CAPITAL STRUCTURE............................................................1
CONCENTRATION AND NON-DIVERSIFICATION POLICY.................................1
TAX STATUS...................................................................2
INVESTMENT RESTRICTIONS......................................................2
OTHER INVESTMENTS............................................................5
INVESTMENT ADVISER...........................................................9
ADVISORY AND ADMINISTRATION AGREEMENTS.......................................9
MANAGEMENT OF THE FUNDS.....................................................10
REMUNERATION OF OFFICERS AND TRUSTEES.......................................11
PRINCIPAL SECURITY HOLDERS..................................................11
REDEMPTION OF SHARES........................................................12
PURCHASES AND SALES THROUGH BROKER DEALERS..................................12
PERFORMANCE INFORMATION.....................................................12
PORTFOLIO TRANSACTIONS AND BROKERAGE........................................14
CUSTODIAN...................................................................15
TRANSFER AGENT..............................................................15
AUDITORS....................................................................16
FINANCIAL STATEMENTS........................................................16
- i -
<PAGE>
THE FUNDS
The Berkshire Focus Fund (until February 9, 1999, known as Berkshire Capital
Growth & Value Fund) and the Berkshire Technology Fund (the "Funds"), are
open-end, non-diversified series of The Berkshire Funds (until February 9,
1999, known as the Berkshire Capital Investment Trust) (the "Trust"). The
Trust was organized on November 25, 1996 as a Delaware business trust and is
authorized to issue an indefinite number of shares of beneficial interest. The
Berkshire Focus Fund was organized on November 25, 1996 and the Berkshire
Technology Fund was organized on November 5, 1999. The Board of Trustees of
the Trust is responsible for managing the business affairs of the Funds.
CAPITAL STRUCTURE
At present the Funds are the only series authorized by the Trust. The Board of
Trustees may authorize the creation of additional series without shareholder
approval.
All shares, when issued, will be fully paid and non-assessable and will be
redeemable and freely transferable. All shares have equal voting rights and
can be issued as full or fractional shares. A fractional share has pro rata
the same kind of rights and privileges as a full share. The shares possess no
preemptive or conversion rights.
Each shareholder has one vote for each share held irrespective of the relative
net asset value of the shares. Each share has equal dividend, distribution and
liquidation rights. The voting rights of the shareholders are non-cumulative,
so that holders of more than 50% of the shares can elect all trustees being
elected. On some issues, such as election of trustees, all shares of the Funds
vote together as one series. On issues affecting only a particular Fund, the
shares of the affected Fund will vote as a separate series. An example of such
an issue would be a fundamental investment restriction pertaining to only one
Fund.
CONCENTRATION AND NON-DIVERSIFICATION POLICY
CONCENTRATION: Each Fund will concentrate its investments in the equity
securities of companies in the technology industry. Concentration requires a
Fund to invest 25% or more of the value of its total assets in securities of
issuers in a particular industry. Companies in the technology industry shall
include businesses which are principally engaged in the development,
production, or distribution of products or services related to the following
business segments: office and business equipment; computer hardware and
software; peripherals; mass storage devices; semiconductors; data networking
and telecommunications equipment; and Internet-related products and services.
In some future period or periods, due to adverse economic conditions in the
technology industry, a Fund may temporarily have less than 25% of the value of
its assets invested in that industry. At such times the Adviser may adopt a
temporary defensive posture and recommend a Fund invest in money market
instruments or U.S. Government obligations. As a result of such concentration
in the technology industry, each Fund's shares may fluctuate more widely than
the value of shares of a portfolio which invests in a broader range of
industries.
NON-DIVERSIFICATION: Each Fund is classified as being non-diversified which
means that it has the ability to take larger positions in a smaller number of
securities than a diversified fund. Each Fund, therefore, may be more
susceptible to risk of loss than a more widely diversified fund as a result of
a single economic, political, or regulatory occurrence. The policy of each
Fund is one of selective investments rather than broad diversification. Each
Fund seeks only enough diversification for adequate representation among what
it considers to be the best performing securities and to maintain its federal
non-taxable status under Subchapter M of the Internal Revenue Code.
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TAX STATUS
Under the provisions of Subchapter M of the Internal Revenue Code of 1986 as
amended, each Fund intends to pay out substantially all of its investment
income and realized capital gains. As a result, the Funds intend to be
relieved of federal income tax on the amounts distributed to shareholders.
Distributions of any net long-term capital gains realized by each Fund will be
taxable to the shareholder as long-term capital gains regardless of the length
of time Fund shares have been held by the investor. All income realized by
each Fund, including short-term capital gains, will be taxable to the
shareholder as ordinary income. Dividends from net income of a Fund will be
made annually or more frequently at the discretion of the Board of Trustees
and will automatically be reinvested in additional Fund shares at net asset
value, unless the shareholder has elected to receive payment in the form of
cash. Dividends received shortly after purchase of shares by an investor will
have the effect of reducing the per share net asset value of the shares by the
amount of such dividends or distributions and, although in effect a return of
capital, are subject to federal income taxes.
Each Fund is required by federal law to withhold 31% of reportable payments
(which may include dividends, capital gains, distributions and redemptions)
paid to shareholders who have not complied with IRS regulations. In order to
avoid this withholding requirement you must certify on the Account
Applications supplied by the Fund, that your Social Security or Taxpayer
Identification Number is correct and that you are not currently subject to
back-up withholding or otherwise certify that you are exempt from back-up
withholding.
INVESTMENT RESTRICTIONS
Berkshire Focus Fund
The Berkshire Focus Fund has adopted the following fundamental investment
restrictions. These restrictions cannot be changed without approval by the
holders of a majority of the outstanding voting securities of the Fund. As
defined in the Investment Company Act of 1940 (the "Act"), the "vote of a
majority of the outstanding voting securities" means the lesser of the vote of
(i) 67% of the shares of the Fund at a meeting where more than 50% of the
outstanding shares are present in person or by proxy or (ii) more than 50% of
the outstanding shares of the Fund.
The Fund may not:
(a) Act as underwriter for securities of other issuers except insofar as the
Fund may be deemed an underwriter in selling its own portfolio securities.
(b) Borrow money or purchase securities on margin except for temporary or
emergency (not leveraging) purposes, including the meeting of redemption
requests that might otherwise require the untimely disposition of securities,
in an aggregate amount not exceeding 25% of the value of the Fund's total
assets at the time any borrowing is made. While the Fund's borrowings are in
excess of 5% of its total assets, the Fund will not purchase any additional
portfolio securities.
(c) Sell securities short.
(d) Invest in securities of other investment companies except as part of a
merger, consolidation, or purchase of assets approved by the Fund's
shareholders or by purchases with no more than 10% of the Fund's assets in the
open market involving only customary broker's commissions.
(e) Make investments in commodities, commodity contracts or real estate
although the Fund may purchase and sell securities of companies which deal in
real estate or interests therein.
(f) Make loans. The purchase of a portion of a readily marketable issue of
publicly distributed bonds, debentures or other debt securities will not be
considered the making of a loan.
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(g) Acquire more than 10% of the securities of any class of another issuer,
treating all preferred securities of an issuer as a single class and all debt
securities as a single class, or acquire more than 10% of the voting
securities of another issuer.
(h) Invest in companies for the purpose of acquiring control.
(i) Purchase or retain securities of any issuer if those officers, directors
or trustees of the Fund or its Investment Adviser individually owns more than
1/2 of 1% of any class of security or collectively own more than 5% of such
class of securities of such issuer.
(j) Pledge, mortgage or hypothecate any of its assets.
(k) Invest in securities which may be subject to registration under the
Securities Act of 1933 prior to sale to the public or which are not at the
time of purchase readily saleable.
(l) Invest more than 10% of the total Fund assets, taken at market value at
the time of purchase, in securities of companies with less than three years'
continuous operation, including the operations of any predecessor.
(m) Issue senior securities.
(n) Acquire any securities of companies within one industry if, as a result of
such acquisition, more than 25% of the value of the Fund's total assets would
be invested in securities of companies within such industry; provided,
however, that there shall be no limitation on the purchase of securities of
companies in the electronic technology industry.
With respect to fundamental restriction (n) above, companies in the electronic
technology industry shall be defined as businesses which are principally
engaged in the development, production, or distribution of products or
services related to the following business segments: Computers, Computer
Peripherals, Semiconductors, Software, Telecommunications and Mass Storage
Devices.
Berkshire Technology Fund
The Berkshire Technology Fund has adopted the following fundamental investment
restrictions. These restrictions cannot be changed without approval by the
holders of a majority of the outstanding voting securities of the Fund. As
defined in the Investment Company Act of 1940 (the "Act"), the "vote of a
majority of the outstanding voting securities" means the lesser of the vote of
(i) 67% of the shares of the Fund at a meeting where more than 50% of the
outstanding shares are present in person or by proxy or (ii) more than 50% of
the outstanding shares of the Fund.
Other investment practices which may be changed by the Board of Trustees
without the approval of shareholders to the extent permitted by applicable
law, regulation or regulatory policy are considered non-fundamental
("Non-Fundamental").
1. Borrowing Money. The Fund will not borrow money, except (a) from a bank,
provided that immediately after such borrowing there is an asset coverage of
300% for all borrowings of the Fund; or (b) from a bank or other persons for
temporary purposes only, provided that such temporary borrowings are in an
amount not exceeding 5% of the Fund's total assets at the time when the
borrowing is made. This limitation does not preclude the Fund from entering
into reverse repurchase transactions, provided that the Fund has an asset
coverage of 300% for all borrowings and repurchase commitments of the Fund
pursuant to reverse repurchase transactions.
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2. Senior Securities. The Fund will not issue senior securities. This
limitation is not applicable to activities that may be deemed to involve the
issuance or sale of a senior security by the Fund, provided that the Fund's
engagement in such activities is consistent with or permitted by the
Investment Company Act of 1940, as amended, the rules and regulations
promulgated thereunder or interpretations of the Securities and Exchange
Commission or its staff.
3. Underwriting. The Fund will not act as underwriter of securities issued by
other persons. This limitation is not applicable to the extent that, in
connection with the disposition of portfolio securities (including restricted
securities), the Fund may be deemed an underwriter under certain federal
securities laws.
4. Real Estate. The Fund will not purchase or sell real estate. This
limitation is not applicable to investments in marketable securities which are
secured by or represent interests in real estate. This limitation does not
preclude the Fund from investing in mortgage-related securities or investing
in companies engaged in the real estate business or that have a significant
portion of their assets in real estate (including real estate investment
trusts).
5. Commodities. The Fund will not purchase or sell commodities unless acquired
as a result of ownership of securities or other investments. This limitation
does not preclude the Fund from purchasing or selling options or futures
contracts, from investing in securities or other instruments backed by
commodities or from investing in companies which are engaged in a commodities
business or have a significant portion of their assets in commodities.
6. Loans. The Fund will not make loans to other persons, except (a) by loaning
portfolio securities, (b) by engaging in repurchase agreements, or (c) by
purchasing nonpublicly offered debt securities. For purposes of this
limitation, the term "loans" shall not include the purchase of a portion of an
issue of publicly distributed bonds, debentures or other securities.
7. Concentration. The Fund will not invest 25% or more of its total assets in
a particular industry other than the technology industry. This limitation is
not applicable to investments in obligations issued or guaranteed by the U.S.
government, its agencies and instrumentalities or repurchase agreements with
respect thereto.
With respect to the percentages adopted by the Trust as maximum limitations on
the Berkshire Technology Fund's investment policies and limitations, an excess
above the fixed percentage will not be a violation of the policy or limitation
unless the excess results immediately and directly from the acquisition of any
security or the action taken. This paragraph does not apply to the borrowing
policy set forth in paragraph 1 above.
Notwithstanding any of the foregoing limitations, any investment company,
whether organized as a trust, association or corporation, or a personal
holding company, may be merged or consolidated with or acquired by the
Berkshire Technology Fund, provided that if such merger, consolidation or
acquisition results in an investment in the securities of any issuer
prohibited by said paragraphs, the Fund shall, within ninety days after the
consummation of such merger, consolidation or acquisition, dispose of all of
the securities of such issuer so acquired or such portion thereof as shall
bring the total investment therein within the limitations imposed by said
paragraphs above as of the date of consummation.
Non-Fundamental. The following limitations have been adopted by the Trust with
respect to the Berkshire Technology Fund and are Non-Fundamental (see
"Fundamental" above).
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a. Pledging. The Fund will not mortgage, pledge, hypothecate or in any manner
transfer, as security for indebtedness, any assets of the Fund except as may
be necessary in connection with borrowings described above. Margin deposits,
security interests, liens and collateral arrangements with respect to
transactions involving options, futures contracts, short sales and other
permitted investments and techniques are not deemed to be a mortgage, pledge
or hypothecation of assets for purposes of this limitation.
b. Borrowing. The Fund will generally borrow only for liquidity purposes. The
Fund will not purchase any security while borrowings (including reverse
repurchase agreements) representing more than 5% of its total assets are
outstanding. The Fund will not invest more then 5% of its net assets in
reverse repurchase agreements.
c. Margin Purchases. The Fund will not purchase securities or evidences of
interest thereon on "margin." This limitation is not applicable to short term
credit obtained by the Fund for the clearance of purchases and sales or
redemption of securities, or to arrangements with respect to transactions
involving options, futures contracts, short sales and other permitted
investments and techniques.
d. Illiquid Investments. The Fund may invest up to 15% of its net assets in
securities for which there are legal or contractual restrictions on resale and
other illiquid securities.
OTHER INVESTMENTS:
In connection with its investment objective and policies each Fund (except
as otherwise indicated) may invest in the following types of securities which
can involve certain risks:
U.S. GOVERNMENT OBLIGATIONS: Each Fund may purchase obligations issued or
guaranteed by the U.S. Government or its agencies or instrumentalities. Such
securities will typically include, without limitation, U.S. Treasury
securities such as Treasury Bills, Treasury Notes or Treasury Bonds that
differ in their interest rates, maturities and times of issuance. U.S.
government obligations may be backed by the credit of the government as a
whole or only by the issuing agency. U.S. Treasury bonds, notes, and bills and
some agency securities, such as those issued by the Federal Housing
Administration and the Government National Mortgage Association (GNMA), are
backed by the full faith and credit of the U.S. government as to payment of
principal and interest and are the highest quality government securities.
Other securities issued by U.S. government agencies or instrumentalities, such
as securities issued by the Federal Home Loan Banks and the Federal Home Loan
Mortgage Corporation, are supported only by the credit of the agency that
issued them, and not by the U.S. government. Securities issued by the Federal
Farm Credit System, the Federal Land Banks, and the Federal National Mortgage
Association (FNMA) are supported by the agency's right to borrow money from
the U.S. Treasury under certain circumstances, but are not backed by the full
faith and credit of the U.S. government.
WARRANTS: Each Fund may purchase warrants, valued at the lower of cost or
market, but only to the extent that such purchase does not exceed 5% of the
Fund's net assets at the time of purchase. Included within that amount, but
not to exceed 2% of the Fund's net assets, may be warrants which are not
listed on the New York or American Stock Exchanges.
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FOREIGN INVESTMENTS. Subject to the limitations described in the prospectus,
each Fund may invest in foreign securities. Foreign investments can involve
significant risks in addition to the risks inherent in U.S. investments. The
value of securities denominated in or indexed to foreign currencies, and of
dividends and interest from such securities, can change significantly when
foreign currencies strengthen or weaken relative to the U.S. dollar. Foreign
securities markets generally have less trading volume and less liquidity than
U.S. markets, and prices on some foreign markets can be highly volatile. Many
foreign countries lack uniform accounting and disclosure standards comparable
to those applicable to U.S. companies, and it may be more difficult to obtain
reliable information regarding an issuer's financial condition and operations.
In addition, the costs of foreign investing, including withholding taxes,
brokerage commissions, and custodial costs, generally are higher than for U.S.
investments.
Foreign markets may offer less protection to investors than U.S. markets.
Foreign issuers, brokers, and securities markets may be subject to less
government supervision. Foreign security trading practices, including those
involving the release of assets in advance of payment, may invoke increased
risks in the event of a failed trade or the insolvency of a broker-dealer, and
may involve substantial delays. It also may be difficult to enforce legal
rights in foreign countries.
Investing abroad also involves different political and economic risks. Foreign
investments may be affected by actions of foreign governments adverse to the
interests of U.S. investors, including the possibility of expropriation or
nationalization of assets, confiscatory taxation, restrictions on U.S.
investment or on the ability to repatriate assets or convert currency into
U.S. dollars, or other government intervention. There may be a greater
possibility of default by foreign governments or foreign government-sponsored
enterprises. Investments in foreign countries also involve a risk of local
political, economic or social instability, military action or unrest, or
adverse diplomatic developments. There is no assurance that the Adviser will
be able to anticipate or counter these potential events and their impacts on
a Fund's share price.
American Depository Receipts and European Depository Receipts ("ADRs" and
"EDRs") are certificates evidencing ownership of shares of a foreign-based
issuer held in trust by a bank or similar financial institution. Designed for
use in U.S. and European securities markets, respectively, ADRs and EDRs are
alternatives to the purchase of the underlying securities in their national
market and currencies.
OPTION TRANSACTIONS. Each Fund may engage in option transactions involving
individual securities and market indexes. An option involves either (a) the
right or the obligation to buy or sell a specific instrument at a specific
price until the expiration date of the option, or (b) the right to receive
payments or the obligation to make payments representing the difference
between the closing price of a market index and the exercise price of the
option expressed in dollars times a specified multiple until the expiration
date of the option. Options are sold (written) on securities and market
indexes. The purchaser of an option on a security pays the seller (the writer)
a premium for the right granted but is not obligated to buy or sell the
underlying security. The purchaser of an option on a market index pays the
seller a premium for the right granted, and in return the seller of such an
option is obligated to make the payment. A writer of an option may terminate
the obligation prior to expiration of the option by making an offsetting
purchase of an identical option. Options are traded on organized exchanges and
in the over-the-counter market. Call options on securities which a Fund
sells (writes) will be covered or secured, which means that it will own the
underlying security in the case of a call option; will segregate with the
Custodian high quality liquid debt obligations equal to the option exercise
price in the case of a put option; or for an option on a stock index, will
hold a portfolio of securities substantially replicating the movement of the
index (or, to the extent it does not hold such a portfolio, will maintain a
segregated account with the Custodian of high quality liquid debt obligations
equal to the market value of the option, marked to market daily). When a
Fund writes options, it may be required to maintain a margin account, to
pledge the underlying securities or U.S. government obligations or to deposit
assets in escrow with the Custodian.
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The purchase and writing of options involves certain risks. The purchase of
options limits a Fund's potential loss to the amount of the premium paid and
can afford the Fund the opportunity to profit from favorable movements in the
price of an underlying security to a greater extent than if transactions were
effected in the security directly. However, the purchase of an option could
result in the Fund losing a greater percentage of its investment than if the
transaction were effected directly. When a Fund writes a covered call
option, it will receive a premium, but it will give up the opportunity to
profit from a price increase in the underlying security above the exercise
price as long as its obligation as a writer continues, and it will retain the
risk of loss should the price of the security decline.
When a Fund writes a put option, it will assume the risk that the price of
the underlying security or instrument will fall below the exercise price, in
which case the Fund may be required to purchase the security or instrument at
a higher price than the market price of the security or instrument. In
addition, there can be no assurance that a Fund can effect a closing
transaction on a particular option it has written. Further, the total premium
paid for any option may be lost if the Fund does not exercise the option or,
in the case of over-the-counter options, the writer does not perform its
obligations.
FIXED INCOME SECURITIES: Fixed income securities include corporate debt
securities, U.S. government securities, mortgage-backed securities, zero
coupon bonds, asset-backed and receivable-backed securities and participation
interests in such securities. Preferred stock and certain common stock
equivalents may also be considered to be fixed income securities. Fixed income
securities are generally considered to be interest rate sensitive, which means
that their value will generally decrease when interest rates rise and increase
when interest rates fall. Securities with shorter maturities, while offering
lower yields, generally provide greater price stability than longer term
securities and are less affected by changes in interest rates.
REPURCHASE AGREEMENTS: A repurchase agreement is a short term investment in
which the purchaser acquires ownership of a U.S. Government security (which
may be of any maturity) and the seller agrees to repurchase the obligation at
a future time at a set price, thereby determining the yield during the
purchaser's holding period (usually not more than seven days from the date of
purchase). Any repurchase transaction in which a Fund engages will require
full collateralization of the seller's obligation during the entire term of
the repurchase agreement. In the event of a bankruptcy or other default of the
seller, a Fund could experience both delays in liquidating the underlying
security and losses in value. However, the Funds intend to enter into
repurchase agreements only with the Trust's custodian, other banks with assets
of $1 billion or more and registered securities dealers determined by the
Adviser to be creditworthy. The Adviser monitors the creditworthiness of the
banks and securities dealers with which a Fund engages in repurchase
transactions, and a Fund will not invest more than 15% of its net assets in
illiquid securities, including repurchase agreements maturing in more than
seven days.
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WHEN ISSUED SECURITIES AND FORWARD COMMITMENTS: Each Fund may buy and sell
securities on a when-issued or delayed delivery basis, with payment and
delivery taking place at a future date. The price and interest rate that will
be received on the securities are each fixed at the time the buyer enters into
the commitment. Each Fund may enter into such forward commitments if it holds,
and maintains until the settlement date in a separate account at the Fund's
Custodian, cash or U.S. government securities in an amount sufficient to meet
the purchase price. Each Fund will not invest more than 25% of its total
assets in forward commitments. Forward commitments involve a risk of loss if
the value of the security to be purchased declines prior to the settlement
date. Any change in value could increase fluctuations in the Fund's share
price and yield. Although each Fund will generally enter into forward
commitments with the intention of acquiring securities for its portfolio, a
Fund may dispose of a commitment prior to the settlement if the Adviser deems
it appropriate to do so.
SHORT SALES (Berkshire Technology Fund only) The Berkshire Technology Fund may
seek to hedge investments through short sales. The Fund may make short sales,
which are transactions in which the Fund sells a security it does not own, in
anticipation of a decline in the market value of that security. Securities
which the Fund may sell short would be those whose values are linked to
various indexes. Examples of these linked securities are Standard & Poor's
Depository Receipts, Diamonds Trust, NASDAQ 100 Trust and Merrill Lynch HOLDRs
Trust. To complete a short sale, the Fund must borrow the security to make
delivery to the buyer. The Fund then is obligated to replace the security
borrowed by purchasing it at the market price at or prior to the time of
replacement. The price at such time may be more or less than the price at
which the security was sold by the Fund. Until the security is replaced, the
Fund is required to repay the lender any dividends or interest that accrue
during the period of the loan. To borrow the security, the Fund also may be
required to pay a premium, which would increase the cost of the security sold.
The net proceeds of the short sale will be retained by the broker, to the
extent necessary to meet margin requirements, until the short position is
closed out. The Fund also will incur transaction costs in effecting short
sales.
The Fund will incur a loss as a result of the short sale if the price of the
security increases between the date of the short sale and the date on which
the Fund replaces the borrowed security. The Fund will realize a gain if the
security declines in price between those dates. The amount of any gain will be
decreased, and the amount of any loss increased by the amount of the premium,
dividends, interest, or expenses the Fund may be required to pay in connection
with a short sale.
In connection with its short sales, the Fund will be required to maintain a
segregated account with its Custodian of cash or liquid assets equal to the
market value of the securities sold less any collateral deposited with its
broker (not including the proceeds from the short sale). The Fund will limit
its short sales so that no more than 10% of its net assets (less all its
liabilities other than obligations under the short sales) will be deposited as
collateral and allocated to the segregated account. However, the segregated
account and deposits will not necessarily limit the Fund's potential loss on a
short sale, which is unlimited.
In addition, the Fund may make short sales "against the box," i.e., when a
security identical to one owned by the Fund is borrowed and sold short. The
Fund may make a short sale when the Fund's investment adviser believes the
price of the stock may decline and, for tax or other reasons, the Fund's
investment adviser does not want to sell the stock currently. If the Fund
enters into a short sale against the box, it is required to segregate
securities equivalent in kind and amount to the securities sold short (or
securities convertible or exchangeable into such securities) and is required
to hold such securities while the short sale is outstanding. The Fund will
incur transaction costs in connection with opening, maintaining and closing
short sales against the box.
The Fund's policy with respect to short sales is non-fundamental, and may be
changed by the Board of Trustees without the vote of the Fund's shareholders.
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INVESTMENT ADVISER
The Funds retain Berkshire Capital Holdings, Inc., 475 Milan Drive, Suite
#103, San Jose, California 95134-2453, as their investment adviser (the
"Adviser"). The Adviser is a California corporation founded in February 1993.
The company is registered as an investment adviser with the Securities and
Exchange Commission under the Investment Advisers Act of 1940. The corporation
is controlled and wholly-owned by Malcolm R. Fobes III and Ronald G. Seger.
Malcolm R. Fobes III has had the direct responsibility for the overall
strategic management of each Fund's portfolio and its administration since the
Fund's inception. Mr. Fobes founded Berkshire Capital Holdings, Inc. in 1993,
has served as Chairman of the Board and Chief Executive Officer since the
company's inception, and has been responsible for the direction of the
company's investments in both private and publicly-held concerns. Mr. Fobes
has a B.S. degree in Finance and a minor in Economics from San Jose State
University in California. In addition to founding the company in 1993, Mr.
Fobes was also simultaneously retained by Adobe Systems, Inc., a
high-technology software development firm, as a technical support engineer
from May 1991 to November 1994. Mr. Fobes has served exclusively in the
capacity of Chairman and Chief Executive Officer of the Adviser from November
1994 to present. Ronald G. Seger has served as Secretary and member of the
Board of Directors of the Adviser since September 1996. Both Mr. Fobes and Mr.
Seger also serve as Trustees of the Funds.
ADVISORY AND ADMINISTRATION AGREEMENTS
The Trust has a separate, but substantially identical, investment advisory
contract (each of which is referred to as an "Advisory Agreement") and a
separate, but substantially identical, administration contract (each of which
is referred to as an "Administration Agreement") with Berkshire Capital
Holdings, Inc. for each Fund.
Under each Advisory Agreement, Berkshire Capital Holdings, Inc. will determine
what securities will be purchased, retained or sold by the applicable Fund on
the basis of a continuous review of its portfolio. Mr. Fobes, will have the
direct responsibility of managing the composition of the Fund's portfolio in
accordance with the Fund's investment objective. Pursuant to its contract with
the Fund, the Adviser must, among other requirements, (i) render research,
statistical and advisory services to the Fund, (ii) make specific
recommendations based on the Fund's investment requirements, and (iii) pay
salaries of the Fund's employees who may be officers, directors or employees
of the Adviser. The Adviser has paid the initial organizational costs of each
Fund.
The Adviser is paid a fee of 1.5% per year on the net assets of each Fund. All
fees are computed on the average daily closing net asset value of the Fund and
are payable monthly. The Adviser may at its discretion, forego sufficient fees
which would have the effect of lowering each Fund's expense ratio and
increasing the yield to shareholders. For the period July 1, 1997
(commencement of operations) to December 31, 1997, and the fiscal year ended
December 31, 1998, the Adviser voluntarily waived all of its fees for the
Berkshire Focus Fund. The Adviser does not intend to waive its fees in 1999.
Each Advisory Contract is terminable on 60 days' written notice, without
penalty, by a vote of a majority of applicable Fund's outstanding shares or by
vote of a majority of the Board of Trustees, or by the Adviser on 60 days'
written notice, and automatically terminates in the event of its assignment.
Under each Administration Agreement, Berkshire Capital Holdings, Inc.
("Berkshire Capital") renders all administrative and supervisory services to
the applicable Fund. Berkshire Capital oversees the maintenance of all books
and records with respect to the Fund's securities transactions and the Fund's
book of accounts in accordance with all applicable federal and state laws and
regulations. Berkshire Capital also arranges for the preservation of journals,
ledgers, corporate documents, brokerage account records and other records
which are required pursuant to Rule 31a-1 promulgated under the 1940 Act.
Berkshire Capital is also responsible for the equipment, staff, office space
and facilities necessary to perform its obligations. Each Fund assumes all
other expenses except to the extent of those paid by the Adviser.
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Under each Administration Agreement, Berkshire Capital assumes and pays all
ordinary expenses of the applicable Fund. Examples of such expenses include:
(a) organizational costs, (b) compensation of the Adviser's personnel, (c)
compensation of any of the Fund's trustees, officers or employees who are not
interested persons of the Investment Adviser or its affiliates, (d) fees and
expenses of registering the Fund's shares under the federal securities laws
and of qualifying its shares under applicable state Blue Sky laws, including
expenses attendant upon renewing such registrations and qualifications, (e)
insurance premiums, (f) fidelity bonds, (g) accounting and bookkeeping costs
and expenses necessary to maintain the Fund's books and records, (h) outside
auditing and ordinary legal expenses, (i) all costs associated with
shareholders meetings and the preparation and dissemination of proxy
solicitation materials, (j) costs of printing and distribution of the Fund's
Prospectus and other shareholder information to existing shareholders, (k)
charges, if any, of custodian and dividend disbursing agent's fees, (l)
industry association fees, and (m) costs of independent pricing services and
calculation of daily net asset value. The Investment Adviser may, at its
discretion, assume any additional expenses ordinarily assumed by a Fund when
it determines that such action is in the best interest of the shareholders.
Any extraordinary and non-recurring expenses shall be paid by the Fund.
Pursuant to each Administration Agreement, Berkshire Capital receives a fee
which is paid monthly at an annual rate of 0.50% of the applicable Fund's
average daily net assets up to $50 million, 0.45% of such assets from $50
million to $200 million, 0.40% of such assets from $200 million to $500
million, 0.35% of such assets from $500 million to $1 billion, and 0.30% of
such assets in excess of $1 billion. For the period July 1, 1997 (commencement
of operations) to December 31, 1997 and for the fiscal year ended December 31,
1998, Berkshire Capital voluntarily waived all fees due for its services as
Administrator to the Berkshire Focus Fund. Berkshire Capital does not intend
to waive its fees in 1999.
The Adviser may act as an investment adviser and administrator to other
persons, firms, or corporations (including investment companies), and may have
numerous advisory clients besides the Funds.
MANAGEMENT OF THE FUNDS
The business of each Fund is managed under the direction of its Board of
Trustees in accordance with Section 3.2 of the Declaration of Trust of The
Berkshire Funds, which Declaration of Trust has been filed with the Securities
and Exchange Commission and is available upon request. Pursuant to Section 2.6
of the Declaration of Trust, the trustees shall elect officers including a
president, secretary and treasurer. The Board of Trustees retains the power to
conduct, operate and carry on the business of each Fund and has the power to
incur and pay any expenses which, in the opinion of the Board of Trustees, are
necessary or incidental to carry out any of the Funds' purposes. The trustees,
officers, employees and agents of the Trust, when acting in such capacities,
shall not be subject to any personal liability except for his or her own bad
faith, willful misfeasance, gross negligence or reckless disregard of his or
her duties. The trustees and officers, together with their addresses, age,
principal occupations during the past five years are as follows:
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<PAGE>
Principal Occupation
Name and Address Position Past 5 Years
===================== ========= =================================
*Malcolm R. Fobes III Trustee and Berkshire Capital Holdings, Inc.;
475 Milan Drive President, Chairman & CEO
Suite #103 Treasurer and
San Jose, CA 95134 Chief Financial
Age: 35 Officer
*Ronald G. Seger Trustee and Ronald G. Seger, O.D.;
1150 W. El Camino Real Secretary Optometrist
Mountain View, CA 94040
Age: 49
Leland F. Smith Trustee **Corporate Asset Strategies, Inc.;
P.O. Box 3539 Chairman & CEO
Sunriver, OR 97707 Elesco, Ltd.;
Age: 60 Chairman & CEO
Andrew W. Broer Trustee Cisco Systems, Inc.;
325 East Tasman Drive Data Center Manager
San Jose, CA 95134 Taligent, Inc.;
Age: 34 Software Integration Engineer
*Trustees who are considered "interested persons" as defined in
Section 2(a)(19) of the Investment Company Act of 1940 by virtue of their
affiliation with the Investment Adviser.
**Corporate Asset Strategies, Inc. provides consulting services in the field
of corporate real estate management.
REMUNERATION OF OFFICERS AND TRUSTEES
Trustee fees are Trust expenses. The Trust does not intend to pay fees to the
Trustees for the fiscal year ended December 31, 1999, but may pay fees in the
future. The compensation paid to the Trustees for the first full year of the
Trust ended December 31, 1998 is set forth in the following table:
===============================================
Total Compensation from
Trust (the Trust is not
Name in a Fund Complex)
===============================================
Malcolm R. Fobes III 0
Ronald G. Seger 0
Leland F. Smith 0
Andrew W. Broer 0
PRINCIPAL SECURITY HOLDERS
As of November 30, 1999, the following persons owned of record 5% or more of
the shares of the Berkshire Focus Fund:
National Investors Services Corp.
55 Water Street, 32nd Floor
New York, NY 10041-3299
20.25%
Donaldson, Lufkin & Jenrette,
P.O. Box 2052
Attn: 14th Floor
Jersey City, NJ
14.12%
National Financial Services Corp.
200 Liberty Street
One World Financial Center
New York, NY 10281
9.50%
As of November 30, 1999, the Trustees and officers of the Trust owned of
record or beneficially .10% of the Berkshire Focus Fund's outstanding shares.
- 11 -
<PAGE>
REDEMPTION OF SHARES
Each Fund has made an election under Rule 18f-1 whereby the Fund may pay for
shares redeemed in part through a distribution of portfolio securities.
Pursuant to Rule 18f-1, the Fund must pay in cash all requests for redemption
by any shareholder of record, limited in amount with respect to each
shareholder during any ninety-day period to the lesser of $250,000 or 1% of
the net value of the Fund at the beginning of such period. Any such
distributions will be taxable to the shareholder.
Each Fund may redeem its shares if the Board of Trustees determines that
failure to do so may have materially adverse consequences to fund
shareholders, such as in a situation where fund expenses on a per share basis
are deemed to be excessive.
PURCHASES AND SALES THROUGH BROKER DEALERS
The Funds may be purchased through broker dealers and other intermediaries.
Each Fund has authorized one or more brokers to receive on its behalf purchase
and redemption orders. Such brokers are authorized to designate other
intermediaries to receive purchase and redemption orders on each Fund's
behalf. The Fund will be deemed to have received a purchase or redemption
order when an authorized broker or, if applicable, a broker's authorized
designee, received the order. Customer orders will be priced at the Fund's net
asset value next computed after they are received by an authorized broker or
the broker's authorized designee.
PERFORMANCE INFORMATION
Each Fund's total returns are based on the overall dollar or percentage change
in value of a hypothetical investment in the Fund, assuming all dividends and
distributions are reinvested. Average annual total return reflects the
hypothetical annually compounded return that would have produced the same
cumulative total return if the Fund's performance had been constant over the
entire period presented. Because average annual total returns tend to smooth
out variations in a Fund's returns, investors should recognize that they are
not the same as actual year-by-year returns. Average annual return is based on
historical earnings and is not intended to indicate future performance.
For the purposes of quoting and comparing the performance of a Fund to that
of other mutual funds and to other relevant market indices in advertisements,
performance will be stated in terms of average annual total return. Under
regulations adopted by the Securities and Exchange Commission, funds that
intend to advertise performance must include average annual total return
quotations calculated according to the following formula:
n
P(1+T) = ERV
Where:
P = a hypothetical initial payment of $1,000
T = average annual total return
n = number of years (1, 5, or 10)
ERV = ending redeemable value of a hypothetical $1,000
payment made at the beginning of the 1-, 5-, or 10-
year period, at the end of such period (or
fractional portion thereof).
Under the foregoing formula, the time periods used in advertising will be
based on rolling calendar quarters, updated to the last day of the most recent
quarter prior to submission of the advertising for publication, and will cover
1, 5, and 10 year periods of the applicable Fund's existence or shorter
periods dating from the commencement of the Fund's registration. In
calculating the ending redeemable value, all dividends and distributions by
the Fund are assumed to have been reinvested at net asset value as described
in the Prospectus on the reinvestment dates during the period. Additionally,
redemption of shares is assumed to occur at the end of each applicable time
period.
- 12 -
<PAGE>
The foregoing information should be considered in light of a Fund's
investment objectives and policies, as well as the risks incurred in the
Fund's investment practices. Each Fund's investment performance will vary
depending upon market conditions, the composition of the Fund's portfolio and
operating expenses of the Fund. These factors and possible differences in the
methods and time periods used in calculating non-standardized investment
performance should be considered when comparing a Fund's performance to
those of other investment companies or investment vehicles. Future results
will be affected by the future composition of the Fund's portfolio, as well as
by changes in the general level of interest rates, and general economic and
other market conditions.
The average annual total return of the Fund for the period July 1, 1997
(commencement of operations) to December 31, 1998 was 46.46% and for the
fiscal year ended December 31, 1998 was 104.17%.
Each Fund may also advertise total return which is calculated differently from
average annual total return. Total return performance for a specific period
(year to date, calendar quarter, fiscal year or portion thereof) is calculated
by taking the initial investment in the Fund's shares on the first day of the
period and the redeemable value of that investment at the end of the period.
The total return percentage is then determined by subtracting the initial
investment from the redeemable value and dividing the remainder by the initial
investment and expressing the result as a percentage. The calculation assumes
that all income and capital gains dividends by the Fund have been reinvested
at net asset value on the reinvestment dates during the period. Total return
may also be shown as the increased dollar value of the hypothetical investment
over the period. A quotation of a Fund's total return will always be
accompanied by the Fund's average annual total return. The total returns for
the Berkshire Focus Fund for various periods are as follows:
PERIOD ENDED
------------
December 31, 1997(a) -12.60%
December 31, 1998(b) 58.06%
December 31, 1998(c) 104.17%
December 31, 1998(d) 77.40%
(a) From July 1, 1997 to December 31, 1997.
(b) From September 30, 1998 to December 31, 1998.
(c) From December 31, 1997 to December 31, 1998.
(d) From July 1, 1997 to December 31, 1998.
Each Fund may also advertise performance information (a "non-standardized
quotation") which is calculated differently from "average annual total
return." A non-standardized quotation of total return may be a cumulative
return which measures the percentage change in the value of an account between
the beginning and end of a period, assuming no activity in the account other
than reinvestment of dividends and capital gains distributions. A
non-standardized quotation may also be an average annual compounded rate of
return over a specified period, which may be a period different from those
specified for "average annual total return." In addition, a non-standardized
quotation may be an indication of the value of a $10,000 investment (made on
the date of the initial public offering of the Fund's shares) as of the end of
a specified period. A non-standardized quotation will always be accompanied by
the Fund's "average annual total return" as described above.
Performance information for a Fund may be compared, in reports and
promotional literature, to the performance of unmanaged indices which may
assume reinvestment of dividends or interest but generally do not reflect
deductions for administrative and management costs. Examples include, but are
not limited to the Dow Jones Industrial Average (DJIA), Standard & Poor's 500
Composite Stock Price Index (S&P 500), the NASDAQ Composite Index (NASDAQ
Composite) and the Russell 2000 Index. The Dow Jones Industrial Average is a
measurement of general market price movement for 30 widely held stocks listed
on the New York Stock Exchange. The S&P 500 Index is an unmanaged index of 500
stocks, the purpose of which is to portray the pattern of common stock price
movement. The NASDAQ Composite Index is an unmanaged index which averages the
trading prices of more than 3,000 domestic over-the-counter companies. The
Russell 2000 Index, representing approximately 11% of the U.S. equity market,
is an unmanaged index comprised of the 2,000 smallest U.S. domiciled
publicly-traded common stocks in the Russell 3000 Index (an unmanaged index of
the 3,000 largest U.S. domiciled publicly-traded common stocks by market
capitalization representing approximately 98% of the U.S. publicly-traded
equity market).
- 13 -
<PAGE>
In assessing such comparisons of performance an investor should keep in mind
that the composition of the investments in the reported indices and averages
is not identical to either Fund's portfolio, that the averages are generally
unmanaged and that the items included in the calculations of such averages may
not be identical to the formula used by the Fund to calculate its performance.
In addition, there can be no assurance that the Fund will continue this
performance as compared to such other averages.
From time to time, in marketing and other fund literature, each Fund's
performance may be compared to the performance of other mutual funds in
general or to the performance of particular types of mutual funds with similar
investment goals, as tracked by independent organizations. Among these
organizations, Lipper Analytical Services, Inc. ("Lipper"), a widely used
independent research firm which ranks mutual funds by overall performance,
investment objectives, and assets, may be cited. Lipper performance figures
are based on changes in net asset value, with all income and capital gain
dividends reinvested. Such calculations do not include the effect of any sales
charges imposed by other funds. Each Fund will be compared to Lipper's
appropriate fund category, that is, by fund objective and portfolio holdings.
Each Fund's performance may also be compared to the average performance of its
Lipper category.
Each Fund's performance may also be compared to the performance of other
mutual funds by Morningstar, Inc. which ranks funds on the basis of historical
risk and total return. Morningstar's rankings range from five stars (highest)
to one star (lowest) and represent Morningstar's assessment of the historical
risk level and total return of a fund as a weighted average for three, five
and ten year periods. Ranks are not absolute or necessarily predictive of
future performance. Performance rankings and ratings reported periodically in
national financial publications such as Barron's and Fortune also may be used.
PORTFOLIO TRANSACTIONS AND BROKERAGE
Subject to policies established by the Board of Trustees of the Trust, the
Investment Adviser is responsible for each Fund's portfolio decisions and the
placing of each Fund's portfolio transactions. In placing portfolio
transactions, the Investment Adviser seeks the best qualitative execution for
the Funds, taking into account such factors as price (including the applicable
brokerage commission or dealer spread), the execution capability, financial
responsibility and responsiveness of the broker or dealer and the brokerage
and research services provided by the broker or dealer. The Investment Adviser
generally seeks favorable prices and commission rates that are reasonable in
relation to the benefits received.
The Investment Adviser is specifically authorized to select brokers or dealers
who also provide brokerage and research services to the Funds and/or the other
accounts over which the Investment Adviser exercises investment discretion and
to pay such brokers or dealers a commission in excess of the commission
another broker or dealer would charge if the Investment Adviser determines in
good faith that the commission is reasonable in relation to the value of the
brokerage and research services provided. The determination may be viewed in
terms of a particular transaction or the Investment Adviser's overall
responsibilities with respect to the Trust and to other accounts over which it
exercises investment discretion.
- 14 -
<PAGE>
Research services include supplemental research, securities and economic
analyses, statistical services and information with respect to the
availability of securities or purchasers or sellers of securities and analyses
of reports concerning performance of accounts. The research services and other
information furnished by brokers through whom the Funds effect securities
transactions may also be used by the Investment Adviser in servicing all of
its accounts. Similarly, research and information provided by brokers or
dealers serving other clients may be useful to the Investment Adviser in
connection with its services to the Funds. Although research services and
other information are useful to the Funds and the Investment Adviser, it is
not possible to place a dollar value on the research and other information
received. It is the opinion of the Board of Trustees and the Investment
Adviser that the review and study of the research and other information will
not reduce the overall cost to the Investment Adviser of performing its duties
to the Funds under the Advisory Agreements.
Over-the-counter transactions will be placed either directly with principal
market makers or with broker-dealers, if the same or a better price, including
commissions and executions, is available. Fixed income securities are normally
purchased directly from the issuer, an underwriter or a market maker.
Purchases include a concession paid by the issuer to the underwriter and the
purchase price paid to a market maker may include the spread between the bid
and asked prices.
For the period July 1, 1997 (commencement of operations) to December 31, 1997
and for the fiscal year ended December 31, 1998, the Berkshire Focus Fund paid
brokerage commissions of $1,941.00 and $2,650.98, respectively.
CUSTODIAN
Firstar Bank, N.A., 425 Walnut Street, M.L. 6118, Cincinnati, Ohio 45202 has
been retained to act as Custodian of the each Fund's investments. The
Custodian Acts as each Fund's depository, safekeeps its portfolio securities
and investments, collects all income and other payments with respect thereto,
disburses funds at the Fund's request and maintains records in connection with
its duties.
TRANSFER AGENT
The Trust has entered into an agreement with Mutual Shareholder Services, LLC,
1301 East Ninth Street, Suite 1005, Cleveland, Ohio, 44114 ("MSS"), to act as
each Fund's transfer agent, effective upon conversion of all records, and to
provide the Trust with accounting services, record-keeping and shareholder
service functions. The conversion was completed in January, 1999. Until the
conversion, Berkshire Capital acted as the Trust's transfer agent and dividend
paying agent. For its services as fund accountant, MSS receives an annual fee
from Berkshire Capital based upon the average value of each Fund, with a
maximum annual fee of $59,250. At Fund net asset values averaging less than
$25 million, the annual fee would be $21,000. For all other services provided,
MSS receives from Berkshire Capital an annual fee of $9.25 per shareholder
(with a minimum charge of $775 per month) for shareholders services provided
and a monthly fee of $10 per state for state registration and qualification of
Fund shares provided.
- 15 -
<PAGE>
AUDITORS
The firm of McCurdy & Associates CPA's, Inc., 27955 Clemens Road, Westlake,
Ohio 44145 has been selected as independent auditors for the Trust for the
year ending December 31, 1999. McCurdy & Associates CPA's, Inc. performs an
annual audit of each Fund's financial statements and provides financial, tax
and accounting consulting services as requested.
FINANCIAL STATEMENTS
The financial statements and independent auditors report required to be
included in the Statement of Additional Information are incorporated herein by
reference to the Trust's Annual Report to Shareholders for the fiscal year
ended December 31, 1998. The Trust will provide the Annual Report without
charge at written or telephone request. The financial statements for the
period ended June 30, 1999 are also incorporated by reference to the Trust's
unaudited Semi-Annual Report to shareholders for the period ended June 30,
1999.
- 16 -
<PAGE>
PART C
OTHER INFORMATION
Item 23. Financial Statements and Exhibits
(a) Articles of Incorporation.
(i) Copy of Registrant's Declaration of Trust, which was filed as
an Exhibit to Registrant's Pre-Effective Amendment No. 1, is
hereby incorporated by reference.
(ii) Copy of August 8, 1998 Addendum to Registrant's Declaration
of Trust, which was filed as an Exhibit to Registrant's
Post-Effective Amendment No. 2, is hereby incorporated by
reference.
(iii) Copy of August 8, 1998 Certificate of Amendment to Registrant's
Declaration of Trust, which was filed as an Exhibit to
Registrant's Post-Effective Amendment No. 2, is hereby
incorporated by reference.
(iv) Copy of December 19, 1999 Certificate of Amendment of
Certificate of Trust is filed herewith.
(b) By-Laws. None.
(c) Instruments Defining Rights of Security Holder. None (other than in the
Declaration of Trust, as amended.)
(d) Investment Advisory Contracts.
(i) Copy of Registrant's Amended and Restated Investment Advisory
Agreement with Berkshire Capital Holdings, Inc. is filed
herewith.
(ii) Copy of Registrant's Investment Advisory Agreement with Berkshire
Capital Holdings, Inc. for the Berkshire Technology Fund is filed
herewith.
(e) Underwriting Contracts. None
(f) Bonus or Profit Sharing Contracts. None.
(g) Custodial Agreements. Copy of Registrant's agreement with the Custodian,
Firstar Bank, N.A., is filed herewith.
(h) Other Material Contracts.
(i) Copy of Registrant's Administration Agreement with Berkshire
Capital Holdings, Inc. for the Berkshire Focus Fund is filed
herewith.
(ii) Copy of Registrant's Administration Agreement with Berkshire
Capital Holdings, Inc. for the Berkshire Technology Fund is filed
herewith.
(i) Legal Opinion and Consent of John F. Splain, Esq. is filed herewith.
(j) Other Opinions. Consent of McCurdy & Associates CPA's, Inc. is filed
herewith.
(k) Omitted Financial Statements. None.
(l) Initial Capital Agreements. Subscription Agreements of the Berkshire
Capital Growth & Value Fund, which were filed as an Exhibit to
Registrant's Pre-Effective Amendment No. 1, are hereby incorporated
by reference.
(m) Rule 12b-1 Plan. None.
(n) Financial Data Schedule. None.
(o) Rule 18f-3 Plan. None.
(p) Power of Attorney. Powers of Attorney for the Trustees of the Trust,
which were filed as part of Registrant's Post-Effective Amendment
Nos. 1 and 2, are hereby incorporated by reference.
Item 24. Control Persons.
None.
Item 25. Indemnification
Under section 3817(a) of the Delaware Business Trust Act, a Delaware business
trust has the power to indemnify and hold harmless any trustee, beneficial
owner or other person from and against any and all claims and demands
whatsoever. Reference is made to sections 5.1 and 5.2 of the Declaration of
Trust of The Berkshire Funds (the "Trust") (which was filed as an exhibit to
the Trust's Pre-Effective Amendment No. 1) pursuant to which no trustee,
officer, employee or agent of the Trust shall be subject to any personal
liability, when acting in his or her individual capacity, except for his own
bad faith, willful misfeasance, gross negligence or reckless disregard of his
or her duties. The Trust shall indemnify each of its trustees, officers,
employees and agents against all liabilities and expenses reasonably incurred
by him or her in connection with the defense or disposition of any actions,
suits or other proceedings by reason of his or her being or having been a
trustee, officer, employee or agent, except with respect to any matter as to
which he or she shall have been adjudicated to have acted in or with bad
faith, willful misfeasance, gross negligence or reckless disregard of his or
her duties.
The Registrant may maintain a standard mutual fund and investment advisory
professional and directors and officers liability policy. The policy, if
maintained, would provide coverage to the Registrant, its Trustees and
officers, and could cover its Advisers, among others. Coverage under the
policy would include losses by reason of any act, error, omission,
misstatement, misleading statement, neglect or breach of duty.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to trustees, officers and controlling persons of the
Trust pursuant to the foregoing, the Trust has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy and therefore may be unenforceable. In the event that a
claim for indemnification (except insofar as it provides for the payment by
the Trust of expenses incurred or paid by a trustee, officer or controlling
person in the successful defense of any action, suit or proceeding) is
asserted against the Trust by such trustee, officer or controlling person and
the Securities and Exchange Commission is still in the same opinion, the Trust
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue. Indemnification provisions exist in the Investment
Advisory and Administration Agreement under the headings "Limitation of
Liability" which are identical to those in the Declaration of Trust noted
above.
Item 26. Activities of Investment Adviser
(a) Berkshire Capital Holdings, Inc., 475 Milan Drive, #103, San Jose,
California 95134-2453 ("Berkshire") is a registered investment adviser. It has
engaged in no other business during the past two fiscal years.
(b) The following list sets forth other substantial business activities of
the directors and officers of Berkshire during the past two years - None.
Item 27. Principal Underwriter
None.
Item 28. Location of Accounts and Records
The Registrant will maintain physical possession of the Declaration of Trust,
By-Laws and minute books. All other accounts, books and other documents
required to be maintained by section 31(a) of the Investment Company Act of
1940 and the rules promulgated thereunder will be maintained by the
Registrant, Firstar Bank, N.A., 425 Walnut Street, M.L. 6118, Cincinnati,
Ohio 45202 as Custodian for the Registrant or Mutual Shareholder Services,
LLC, 1301 E. Ninth Street, Suite 1005, Cleveland, Ohio 44114.
Item 29. Management Services. Not Discussed in Parts A or B.
None.
Item 30. Undertakings
None.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Jose, State of California
on the 22nd day of December, 1999.
THE BERKSHIRE FUNDS
By: /s/ MALCOLM R. FOBES
------------------------------
MALCOLM R. FOBES, III, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
December 22, 1999
/s/ MALCOLM R. FOBES
------------------------------------
MALCOLM R. FOBES, III
President, Treasurer, Chief Financial
Officer & Trustee
RONALD G. SEGER* *By: /s/ Malcolm R. Fobes III
Trustee ------------------------------------
Attorney In Fact
LELAND F. SMITH*
Trustee December 22, 1999
ANDREW W. BROER*
Trustee
<PAGE>
<PAGE>
EXHIBIT INDEX
1. Certificate of Amendment of Certificate of Trust...............EX-99.23.a.4
2. Investment Advisory Agreement for Berkshire Focus Fund.........EX-99.23.d.1
3. Investment Advisory Agreement for Berkshire Technology Fund....EX-99.23.d.2
4. Custody Agreement................................................EX-99.23.g
5. Administration Agreement for Berkshire Focus Fund..............EX-99.23.h.1
6. Administration Agreement for Berkshire Technology Fund.........EX-99.23.h.2
7. Legal Opinion and Consent........................................EX-99.23.i
8. Consent of Independent Public Accountants........................EX-99.23.j
<PAGE>
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF TRUST
of
THE BERKSHIRE FUNDS
This Certificate of Amendment is filed in accordance with the provisions
of the Delaware Business Trust Act (12 Del. C. Section 380 et. seq.) and sets
forth the following:
1. The name of the business trust is THE BERKSHIRE FUNDS
(the "Trust").
2. The Certificate of Trust filed on November 25, 1996 is to
be amended to reflect the establishment of an additional
series of shares of the Trust and the designation of such
series as the "Berkshire Technology Fund." The relative
rights and preferences of the Berkshire Technology Fund
shall be those rights and preferences set forth in Section
8.8 of the Trust's Declaration of Trust.
3. This Certificate of Amendment is to be effective upon this
filing with the Secretary of State of the State of Delaware.
The undersigned, in order to amend the Certificate of Trust of
THE BERKSHIRE FUNDS under the laws of the State of Delaware, hereby execute
this Certificate of Amendment on this 19th day of December, 1999.
/s/ Malcolm R. Fobes III
-----------------------------
Malcolm R. Fobes III, Trustee
/s/ Ronald G. Seger
------------------------
Ronald G. Seger, Trustee
/s/ Leland F. Smith
------------------------
Leland F. Smith, Trustee
/s/ Andrew W. Broer
------------------------
Andrew W. Broer, Trustee
<PAGE>
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT ("Agreement"), made and entered into
the 1st day of January, 1999, and amended this 19th day of December, 1999, by
and between The Berkshire Funds, a Delaware business trust (the "Trust"), and
Berkshire Capital Holdings, Inc., a California corporation (the "Investment
Adviser").
W I T N E S S E T H:
WHEREAS, the Trust, an open-end, non-diversified investment company
registered under the Investment Company Act of 1940 (the "1940 Act"), wishes
to retain the Investment Adviser to provide investment advisory services to
the Berkshire Focus Fund (the "Fund"), a series of the Trust; and
WHEREAS, the Investment Adviser is willing to furnish such services on
the terms and conditions hereinafter set forth; and
WHEREAS, management has recommended that certain non-material revisions
be made to this Agreement, to (i) reflect a change in the names of the Trust
and the Fund and (ii) clarify that this Agreement relates to the Investment
Adviser's services to the Fund only and not to future series of the Trust; and
WHEREAS, the Board of Trustees has determined that the revisions
recommended by management will have no impact on existing or future
shareholders of the Fund;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. EMPLOYMENT OF THE INVESTMENT ADVISER. The Trust hereby appoints the
Investment Adviser to manage the investment and reinvestment of assets of the
Fund for the period and on the terms set forth in this Agreement. The
Investment Adviser accepts such appointment and agrees to render the services
herein set forth, for the compensation herein provided.
2. OBLIGATIONS OF THE TRUST. The Trust shall at all times inform the
Investment Adviser as to the securities owned by it, the funds available or to
become available for investment by it, and generally as to the condition of
its affairs. It shall furnish the Investment Adviser with such other documents
and information with regard to its affairs as the Investment Adviser may from
time to time reasonably request.
3. OBLIGATIONS OF THE INVESTMENT ADVISER. Subject to the direction and
control of the Trust's Board of Trustees, the Investment Adviser shall
regularly provide the Fund with investment research, advice, management and
supervision and shall furnish a continuous investment program for the Fund's
portfolio of securities consistent with the Fund's investment objective,
policies, and limitations as stated in the Fund's current Prospectus and
Statement of Additional Information. The Investment Adviser shall determine
from time to time what securities will be purchased, retained or sold by the
Fund, and shall implement those decisions, all subject to the provisions of
the Trust's Declaration of Trust, the 1940 Act, the applicable rules and
regulations of the Securities and Exchange Commission, and other applicable
federal and state laws, as well as the investment objectives, policies, and
limitations of the Fund. In placing orders for the Fund with brokers and
dealers with respect to the execution of the Fund's securities transactions,
the Investment Adviser shall attempt to obtain the best net results. In doing
so, the Investment Adviser may consider such factors which it deems relevant
to the Fund's best interest, such as price, the size of the transaction, the
nature of the market for the security, the amount of the commission, the
timing of the transaction, the reputation, experience and financial stability
of the broker-dealer involved and the quality of service rendered by the
broker-dealer in other transactions. The Investment Adviser shall have the
discretionary authority to utilize certain broker-dealers even though it may
result in the payment by the Fund of an amount of commission for effecting a
securities transaction in excess of the amount of commission another
broker-dealer would have charged for effecting that transaction, providing,
however, that the Investment Adviser had determined that such amount of
commission was reasonable in relation to the value of the brokerage and
research services provided by the broker-dealer effecting the transaction. In
no instance will portfolio securities be purchased from or sold to the
Investment Adviser or any affiliated person thereof except in accordance with
the rules and regulations promulgated by the Securities and Exchange
Commission pursuant to the 1940 Act. The Investment Adviser shall also provide
advice and recommendations with respect to other aspects of the business and
affairs of the Fund and shall perform such other functions of management and
supervision as may be directed by the Board of Trustees of the Trust, provided
that in no event shall the Investment Adviser be responsible for any expense
occasioned by the performance of such functions.
4. EXPENSES OF THE FUND. The Investment Adviser is responsible for (i)
the compensation of any of the Trust's trustees, officers and employees who
are interested persons of the Investment Adviser, (ii) compensation of the
Investment Adviser's personnel and other expenses in connection with the
provisions of portfolio management services under this Agreement, and (iii)
expenses of printing and distributing the Fund's prospectus and sales and
advertising materials to prospective clients. Other than as herein
specifically indicated, the Investment Adviser shall not be responsible for
the Fund's expenses. Specifically, the Investment Adviser will not be
responsible, except to the extent of the reasonable compensation of employees
of the Trust whose services may be used by the Investment Adviser hereunder,
for any of the following expenses of the Fund, which expenses shall be borne
by Fund: legal and audit expenses, organizational expenses; interest; taxes;
governmental fees; industry association fees; the cost (including brokerage
commissions or charges, if any) of securities purchased or sold by the Fund
and any losses incurred in connection herewith; fees, if any, of custodians,
transfer agents, registrars or other agents; distribution fees; expenses of
preparing share certificates; expenses relating to the redemption or
repurchase of the Fund's shares; fees and expenses of registering the Fund's
shares under the federal securities laws and of qualifying its shares under
applicable state Blue Sky laws, including expenses attendant upon renewing
such registrations and qualifications; expenses of preparing, setting in
print, printing and distributing prospectuses, proxy statements, reports,
notices, and dividends to fund shareholders; cost of stationary; costs of
shareholders and other meetings of the Fund; compensation and expenses of the
independent trustees of the Trust; fidelity bond and other insurance covering
the Trust and its officers and trustees.
5. LIMITATIONS ON SALARIES. No trustee, officer or employee of the Trust
shall receive from the Fund any salary or other compensation as such trustee,
officer or employee while he is at the same time director, officer or employee
of the Investment Adviser or any affiliated company of the Investment Adviser.
This paragraph shall not apply to trustees, executive committee members,
consultants and other persons who are not regular members of the Investment
Adviser's or any affiliated company's staff.
6. COMPENSATION. As compensation for the services performed by the
Investment Adviser, the Fund shall pay the Investment Adviser, as promptly as
possible after the last day of each month, a fee, accrued each calendar day
(including weekends and holidays) at a rate of 1.5% per annum of the daily net
assets of the Fund. The Investment Adviser shall reduce such fee or, if
necessary, make payments to the Fund to the extent required to satisfy any
limitations with respect thereto imposed by the securities laws or regulations
thereunder of any state in which the Fund's shares are qualified for sale. The
daily net assets of the Fund shall be computed as of the time of the regular
close of business of the New York Stock Exchange, or such other time as may be
determined by the Board of Trustees of the Trust. Any of such payments as to
which the Investment Adviser may so request shall be accompanied by a report
of the Fund prepared either by the Trust or by a reputable firm of independent
accountants which shall show the amount properly payable to the Investment
Adviser under this Agreement and detailed computation thereof.
7. LIMITATION OF LIABILITY. The Investment Adviser assumes no
responsibility under this Agreement other than to render the services called
for hereunder in good faith, and shall not be responsible for any action of
the Board of Trustees of the Trust in the following or declining to follow any
advice or recommendation of the Investment Adviser; provided that nothing in
this Agreement shall protect the Investment Adviser against any liability to
the Fund or its stockholders to which it would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of
its duties or by reason of its reckless disregard of its obligations and
duties hereunder.
8. INDEPENDENT CONTRACTOR. The Investment Adviser shall be an independent
contractor and shall have no authority to act for or represent the Fund in its
investment commitments unless otherwise provided. No agreement, bid, offer,
commitment, contract or other engagement entered into by the Investment
Adviser whether on behalf of the Investment Adviser or whether purporting to
have been entered into on behalf of the Fund shall be binding upon the Fund,
and all acts authorized to be done by the Investment Adviser under this
Agreement shall be done by it as an independent contractor and not as an
agent.
9. ACTIVITIES OF THE INVESTMENT ADVISER. Nothing in this Agreement shall
limit or restrict the right of any director, officer, or employee of the
Investment Adviser who may also be a trustee, officer, or employee of the
Trust, to engage in any other business or to devote his time and attention in
part to the management or other aspects of any other business, whether of a
similar nature or dissimilar nature, nor to limit or restrict the right of the
Investment Adviser to engage in any other business or to render services of
any kind, including investment advisory services, to any other corporation,
firm, individual or association.
10. DEFINITIONS. As used in this Agreement, the terms "assignment,"
"interested person," and "majority of the outstanding voting securities" shall
have meanings given to them by Section 2(a) of the 1940 Act, subject to such
exemptions as may be granted by the Securities and Exchange Commission by any
rule, regulation or order.
11. TERMINATION. This Agreement shall terminate automatically in the
event of its assignment by the Investment Adviser and shall not be assignable
by the Trust without consent of the Investment Adviser. This Agreement may
also be terminated at any time, without payment of penalty (i) by the Trust
either by vote of the Board of Trustees of the Trust or by vote of a majority
of the outstanding voting securities of the Fund, on 60 days written notice to
the Investment Adviser, or (ii) by the Investment Adviser on 60 days written
notice to the Trust. Upon the termination of this Agreement, the obligations
of all the parties hereunder shall cease and terminate as of the date of such
termination, except for any obligation to respond for a breach of this
Agreement committed prior to such termination and except or the obligation of
the Fund to pay to the Investment Adviser the fee provided in Paragraph 6
hereof, prorated to the date of termination.
12. TERM. This Agreement shall become effective on January 1, 1999, and
shall continue in effect for one year and from year to year thereafter only so
long as specifically approved annually, by (i) the Trust's Board of Trustees
and by a vote of the holders of a majority of the outstanding voting
securities of the Fund, or (ii) a majority of the Trustees who are not parties
to the Agreement or "interested persons" (as defined in the Act) of any such
party cast in person at a meeting called for the purpose of voting on such
approval.
13. AMENDMENTS. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought, and no material amendment of this agreement shall be
effective until approved by vote of the holders of a majority of the Fund's
outstanding voting securities.
14. SEVERABILITY. 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 hereto have caused this Agreement to be
executed and sealed by their officers thereunto duly authorized on the day and
year first above written.
ATTEST: THE BERKSHIRE FUNDS
By: /s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
------------------- ------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary President
ATTEST: BERKSHIRE CAPITAL HOLDINGS, INC.
By: /s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
------------------- ------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary Chairman & CEO
<PAGE>
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT ("Agreement"), made and entered into
this 19th day of December, 1999, by and between The Berkshire Funds, a
Delaware business trust (the "Trust"), and Berkshire Capital Holdings, Inc., a
California corporation (the "Investment Adviser").
W I T N E S S E T H:
WHEREAS, the Trust, an open-end, non-diversified investment company
registered under the Investment Company Act of 1940 (the "1940 Act"), wishes
to retain the Investment Adviser to provide investment advisory services to
the Berkshire Technology Fund (the "Fund"), a series of the Trust; and
WHEREAS, the Investment Adviser is willing to furnish such services on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. EMPLOYMENT OF THE INVESTMENT ADVISER. The Trust hereby appoints the
Investment Adviser to manage the investment and reinvestment of assets of the
Fund for the period and on the terms set forth in this Agreement. The
Investment Adviser accepts such appointment and agrees to render the services
herein set forth, for the compensation herein provided.
2. OBLIGATIONS OF THE TRUST. The Trust shall at all times inform the
Investment Adviser as to the securities owned by it, the funds available or to
become available for investment by it, and generally as to the condition of
its affairs. It shall furnish the Investment Adviser with such other documents
and information with regard to its affairs as the Investment Adviser may from
time to time reasonably request.
3. OBLIGATIONS OF THE INVESTMENT ADVISER. Subject to the direction and
control of the Trust's Board of Trustees, the Investment Adviser shall
regularly provide the Fund with investment research, advice, management and
supervision and shall furnish a continuous investment program for the Fund's
portfolio of securities consistent with the Fund's investment objective,
policies, and limitations as stated in the Fund's current Prospectus and
Statement of Additional Information. The Investment Adviser shall determine
from time to time what securities will be purchased, retained or sold by the
Fund, and shall implement those decisions, all subject to the provisions of
the Trust's Declaration of Trust, the 1940 Act, the applicable rules and
regulations of the Securities and Exchange Commission, and other applicable
federal and state laws, as well as the investment objectives, policies, and
limitations of the Fund. In placing orders for the Fund with brokers and
dealers with respect to the execution of the Fund's securities transactions,
the Investment Adviser shall attempt to obtain the best net results. In doing
so, the Investment Adviser may consider such factors which it deems relevant
to the Fund's best interest, such as price, the size of the transaction, the
nature of the market for the security, the amount of the commission, the
timing of the transaction, the reputation, experience and financial stability
of the broker-dealer involved and the quality of service rendered by the
broker-dealer in other transactions. The Investment Adviser shall have the
discretionary authority to utilize certain broker-dealers even though it may
result in the payment by the Fund of an amount of commission for effecting a
securities transaction in excess of the amount of commission another
broker-dealer would have charged for effecting that transaction, providing,
however, that the Investment Adviser had determined that such amount of
commission was reasonable in relation to the value of the brokerage and
research services provided by the broker-dealer effecting the transaction. In
no instance will portfolio securities be purchased from or sold to the
Investment Adviser or any affiliated person thereof except in accordance with
the rules and regulations promulgated by the Securities and Exchange
Commission pursuant to the 1940 Act. The Investment Adviser shall also provide
advice and recommendations with respect to other aspects of the business and
affairs of the Fund and shall perform such other functions of management and
supervision as may be directed by the Board of Trustees of the Trust, provided
that in no event shall the Investment Adviser be responsible for any expense
occasioned by the performance of such functions.
4. EXPENSES OF THE FUND. The Investment Adviser is responsible for (i)
the compensation of any of the Trust's trustees, officers and employees who
are interested persons of the Investment Adviser, (ii) compensation of the
Investment Adviser's personnel and other expenses in connection with the
provisions of portfolio management services under this Agreement, and (iii)
expenses of printing and distributing the Fund's prospectus and sales and
advertising materials to prospective clients. Other than as herein
specifically indicated, the Investment Adviser shall not be responsible for
the Fund's expenses. Specifically, the Investment Adviser will not be
responsible, except to the extent of the reasonable compensation of employees
of the Trust whose services may be used by the Investment Adviser hereunder,
for any of the following expenses of the Fund, which expenses shall be borne
by Fund: legal and audit expenses, organizational expenses; interest; taxes;
governmental fees; industry association fees; the cost (including brokerage
commissions or charges, if any) of securities purchased or sold by the Fund
and any losses incurred in connection herewith; fees, if any, of custodians,
transfer agents, registrars or other agents; distribution fees; expenses of
preparing share certificates; expenses relating to the redemption or
repurchase of the Fund's shares; fees and expenses of registering the Fund's
shares under the federal securities laws and of qualifying its shares under
applicable state Blue Sky laws, including expenses attendant upon renewing
such registrations and qualifications; expenses of preparing, setting in
print, printing and distributing prospectuses, proxy statements, reports,
notices, and dividends to fund shareholders; cost of stationary; costs of
shareholders and other meetings of the Fund; compensation and expenses of the
independent trustees of the Trust; fidelity bond and other insurance covering
the Trust and its officers and trustees.
5. LIMITATIONS ON SALARIES. No trustee, officer or employee of the Trust
shall receive from the Fund any salary or other compensation as such trustee,
officer or employee while he is at the same time director, officer or employee
of the Investment Adviser or any affiliated company of the Investment Adviser.
This paragraph shall not apply to trustees, executive committee members,
consultants and other persons who are not regular members of the Investment
Adviser's or any affiliated company's staff.
6. COMPENSATION. As compensation for the services performed by the
Investment Adviser, the Fund shall pay the Investment Adviser, as promptly as
possible after the last day of each month, a fee, accrued each calendar day
(including weekends and holidays) at a rate of 1.5% per annum of the daily net
assets of the Fund. The Investment Adviser shall reduce such fee or, if
necessary, make payments to the Fund to the extent required to satisfy any
limitations with respect thereto imposed by the securities laws or regulations
thereunder of any state in which the Fund's shares are qualified for sale. The
daily net assets of the Funds shall be computed as of the time of the regular
close of business of the New York Stock Exchange, or such other time as may be
determined by the Board of Trustees of the Trust. Any of such payments as to
which the Investment Adviser may so request shall be accompanied by a report
of the Fund prepared either by the Trust or by a reputable firm of independent
accountants which shall show the amount properly payable to the Investment
Adviser under this Agreement and detailed computation thereof.
7. LIMITATION OF LIABILITY. The Investment Adviser assumes no
responsibility under this Agreement other than to render the services called
for hereunder in good faith, and shall not be responsible for any action of
the Board of Trustees of the Trust in the following or declining to follow any
advice or recommendation of the Investment Adviser; provided that nothing in
this Agreement shall protect the Investment Adviser against any liability to
the Fund or its stockholders to which it would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of
its duties or by reason of its reckless disregard of its obligations and
duties hereunder.
8. INDEPENDENT CONTRACTOR. The Investment Adviser shall be an independent
contractor and shall have no authority to act for or represent the Fund in its
investment commitments unless otherwise provided. No agreement, bid, offer,
commitment, contract or other engagement entered into by the Investment
Adviser whether on behalf of the Investment Adviser or whether purporting to
have been entered unto on behalf of the Fund shall be binding upon the Fund,
and all acts authorized to be done by the Investment Adviser under this
Agreement shall be done by it as an independent contractor and not as an
agent.
9. ACTIVITIES OF THE INVESTMENT ADVISER. Nothing in this Agreement shall
limit or restrict the right of any director, officer, or employee of the
Investment Adviser who may also be a trustee, officer, or employee of the
Trust, to engage in any other business or to devote his time and attention in
part to the management or other aspects of any other business, whether of a
similar nature or dissimilar nature, nor to limit or restrict the right of the
Investment Adviser to engage in any other business or to render services of
any kind, including investment advisory services, to any other corporation,
firm, individual or association.
10. DEFINITIONS. As used in this Agreement, the terms "assignment,"
"interested person," and "majority of the outstanding voting securities" shall
have meanings given to them by Section 2(a) of the 1940 Act, subject to such
exemptions as may be granted by the Securities and Exchange Commission by any
rule, regulation or order.
11. TERMINATION. This Agreement shall terminate automatically in the
event of its assignment by the Investment Adviser and shall not be assignable
by the Trust without consent of the Investment Adviser. This Agreement may
also be terminated at any time, without payment of penalty (i) by the Trust
either by vote of the Board of Trustees of the Trust or by vote of a majority
of the outstanding voting securities of the Fund, on 60 days written notice to
the Investment Adviser, or (ii) by the Investment Adviser on 60 days written
notice to the Trust. Upon the termination of this Agreement, the obligations
of all the parties hereunder shall cease and terminate as of the date of such
termination, except for any obligation to respond for a breach of this
Agreement committed prior to such termination and except or the obligation of
the Fund to pay to the Investment Adviser the fee provided in Paragraph 6
hereof, prorated to the date of termination.
12. TERM. This Agreement shall become effective on January 1, 1999, and
shall continue in effect for one year and from year to year thereafter only so
long as specifically approved annually, by (i) the Trust's Board of Trustees
and by a vote of the holders of a majority of the outstanding voting
securities of the Fund, or (ii) a majority of the Trustees who are not parties
to the Agreement or "interested persons" (as defined in the Act) of any such
party cast in person at a meeting called for the purpose of voting on such
approval.
13. AMENDMENTS. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought, and no material amendment of this agreement shall be
effective until approved by vote of the holders of a majority of the Fund's
outstanding voting securities.
14. SEVERABILITY. 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 hereto have caused this Agreement to be
executed and sealed by their officers thereunto duly authorized on the day and
year first above written.
ATTEST: THE BERKSHIRE FUNDS
By: /s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
------------------- ------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary President
ATTEST: BERKSHIRE CAPITAL HOLDINGS, INC.
By: /s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
------------------- ------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary Chairman & CEO
<PAGE>
CUSTODY AGREEMENT
BETWEEN
FIRSTAR BANK, N.A.
AND
THE BERKSHIRE FUNDS
CUSTODY AGREEMENT
This agreement (the "Agreement") is entered into as of the 11th day of
October, 1999, by and between The Berkshire Funds, a Delaware business trust
(the "Trust") and Firstar Bank, National Association, (the "Custodian"), a
national banking association having its principal office at 425 Walnut Street,
Cincinnati, Ohio, 45202.
WHEREAS, the Trust and the Custodian desire to enter into this Agreement
to provide for the custody and safekeeping of the assets of the Trust as
required by the Act (as hereafter defined).
THEREFORE, in consideration of the mutual promises hereinafter set forth,
the Trust and the Custodian agree as follows:
ARTICLE I
DEFINITIONS
The following words and phrases, when used in this Agreement, unless the
context otherwise requires, shall have the following meanings:
ACT - the Investment Company Act of 1940, as amended.
1934 Act - the Securities and Exchange Act of 1934, as amended.
AUTHORIZED PERSON - any person, whether or not any such person is an
officer or employee of the Trust, who is duly authorized by the Board of
Trustees of the Trust to give Oral Instructions and Written Instructions on
behalf of the Trust or any Fund, and named in Appendix A attached hereto and
as amended from time to time by resolution of the Board of Trustees, certified
by an Officer, and received by the Custodian.
BOARD OF TRUSTEES - the Trustees from time to time serving under the
Trust's Agreement and Declaration of Trust, as from time to time amended.
BOOK-ENTRY SYSTEM - a federal book-entry system as provided in Subpart O
of Treasury Circular No. 300, 31 CFR 306, in Subpart B of 31 CFT Part 350, or
in such book-entry regulations of federal agencies as are substantially in the
form of Subpart O.
Page -1-
<PAGE>
BUSINESS DAY - any day recognized as a settlement day by The New York
Stock Exchange, Inc. and any other day for which the Trust computes the net
asset value of Shares of any fund.
DEPOSITORY - The Depository Trust Company ("DTC"), a limited purpose
trust company, its successor(s) and its nominee(s). Depository shall include
any other clearing agency registered with the SEC under Section 17A of the
1934 Act which acts as a system for the central handling of Securities where
all Securities of any particular class or series of an issuer deposited within
the system are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of the Securities provided that
the Custodian shall have received a copy of a resolution of the Board of
Trustees, certified by an Officer, specifically approving the use of such
clearing agency as a depository for the Funds.
DIVIDEND AND TRANSFER AGENT - the dividend and transfer agent appointed,
from time to time, pursuant to a written agreement between the dividend and
transfer agent and the Trust.
FOREIGN SECURITIES - a) securities issued and sold primarily outside of
the United States by a foreign government, a national of any foreign country,
or a trust or other organization incorporated or organized under the laws of
any foreign country or; b) securities issued or guaranteed by the government
of the United States, by any state, by any political subdivision or agency
thereof, or by any entity organized under the laws of the United States or of
any state thereof, which have been issued and sold primarily outside of the
United States.
FUND - each series of the Trust listed in Appendix B and any additional
series added pursuant to Proper Instructions. A series is individually
referred to as a "Fund" and collectively referred to as the "Funds."
MONEY MARKET SECURITY - debt obligations issued or guaranteed as to
principal and/or interest by the government of the United States or agencies
or instrumentalities thereof, commercial paper, obligations (including
certificates of deposit, bankers' acceptances, repurchase agreements and
reverse repurchase agreements with respect to the same), and time deposits of
Page -2-
<PAGE>
domestic banks and thrift institutions whose deposits are insured by the
Federal Deposit Insurance Corporation, and short-term corporate obligations
where the purchase and sale of such securities normally require settlement in
federal funds or their equivalent on the same day as such purchase and sale,
all of which mature in not more than thirteen (13) months.
NASD - the National Association of Securities Dealers, Inc.
OFFICER - the Chairman, President, Secretary, Treasurer, any Vice
President, Assistant Secretary or Assistant Treasurer of the Trust.
ORAL INSTRUCTIONS - instructions orally transmitted to and received by
the Custodian from an Authorized Person (or from a person that the Custodian
reasonably believes in good faith to be an Authorized Person) and confirmed by
Written Instructions in such a manner that such Written Instructions are
received by the Custodian on the Business Day immediately following receipt of
such Oral Instructions.
PROPER INSTRUCTIONS - Oral Instructions or Written Instructions. Proper
Instructions may be continuing Written Instructions when deemed appropriate by
both parties.
PROSPECTUS - the Trust's then currently effective prospectus and
Statement of Additional Information, as filed with and declared effective from
time to time by the Securities and Exchange Commission.
SECURITY OR SECURITIES - Money Market Securities, common stock, preferred
stock, options, financial futures, bonds, notes, debentures, corporate debt
securities, mortgages, bank certificates of deposit, bankers' acceptances,
mortgage-backed securities or other obligations and any certificates,
receipts, warrants, or other instruments or documents representing rights to
receive, purchase, or subscribe for the same or evidencing or representing any
other rights or interest therein, or any similar property or assets that the
Custodian has the facilities to clear and to service.
Page -3-
<PAGE>
SEC - the Securities and Exchange Commission of the United States of
America.
SHARES - with respect to a Fund, the units of beneficial interest issued
by the Trust on account of such Fund.
TRUST - the business trust organized under the laws of Delaware which is
an open-end management investment company registered under the Act.
WRITTEN INSTRUCTIONS - communications in writing actually received by the
Custodian from an Authorized Person. A communication in writing includes a
communication by facsimile, telex or between electro-mechanical or electronic
devices (where the use of such devices have been approved by resolution of the
Trustee and the resolution is certified by an Officer and delivered to the
Custodian). All written communications shall be directed to the Custodian,
attention: Mutual Fund Custody Department.
ARTICLE II
APPOINTMENT; ACCEPTANCE; AND FURNISHING OF DOCUMENTS
A. APPOINTMENT OF CUSTODIAN. The Trust hereby constitutes and appoints
the Custodian as custodian of all Securities and cash owned by the Trust at
any time during the term of this Agreement.
B. ACCEPTANCE OF CUSTODIAN. The Custodian hereby accepts appointment as
such custodian and agrees to perform the duties thereof as hereinafter set
forth.
C. DOCUMENTS TO BE FURNISHED. The following documents, including any
amendments thereto, will be provided contemporaneously with the execution of
the Agreement, to the Custodian by the Trust:
1. A copy of the Declaration of Trust of the Trust certified by the
Secretary.
Page -4-
<PAGE>
2. A copy of the By-Laws of the Trust certified by the Secretary.
3. A copy of the resolution of the Board of Trustees of the Trust
appointing the Custodian, certified by the Secretary.
4. A copy of the then current Prospectus.
5. A Certificate of the President and Secretary of the Trust
setting forth the names and signatures of the current Officers of the Trust
and other Authorized Persons.
D. NOTICE OF APPOINTMENT OF DIVIDEND AND TRANSFER AGENT. The Trust agrees
to notify the Custodian in writing of the appointment, termination or change
in appointment of any Dividend and Transfer Agent.
ARTICLE III
RECEIPT OF TRUST ASSETS
A. DELIVERY OF MONEYS. During the term of this Agreement, the Trust will
deliver or cause to be delivered to the Custodian all moneys to be held by the
Custodian for the account of any Fund. The Custodian shall be entitled to
reverse any deposits made on any Fund's behalf where such deposits have been
entered and moneys are not finally collected within 30 days of the making of
such entry.
B. DELIVERY OF SECURITIES. During the term of this Agreement, the Trust
will deliver or cause to be delivered to the Custodian all Securities to be
held by the Custodian for the account of any Fund. The Custodian will not have
any duties or responsibilities with respect to such Securities until actually
received by the Custodian. The Custodian is hereby authorized by the Trust,
acting on behalf of the Fund, to actually deposit any assets of the Fund in
the Book-Entry System or in a Depository, provided, however, that the
Custodian shall always be accountable to the Trust for the assets of the Fund
so deposited. Assets deposited in the Book-Entry System or Depository will be
Page -5-
<PAGE>
represented in accounts which include only assets held by the Custodian for
customers, including but not limited to accounts in which the Custodian acts
in a fiduciary or representative capacity.
C. PAYMENTS FOR SHARES. As and when received, the Custodian shall deposit
to the account(s) of a Fund any and all payments for Shares of that Fund
issued or sold from time to time as they are received from the Trust's
distributor or Dividend and Transfer Agent or from the Trust itself.
D. DUTIES UPON RECEIPT. The Custodian shall not be responsible for any
Securities, moneys or other assets of any Fund until actually received by it.
E. VALIDITY OF TITLE. The Custodian shall not be responsible for the
title, validity or genuineness of any property or evidence of title thereto
received or delivered by it pursuant to this Agreement.
ARTICLE IV
DISBURSEMENT OF TRUST ASSETS
A. DECLARATION OF DIVIDENDS BY TRUST. The Trust shall furnish to the
Custodian a copy of the resolution of the Board of Trustees of the Trust,
certified by the Trust's Secretary, either (i) setting forth the date of the
declaration of any dividend or distribution in respect of Shares of any Fund
of the Trust, the date of payment thereof, the record date as of which the
Fund shareholders entitled to payment shall be determined, the amount payable
per share to Fund shareholders of record as of that date, and the total amount
to be paid by the Dividend and Transfer Agent on the payment date, or (ii)
authorizing the declaration of dividends and distributions in respect of
Shares of a Fund on a daily basis and authorizing the Custodian to rely on
Written Instructions setting forth the date of the declaration of any such
dividend or distribution, the date of payment thereof, the record date as of
which the Fund shareholders entitled to payment shall be determined, the
amount payable per share to Fund shareholders of record as of that date, and
the total amount to be paid by the Dividend and Transfer Agent on the payment
date.
Page -6-
<PAGE>
On the payment date specified in the resolution or Written Instructions
described above, the Custodian shall segregate such amounts from moneys held
for the account of the Fund so that they are available for such payment.
B. SEGREGATION OF REDEMPTION PROCEEDS. Upon receipt of Proper
Instructions so directing it, the Custodian shall segregate amounts necessary
for the payment of redemption proceeds to be made by the Dividend and Transfer
Agent from moneys held for the account of the Fund so that they are available
for such payment.
C. DISBURSEMENTS OF CUSTODIAN. Upon receipt of a Certificate directing
payment and setting forth the name and address of the person to whom such
payment is to be made, the amount of such payment, the name of the Fund from
which payment is to be made, and the purpose for which payment is to be made,
the Custodian shall disburse amounts as and when directed from the assets of
that Fund. The Custodian is authorized to rely on such directions and shall be
under no obligation to inquire as to the propriety of such directions.
D. PAYMENT OF CUSTODIAN FEES. Upon receipt of Written Instructions
directing payment, the Custodian shall disburse moneys from the assets of the
Trust in payment of the Custodian's fees and expenses as provided in Article
VIII hereof.
ARTICLE V
CUSTODY OF TRUST ASSETS
A. SEPARATE ACCOUNTS FOR EACH FUND. As to each Fund, the Custodian shall
open and maintain a separate bank account or accounts in the United States in
the name of the Trust coupled with the name of such Fund, subject only to
draft or order by the Custodian acting pursuant to the terms of this
Agreement, and shall hold all cash received by it from or for the account of
the Fund, other than cash maintained by the Fund in a bank account established
and used by the Fund in accordance with Rule 17f-3 under the Act. Moneys held
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by the Custodian on behalf of a Fund may be deposited by the Custodian to its
credit as Custodian in the banking department of the Custodian. Such moneys
shall be deposited by the Custodian in its capacity as such, and shall be
withdrawable by the Custodian only in such capacity.
B. SEGREGATION OF NON-CASH ASSETS. All Securities and non-cash property
held by the Custodian for the account of a Fund (other than Securities
maintained in a Depository or Book-entry System) shall be physically
segregated from other Securities and non-cash property in the possession of
the Custodian (including the Securities and non-cash property of the other
Funds) and shall be identified as subject to this Agreement.
C. SECURITIES IN BEARER AND REGISTERED FORM. All Securities held which
are issued or issuable only in bearer form, shall be held by the Custodian in
that form; all other Securities held for the Fund may be registered in the
name of the Custodian, any sub-custodian appointed in accordance with this
Agreement, or the nominee of any of them. The Trust agrees to furnish to the
Custodian appropriate instruments to enable the Custodian to hold, or deliver
in proper form for transfer, any Securities that it may hold for the account
of any Fund and which may, from time to time, be registered in the name of a
Fund.
D. DUTIES OF CUSTODIAN AS TO SECURITIES. Unless otherwise instructed by
the Trust, with respect to all Securities held for the Trust, the Custodian
shall on a timely basis (concerning items 1 and 2 below, as defined in the
Custodian's Standards of Service Guide, as amended from time to time, annexed
hereto as Appendix D):
1.) Collect all income due and payable with respect to such
Securities;
2.) Present for payment and collect amounts payable upon all
Securities which may mature or be called, redeemed, or retired, or otherwise
become payable;
3.) Surrender interim receipts or Securities in temporary form for
Securities in definitive form; and
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4.) Execute, as Custodian, any necessary declarations or
certificates of ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority, including any foreign taxing
authority, now or hereafter in effect.
E. CERTAIN ACTIONS UPON WRITTEN INSTRUCTIONS. Upon receipt of a Written
Instructions and not otherwise, the Custodian shall:
1.) Execute and deliver to such persons as may be designated in such
Written Instructions proxies, consents, authorizations, and any other
instruments whereby the authority of the Trust as beneficial owner of any
Securities may be exercised;
2.) Deliver any Securities in exchange for other Securities or cash
issued or paid in connection with the liquidation, reorganization,
refinancing, merger, consolidation, or recapitalization of any trust, or the
exercise of any conversion privilege;
3.) Deliver any Securities to any protective committee,
reorganization committee, or other person in connection with the
reorganization, refinancing, merger, consolidation, recapitalization, or sale
of assets of any trust, and receive and hold under the terms of this Agreement
such certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
4.) Make such transfers or exchanges of the assets of any Fund and
take such other steps as shall be stated in the Written Instructions to be for
the purpose of effectuating any duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the Trust; and
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5.) Deliver any Securities held for any Fund to the depository agent
for tender or other similar offers.
F. CUSTODIAN TO DELIVER PROXY MATERIALS. The Custodian shall promptly
deliver to the Trust all notices, proxy material and executed but unvoted
proxies pertaining to shareholder meetings of Securities held by any Fund. The
Custodian shall not vote or authorize the voting of any Securities or give any
consent, waiver or approval with respect thereto unless so directed by Written
Instructions.
G. CUSTODIAN TO DELIVER TENDER OFFER INFORMATION. The Custodian shall
promptly deliver to the Trust all information received by the Custodian and
pertaining to Securities held by any Fund with respect to tender or exchange
offers, calls for redemption or purchase, or expiration of rights. If the
Trust desires to take action with respect to any tender offer, exchange offer
or other similar transaction, the Trust shall notify the Custodian at least
five Business Days prior to the date on which the Custodian is to take such
action. The Trust will provide or cause to be provided to the Custodian all
relevant information for any Security which has unique put/option provisions
at least five Business Days prior to the beginning date of the tender period.
H. CUSTODIAN TO DELIVER SECURITY AND TRANSACTION INFORMATION. On each
Business Day that the Federal Reserve Bank is open, the Custodian shall
furnish the Trust with a detailed statement of monies held for the Fund under
this Agreement and with confirmations and a summary of all transfers to or
from the account of the Fund. At least monthly and from time to time, the
Custodian shall furnish the Trust with a detailed statement of Securities held
for the Fund under this Agreement. Where Securities are transferred to the
account of the Fund without physical delivery, the Custodian shall also
identify as belonging to the Fund a quantity of Securities in a fungible bulk
of Securities registered in the name of the Custodian (or its nominee) or
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shown on the Custodian's account on the books of the Book-Entry System or the
Depository. With respect to information provided by this section, it shall not
be necessary for the Custodian to provide notice as described by Article XI
Section F. Notices to Trust; it shall be sufficient to communicate by such
means as shall be mutually agreeable to the Trust and the Custodian.
ARTICLE VI
PURCHASE AND SALE OF SECURITIES
A. PURCHASE OF SECURITIES. Promptly after each purchase of Securities by
the Trust, the Trust shall deliver to the Custodian (i) with respect to each
purchase of Securities which are not Money Market Securities, Written
Instructions, and (ii) with respect to each purchase of Money Market
Securities, Proper Instructions, specifying with respect to each such purchase
the;
1.) name of the issuer and the title of the Securities,
2.) the number of shares, principal amount purchased (and accrued
interest, if any) or other units purchased,
3.) date of purchase and settlement,
4.) purchase price per unit,
5.) total amount payable,
6.) name of the person from whom, or the broker through which, the
purchase was made,
7.) the name of the person to whom such amount is payable, and
8.) the Fund for which the purchase was made.
The Custodian shall, against receipt of Securities purchased by or for the
Trust, pay out of the moneys held for the account of such Fund the total
amount specified in the Written Instructions, or Oral Instructions, if
applicable, to the person named therein. The Custodian shall not be under any
obligation to pay out moneys to cover the cost of a purchase of Securities for
a Fund, if in the relevant Fund custody account there is insufficient cash
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available to the Fund for which such purchase was made. With respect to any
repurchase agreement transaction for the Funds, the Custodian shall assure
that the collateral reflected on the transaction advice is received by the
Custodian.
B. SALE OF SECURITIES. Promptly after each sale of Securities by a Fund,
the Trust shall deliver to the Custodian (i) with respect to each sale of
Securities which are not Money Market Securities, Written Instructions, and
(ii) with respect to each sale of Money Market Securities, Proper
Instructions, specifying with respect to each such sale the:
1.) name of the issuer and the title of the Securities,
2.) number of shares, principal amount sold (and accrued interest,
if any) or other units sold,
3.) date of sale and settlement,
4.) sale price per unit,
5.) total amount receivable,
6.) name of the person to whom, or the broker through which, the
sale was made,
7.) name of the person to whom such Securities are to be delivered,
and
8.) Fund for which the sale was made.
The Custodian shall deliver the Securities against receipt of the total amount
specified in the Written Instructions, or Oral Instructions, if applicable.
Notwithstanding any other provision of this Agreement, the Custodian, when
properly instructed as provided herein to deliver Securities against payment,
shall be entitled, if in accordance with generally accepted market practice,
to deliver such Securities prior to actual receipt of final payment therefor.
In any such case, the Fund for which the Securities were delivered shall bear
the risk that final payment for the Securities may not be made or that the
Securities may be returned or otherwise held or disposed of by or through the
person to whom they were delivered, and the Custodian shall have no liability
for any of the foregoing.
C. DELIVERY VERSUS PAYMENT FOR PURCHASES AND SALES. Purchases and sales
of Securities effected by the Custodian will be made on a delivery versus
payment basis. The Custodian may, in its sole discretion, upon receipt of
Written Instructions, elect to settle a purchase or sale transaction in some
other manner, but only upon receipt of acceptable indemnification from the
Fund.
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D. PAYMENT ON SETTLEMENT DATE. On contractual settlement date, the
account of the Fund will be charged for all purchased Securities settling on
that day, regardless of whether or not delivery is made. Likewise, on
contractual settlement date, proceeds from the sale of Securities settling
that day will be credited to the account of the Fund, irrespective of
delivery. Any such credit shall be conditioned upon actual receipt by
Custodian of final payment and may be reversed if final payment is not
actually received in full.
E. SEGREGATED ACCOUNTS. The Custodian shall, upon receipt of Proper
Instructions so directing it, establish and maintain a segregated account or
accounts for and on behalf of a Fund. Cash and/or Securities may be
transferred into such account or accounts for specific purposes, to-wit:
1.) in accordance with the provision of any agreement among the
Trust, the Custodian, and a broker-dealer registered under the 1934 Act, and
also a member of the NASD (or any futures commission merchant registered under
the Commodity Exchange Act), relating to compliance with the rules of the
Options Clearing Corporation and of any registered national securities
exchange, the Commodity Futures Trading Commission, any registered contract
market, or any similar organization or organizations requiring escrow or other
similar arrangements in connection with transactions by the Fund;
2.) for purposes of segregating cash or Securities in connection
with options purchased, sold, or written by the Fund or commodity futures
contracts or options thereon purchased or sold by the Fund;
3.) for the purpose of compliance by the Fund with the procedures
required for reverse repurchase agreements, firm commitment agreements,
standby commitment agreements, and short sales by Act Release No. 10666, or
any subsequent release or releases or rule of the SEC relating to the
maintenance of segregated accounts by registered investment companies;
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4.) for the purpose of segregating collateral for loans of
Securities made by the Fund; and
5.) for other proper corporate purposes, but only upon receipt of,
in addition to Proper Instructions, a copy of a resolution of the Board of
Trustees, certified by an Officer, setting forth the purposes of such
segregated account.
Each segregated account established hereunder shall be established and
maintained for a single Fund only. All Proper Instructions relating to a
segregated account shall specify the Fund involved.
F. ADVANCES FOR SETTLEMENT. Except as otherwise may be agreed upon by the
parties hereto, the Custodian shall not be required to comply with any Written
Instructions to settle the purchase of any Securities on behalf of a Fund
unless there is sufficient cash in the account(s) pertaining to such Fund at
the time or to settle the sale of any Securities from such an account(s)
unless such Securities are in deliverable form. Notwithstanding the foregoing,
if the purchase price of such Securities exceeds the amount of cash in the
account(s) at the time of such purchase, the Custodian may, in its sole
discretion, advance the amount of the difference in order to settle the
purchase of such Securities. The amount of any such advance shall be deemed a
loan from the Custodian to the Trust payable on demand and bearing interest
accruing from the date such loan is made up to but not including the date such
loan is repaid at the rate per annum customarily charged by the Custodian on
similar loans.
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ARTICLE VII
TRUST INDEBTEDNESS
A. BORROWINGS. In connection with any borrowings by the Trust, the Trust
will cause to be delivered to the Custodian by a bank or broker requiring
Securities as collateral for such borrowings (including the Custodian if the
borrowing is from the Custodian), a notice or undertaking in the form
currently employed by such bank or broker setting forth the amount of
collateral. The Trust shall promptly deliver to the Custodian Written
Instructions specifying with respect to each such borrowing: (a) the name of
the bank or broker, (b) the amount and terms of the borrowing, which may be
set forth by incorporating by reference an attached promissory note duly
endorsed by the Trust, or a loan agreement, (c) the date, and time if known,
on which the loan is to be entered into, (d) the date on which the loan
becomes due and payable, (e) the total amount payable to the Trust on the
borrowing date, and (f) the description of the Securities securing the loan,
including the name of the issuer, the title and the number of shares or other
units or the principal amount. The Custodian shall deliver on the borrowing
date specified in the Written Instructions the required collateral against the
lender's delivery of the total loan amount then payable, provided that the
same conforms to that which is described in the Written Instructions. The
Custodian shall deliver, in the manner directed by the Trust, such Securities
as additional collateral, as may be specified in Written Instructions, to
secure further any transaction described in this Article VII. The Trust shall
cause all Securities released from collateral status to be returned directly
to the Custodian and the Custodian shall receive from time to time such return
of collateral as may be tendered to it.
The Custodian may, at the option of the lender, keep such collateral in
its possession, subject to all rights therein given to the lender because of
the loan. The Custodian may require such reasonable conditions regarding such
collateral and its dealings with third-party lenders as it may deem
appropriate.
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B. ADVANCES. With respect to any advances of cash made by the Custodian
to or for the benefit of a Fund for any purpose which results in the Fund
incurring an overdraft at the end of any Business Day, such advance shall be
repayable immediately upon demand made by the Custodian at any time.
ARTICLE VIII
CONCERNING THE CUSTODIAN
A. LIMITATIONS ON LIABILITY OF CUSTODIAN. Except as otherwise provided
herein, the Custodian shall not be liable for any loss or damage, including
counsel fees, resulting from its action or omission to act or otherwise,
except for any such loss or damage arising out of its own gross negligence or
willful misconduct. The Trust, on behalf of the Fund and only from assets of
the Fund (or insurance purchased by the Trust with respect to its liabilities
on behalf of the Fund hereunder), shall defend, indemnify and hold harmless
the Custodian and its directors, officers, employees and agents with respect
to any loss, claim, liability or cost (including reasonable attorneys' fees)
arising or alleged to arise from or relating to the Trust's duties hereunder
or any other action or inaction of the Trust or its Trustees, officers,
employees or agents, except such as may arise from the negligent action,
omission, willful misconduct or breach of this Agreement by the Custodian, its
directors, officers, employees or agents. The Custodian shall defend,
indemnify and hold harmless the Trust and its trustees, officers, employees or
agents with respect to any loss, claim, liability or cost (including
reasonable attorneys' fees) arising or alleged to arise from or relating to
the Custodian's duties as specifically set forth in this agreement with
respect to the Fund hereunder or any other action or inaction of the Custodian
or its directors, officers, employees, agents, nominees, or Sub-Custodians as
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to the Fund, except such as may arise from the negligent action, omission or
willful misconduct of the Trust, its trustees, officers, employees, or agents.
The Custodian may, with respect to questions of law apply for and obtain the
advice and opinion of counsel to the Trust at the expense of the Fund, or of
its own counsel at its own expense, and shall be fully protected with respect
to anything done or omitted by it in good faith in conformity with the advice
or opinion of counsel to the Trust, and shall be similarly protected with
respect to anything done or omitted by it in good faith in conformity with
advice or opinion of its counsel, unless counsel to the Fund shall, within a
reasonable time after being notified of legal advice received by the
Custodian, have a differing interpretation of such question of law. The
Custodian shall be liable to the Trust for any proximate loss or damage
resulting from the use of the Book-Entry System or any Depository arising by
reason of any negligence, misfeasance or misconduct on the part of the
Custodian or any of its employees, agents, nominees or Sub-Custodians, but not
for any special, incidental, consequential, or punitive damages; provided,
however, that nothing contained herein shall preclude recovery by the Trust,
on behalf of the Fund, of principal and of interest to the date of recovery on
Securities incorrectly omitted from the Fund's account or penalties imposed on
the Trust, in connection with the Fund, for any failures to deliver
Securities. In any case in which one party hereto may be asked to indemnify
the other or hold the other harmless, the party from whom indemnification is
sought (the "Indemnifying Party") shall be advised of all pertinent facts
concerning the situation in question, and the party claiming a right to
indemnification (the "Indemnified Party") will use reasonable care to identify
and notify the Indemnifying Party promptly concerning any situation which
presents or appears to present a claim for indemnification against the
Indemnifying Party. The Indemnifying Party shall have the option to defend the
Indemnified Party against any claim which may be the subject of
indemnification, and in the event the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the Indemnifying Party and
satisfactory to the Indemnified Party and the Indemnifying Party will so
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notify the Indemnified Party and thereupon such Indemnifying Party shall take
over the complete defense of the claim and the Indemnifying Party shall
sustain no further legal or other expenses in such situation for which
indemnification has been sought under this paragraph, except the expenses of
any additional counsel retained by the Indemnified Party. In no case shall any
party claiming the right to indemnification confess any claim or make any
compromise in any case in which the other party has been asked to indemnify
such party (unless such confession or compromise is made with such other
party's prior written consent). The provisions of this section VIII. A. shall
survive the termination of this Agreement.
B. ACTIONS NOT REQUIRED BY CUSTODIAN. Without limiting the generality of
the foregoing, the Custodian, acting in the capacity of Custodian hereunder,
shall be under no obligation to inquire into, and shall not be liable for:
1.) The validity of the issue of any Securities purchased by or for
the account of any Fund, the legality of the purchase thereof, or the
propriety of the amount paid therefor;
2.) The legality of the sale of any Securities by or for the account
of any Fund, or the propriety of the amount for which the same are sold;
3.) The legality of the issue or sale of any Shares of any Fund, or
the sufficiency of the amount to be received therefor;
4.) The legality of the redemption of any Shares of any Fund, or the
propriety of the amount to be paid therefor;
5.) The legality of the declaration or payment of any dividend by
the Trust in respect of Shares of any Fund;
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6.) The legality of any borrowing by the Trust on behalf of the
Trust or any Fund, using Securities as collateral;
7.) Whether the Trust or a Fund is in compliance with the 1940 Act,
the regulations thereunder, the provisions of the Trust's charter documents or
by-laws, or its investment objectives and policies as then in effect.
C. NO DUTY TO COLLECT AMOUNTS DUE FROM DIVIDEND AND TRANSFER AGENT. The
Custodian shall not be under any duty or obligation to take action to effect
collection of any amount due to the Trust from any Dividend and Transfer Agent
of the Trust nor to take any action to effect payment or distribution by any
Dividend and Transfer Agent of the Trust of any amount paid by the Custodian
to any Dividend and Transfer Agent of the Trust in accordance with this
Agreement.
D. NO ENFORCEMENT ACTIONS. Notwithstanding Section D of Article V, the
Custodian shall not be under any duty or obligation to take action, by legal
means or otherwise, to effect collection of any amount, if the Securities upon
which such amount is payable are in default, or if payment is refused after
due demand or presentation, unless and until (i) it shall be directed to take
such action by Written Instructions and (ii) it shall be assured to its
satisfaction (including prepayment thereof) of reimbursement of its costs and
expenses in connection with any such action.
E. AUTHORITY TO USE AGENTS AND SUB-CUSTODIANS. The Trust acknowledges and
hereby authorizes the Custodian to hold Securities through its various agents
described in Appendix C annexed hereto. The Fund hereby represents that such
authorization has been duly approved by the Board of Trustees of the Trust as
required by the Act.
In addition, the Trust acknowledges that the Custodian may appoint one or
more financial institutions, as agent or agents or as sub-custodian or
sub-custodians, including, but not limited to, banking institutions located in
foreign countries, for the purpose of holding Securities and moneys at any
time owned by the Fund. The Custodian shall not be relieved of any obligation
or liability under this Agreement in connection with the appointment or
activities of such agents or sub-custodians. Any such agent or sub-custodian
shall be qualified to serve as such for assets of investment companies
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registered under the Act. The Funds shall reimburse the Custodian for all
costs incurred by the Custodian in connection with opening accounts with any
such agents or sub-custodians. Upon request, the Custodian shall promptly
forward to the Trust any documents it receives from any agent or sub-custodian
appointed hereunder which may assist trustees of registered investment
companies to fulfill their responsibilities under Rule 17f-5 of the Act.
F. NO DUTY TO SUPERVISE INVESTMENTS. The Custodian shall not be under any
duty or obligation to ascertain whether any Securities at any time delivered
to or held by it for the account of the Trust are such as properly may be held
by the Trust under the provisions of the Articles of Incorporation and the
Trust's By-Laws.
G. ALL RECORDS CONFIDENTIAL. The Custodian shall treat all records and
other information relating to the Trust and the assets of all Funds as
confidential and shall not disclose any such records or information to any
other person unless (i) the Trust shall have consented thereto in writing or
(ii) such disclosure is required by law.
H. COMPENSATION OF CUSTODIAN. The Custodian shall be entitled to receive
and the Trust agrees to pay to the Custodian such compensation as shall be
determined pursuant to Appendix E attached hereto, or as shall be determined
pursuant to amendments to Appendix E. The Custodian shall be entitled to
charge against any money held by it for the account of any Fund, the amount of
any of its fees, any loss, damage, liability or expense, including counsel
fees. The expenses which the Custodian may charge against the account of a
Fund include, but are not limited to, the expenses of agents or Sub-Custodians
incurred in settling transactions involving the purchase and sale of
Securities of the Fund.
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I. RELIANCE UPON INSTRUCTIONS. The Custodian shall be entitled to rely
upon any Proper Instructions if such reliance is made in good faith. The Trust
agrees to forward to the Custodian Written Instructions confirming Oral
Instructions in such a manner so that such Written Instructions are received
by the Custodian, whether by hand delivery, telex, facsimile or otherwise, on
the same Business Day on which such Oral Instructions were given. The Trust
agrees that the failure of the Custodian to receive such confirming
instructions shall in no way affect the validity of the transactions or
enforceability of the transactions hereby authorized by the Trust. The Trust
agrees that the Custodian shall incur no liability to the Trust for acting
upon Oral Instructions given to the Custodian hereunder concerning such
transactions.
J. BOOKS AND RECORDS. The Custodian will (i) set up and maintain proper
books of account and complete records of all transactions in the accounts
maintained by the Custodian hereunder in such manner as will meet the
obligations of the Fund under the Act, with particular attention to Section 31
thereof and Rules 3la-1 and 3la-2 thereunder and those records are the
property of the Trust, and (ii) preserve for the periods prescribed by
applicable Federal statute or regulation all records required to be so
preserved. All such books and records shall be the property of the Trust, and
shall be available, upon request, for inspection by duly authorized officers,
employees or agents of the Trust and employees of the SEC.
K. INTERNAL ACCOUNTING CONTROL SYSTEMS. The Custodian shall send to the
Trust any report received on the systems of internal accounting control of the
Custodian, or its agents or sub-custodians, as the Trust may reasonably
request from time to time.
L. NO MANAGEMENT OF ASSETS BY CUSTODIAN. The Custodian performs only the
services of a custodian and shall have no responsibility for the management,
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investment or reinvestment of the Securities or other assets from time to time
owned by any Fund. The Custodian is not a selling agent for Shares of any Fund
and performance of its duties as custodian shall not be deemed to be a
recommendation to any Fund's depositors or others of Shares of the Fund as an
investment. The Custodian shall have no duties or obligations whatsoever
except such duties and obligations as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied in this Agreement
against the Custodian.
M. ASSISTANCE TO TRUST. The Custodian shall take all reasonable action,
that the Trust may from time to time request, to assist the Trust in obtaining
favorable opinions from the Trust's independent accountants, with respect to
the Custodian's activities hereunder, in connection with the preparation of
the Fund's Form N-IA, Form N-SAR, or other annual reports to the SEC.
N. GRANT OF SECURITY INTEREST. The Trust hereby pledges to and grants the
Custodian a security interest in the assets of any Fund to secure the payment
of any liabilities of the Trust to the Custodian, whether acting in its
capacity as Custodian or otherwise, or on account of money borrowed from the
Custodian. This pledge is in addition to any other pledge of collateral by the
Trust to the Custodian.
ARTICLE IX
INITIAL TERM; TERMINATION
A. INITIAL TERM. This Agreement shall become effective as of its
execution and shall continue in full force and effect until terminated as
hereinafter provided.
B. TERMINATION. Either party hereto may terminate this Agreement after
the Initial Term for any reason by giving to the other party a notice in
writing specifying the date of such termination, which shall be not less than
ninety (90) days after the date of giving of such notice. If such notice is
given by the Trust, it shall be accompanied by a copy of a resolution of the
Board of Trustees of the Trust, certified by the Secretary of the Trust,
electing to terminate this Agreement and designating a successor custodian or
custodians each of which shall be a bank or trust company having not less than
$100,000,000 aggregate capital, surplus, and undivided profits. In the event
such notice is given by the Custodian, the Trust shall, on or before the
termination date, deliver to the Custodian a copy of a resolution of the Board
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of Trustees of the Trust, certified by the Secretary, designating a successor
custodian or custodians to act on behalf of the Trust. In the absence of such
designation by the Trust, the Custodian may designate a successor custodian
which shall be a bank or trust company having not less than $100,000,000
aggregate capital, surplus, and undivided profits. Upon the date set forth in
such notice this Agreement shall terminate, and the Custodian, provided that
it has received a notice of acceptance by the successor custodian, shall
deliver, on that date, directly to the successor custodian all Securities and
moneys then owned by the Fund and held by it as Custodian. Upon termination of
this Agreement, the Trust shall pay to the Custodian on behalf of the Trust
such compensation as may be due as of the date of such termination. The Trust
agrees on behalf of the Trust that the Custodian shall be reimbursed for its
reasonable costs in connection with the termination of this Agreement.
C. FAILURE TO DESIGNATE SUCCESSOR CUSTODIAN. If a successor custodian is
not designated by the Trust, or by the Custodian in accordance with the
preceding paragraph, or the designated successor cannot or will not serve, the
Trust shall, upon the delivery by the Custodian to the Trust of all Securities
(other than Securities held in the Book-Entry System which cannot be delivered
to the Trust) and moneys then owned by the Trust, be deemed to be the
custodian for the Trust, and the Custodian shall thereby be relieved of all
duties and responsibilities pursuant to this Agreement, other than the duty
with respect to Securities held in the Book-Entry System, which cannot be
delivered to the Trust, which shall be held by the Custodian in accordance
with this Agreement.
Page -23-
<PAGE>
ARTICLE X
FORCE MAJEURE
Neither the Custodian nor the Trust shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation, acts of God; earthquakes; fires;
floods; wars; civil or military disturbances; sabotage; strikes; epidemics;
riots; power failures; computer failure and any such circumstances beyond its
reasonable control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that the Custodian, in the event of a
failure or delay, shall use its best efforts to ameliorate the effects of any
such failure or delay.
ARTICLE XI
MISCELLANEOUS
A. DESIGNATION OF AUTHORIZED PERSONS. Appendix A sets forth the names and
the signatures of all Authorized Persons as of this date, as certified by the
Secretary of the Trust. The Trust agrees to furnish to the Custodian a new
Appendix A in form similar to the attached Appendix A, if any present
Authorized Person ceases to be an Authorized Person or if any other or
additional Authorized Persons are elected or appointed. Until such new
Appendix A shall be received, the Custodian shall be fully protected in acting
under the provisions of this Agreement upon Oral Instructions or signatures of
the then current Authorized Persons as set forth in the last delivered
Appendix A.
B. LIMITATION OF PERSONAL LIABILITY. No recourse under any obligation of
this Agreement or for any claim based thereon shall be had against any
organizer, shareholder, officer, trustee, past, present or future as such, of
the Trust or of any predecessor or successor, either directly or through the
Trust or any such predecessor or successor, whether by virtue of any
constitution, statute or rule of law or equity, or by the enforcement of any
Page -24-
<PAGE>
assessment or penalty or otherwise; it being expressly agreed and understood
that this Agreement and the obligations thereunder are enforceable solely
against the Trust, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the organizers, shareholders, officers, or
trustees of the Trust or of any predecessor or successor, or any of them as
such. To the extent that any such liability exists, it is hereby expressly
waived and released by the Custodian as a condition of, and as a consideration
for, the execution of this Agreement.
C. AUTHORIZATION BY BOARD. The obligations set forth in this Agreement as
having been made by the Trust have been made by the Board of Trustees, acting
as such Trustees for and on behalf of the Trust, pursuant to the authority
vested in them under the laws of the State of Delaware, the Declaration of
Trust and the By-Laws of the Trust. This Agreement has been executed by
Officers of the Trust as officers, and not individually, and the obligations
contained herein are not binding upon any of the Trustees, Officers, agents or
holders of shares, personally, but bind only the Trust and then only to the
extent of the assets of the Trust.
D. CUSTODIAN'S CONSENT TO USE OF ITS NAME. The Trust shall obtain the
Custodian's consent prior to the publication and/or dissemination or
distribution, of the Prospectus and any other documents (including advertising
material) specifically mentioning the Custodian (other than merely by name and
address).
E. NOTICES TO CUSTODIAN. Any notice or other instrument in writing,
authorized or required by this Agreement to be given to the Custodian, shall
be sufficiently given if addressed to the Custodian and mailed or delivered to
it at its offices at Firstar Bank Center, 425 Walnut Street, M. L. 6118,
Cincinnati, Ohio 45202, attention Mutual Fund Custody Department, or at such
other place as the Custodian may from time to time designate in writing.
Page -25-
<PAGE>
F. NOTICES TO TRUST. Any notice or other instrument in writing,
authorized or required by this Agreement to be given to the Trust shall be
sufficiently given when delivered to the Trust or on the second Business Day
following the time such notice is deposited in the U.S. mail postage prepaid
and addressed to the Trust at its office at 475 Milan Drive, Suite 103, San
Jose, California 95134-2453 or at such other place as the Trust may from time
to time designate in writing.
G. AMENDMENTS IN WRITING. This Agreement, with the exception of the
Appendices, may not be amended or modified in any manner except by a written
agreement executed by both parties with the same formality as this Agreement,
and authorized and approved by a resolution of the Board of Trustees of the
Trust.
H. SUCCESSORS AND ASSIGNS. This Agreement shall extend to and shall be
binding upon the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by the Trust or
by the Custodian, and no attempted assignment by the Trust or the Custodian
shall be effective without the written consent of the other party hereto.
I. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Ohio.
J. JURISDICTION. Any legal action, suit or proceeding to be instituted by
either party with respect to this Agreement shall be brought by such party
exclusively in the courts of the State of Ohio or in the courts of the United
States for the Southern District of Ohio, and each party, by its execution of
this Agreement, irrevocably (i) submits to such jurisdiction and (ii) consents
to the service of any process or pleadings by first class U.S. mail, postage
prepaid and return receipt requested, or by any other means from time to time
authorized by the laws of such jurisdiction.
K. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
Page -26-
<PAGE>
L. HEADINGS. The headings of paragraphs in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective Officers, thereunto duly authorized as of the day
and year first above written.
WITNESS: TRUST:
THE BERKSHIRE FUNDS
/s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
- - ------------------- ---------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary Chairman
WITNESS: CUSTODIAN:
FIRSTAR BANK, N.A.
By: /s/ Marsha A. Croxton
- - ------------------- ------------------------
Marsha A. Croxton
Senior Trust Officer
Page -27-
<PAGE>
APPENDIX A
AUTHORIZED PERSONS SPECIMEN SIGNATURES
Chairman: Malcolm R. Fobes III /s/ Malcolm R. Fobes III
-------------------- -----------------------
President:
-------------------- -----------------------
Vice President:
-------------------- -----------------------
Secretary: Ronald G. Seger /s/ Ronald G. Seger
-------------------- -----------------------
Assistant
Secretary:
-------------------- -----------------------
Treasurer:
-------------------- -----------------------
Assistant
Treasurer:
-------------------- -----------------------
Adviser Employees:
-------------------- -----------------------
Transfer Agent/Fund Accountant
Employees:
-------------------- -----------------------
-------------------- -----------------------
-------------------- -----------------------
-------------------- -----------------------
* Authority restricted; does not include:
-----------------------------
Page -28-
<PAGE>
APPENDIX B
SERIES OF THE TRUST
BERKSHIRE FOCUS FUND
BERKSHIRE TECHNOLOGY FUND
Page -29-
<PAGE>
APPENDIX C
AGENTS OF THE CUSTODIAN
The following agents are employed currently by Firstar Bank, N.A. for
securities processing and control ...
The Depository Trust Company (New York)
7 Hanover Square
New York, NY 10004
The Federal Reserve Bank
Cincinnati and Cleveland Branches
Bank of New York
1 Wall Street
New York, NY 10286
(For Foreign Securities and certain non-DTC eligible Securities)
Page -30-
<PAGE>
APPENDIX D
FIRSTAR INSTITUTIONAL CUSTODY SERVICES
STANDARDS OF SERVICE GUIDE
Firstar Bank, N.A. is committed to providing superior quality service
to all customers and their agents at all times. We have compiled this guide as
a tool for our clients to determine our standards for the processing of
security settlements, payment collection, and capital change transactions.
Deadlines recited in this guide represent the times required for Firstar Bank
to guarantee processing. Failure to meet these deadlines will result in
settlement at our client's risk. In all cases, Firstar Bank will make every
effort to complete all processing on a timely basis.
Firstar Bank is a direct participant of the Depository Trust Company,
a direct member of the Federal Reserve Bank of Cleveland, and utilizes the
Bankers Trust Company as its agent for ineligible and foreign securities.
For corporate reorganizations, Firstar Bank utilizes SEI's Reorg
Source, Financial Information, Inc., XCITEK, DTC Important Notices, and the
WALL STREET JOURNAL,
For bond calls and mandatory puts, Firstar Bank utilizes SEI's Bond
Source, Kenny Information Systems, Standard & Poor's Corporation, and DTC
Important Notices. Firstar Bank will not notify clients of optional put
opportunities.
Any securities delivered free to Firstar Bank or its agents must be
received three (3) business days prior to any payment or settlement in order
for the Firstar Bank standards of service to apply.
Should you have any questions regarding the information contained in
this guide, please feel free to contact your account representative.
The information contained in this Standards of Service Guide
is subject to change. Should any changes be made Firstar Bank
will provide you with an updated copy of its Standards of
Service Guide.
<PAGE>
<TABLE>
<CAPTION>
FIRSTAR BANK SECURITY SETTLEMENT STANDARDS
- - -------------------------------------------------------------------------------
TRANSACTION TYPE INSTRUCTIONS DEADLINES* DELIVERY INSTRUCTIONS
<S> <C> <C>
DTC 1:30 P.M. on Settlement Date DTC Participant #2803
Agent Bank ID 27895
Institutional # __________
For Account # __________
Federal Reserve Book Entry 12:30 P.M. on Settlement Date Federal Reserve Bank of Cinti/Trust
for Firstar Bank, N.A. ABA# 042000013
For Account # __________
Federal Reserve Book Entry 1:00 P.M. on Settlement Date Federal Reserve Bank of Cinti/Spec
(Repurchase Agreement for Firstar Bank, N.A. ABA# 042000013
Collateral Only) For Account # __________
PTC Securities 12:00 P.M. on Settlement Date PTC For Account BYORK
(GNMA Book Entry) Firstar Bank/117612
Physical Securities 9:30 A.M. EST on Settlement Date Bank of New York
(for Deliveries, by 4:00 P.M. One Wall Street-3rd Floor - Window A
on Settlement Date minus 1) New York, NY 10286
For account of Firstar Bank
Cust#117612
Attn: Donald Hoover
CEDEL/EURO-CLEAR 11:00 A.M. on Settlement Date Cedel a/c 55021
minus 2 FFC: a/c 387000
Firstar Bank/Global Omnibus
Cash Wire Transfer 3:00 P.M. Firstar Bank, N.A. Cinti/Trust
ABA# 042000013
Credit Account #9901877
Further Credit to __________
Account # __________
</TABLE>
*All times listed are Eastern Standard Time.
<PAGE>
FIRSTAR BANK PAYMENT STANDARDS
SECURITY TYPE INCOME PRINCIPAL
Equities Payable Date
Municipal Bonds* Payable Date Payable Date
Corporate Bonds* Payable Date Payable Date
Federal Reserve Bank
Book Entry* Payable Date Payable Date
PTC GNMA's (P&I) Payable Date + 1 Payable Date + 1
CMOs*
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
SBA Loan Certificates When Received When Received
Unit Investment Trust Payable Date Payable Date
Certificates*
Certificates of Deposit* Payable Date + 1 Payable Date + 1
Limited Partnerships When Received When Received
Foreign Securities When Received When Received
*Variable Rate Securities
Federal Reserve Bank
Book Entry Payable Date Payable Date
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
NOTE: If a payable date falls on a weekend or bank holiday, payment will be
made on the immediately following business day.
<PAGE>
<TABLE>
<CAPTION>
FIRSTAR BANK CORPORATE REORGANIZATION STANDARDS
TYPE OF ACTION NOTIFICATION TO CLIENT DEADLINE FOR CLIENT TRANSACTION
INSTRUCTIONS TO FIRSTAR BANK POSTING
<S> <C> <C> <C>
Rights, Warrants, Later of 10 business days prior 5 business days prior to Upon receipt
and Optional Mergers to expiration or receipt of notice expiration
Mandatory Puts with Later of 10 business days prior 5 business days prior to Upon receipt
Option to Retain to expiration or receipt of notice expiration
Class Actions 10 business days prior to 5 business days prior to Upon receipt
expiration date expiration
Voluntary Tenders, Later of 10 business days prior 5 business days prior to Upon receipt
Exchanges, to expiration or receipt of notice expiration
and Conversions
Mandatory Puts, Defaults, At posting of funds or securities None Upon receipt
Liquidations, Bankruptcies, received
Stock Splits, Mandatory
Exchanges
Full and Partial Calls Later of 10 business days prior None Upon receipt
to expiration or receipt of notice
</TABLE>
NOTE: Fractional shares/par amounts resulting from any of the above will
be sold.
<PAGE>
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT ("Agreement"), is made and entered into
this 19th day of December, 1999, by and between The Berkshire Funds, a
Delaware business trust (the "Trust"), and Berkshire Capital Holdings, Inc., a
California corporation (the "Administrator").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as a non-diversified open-end
management investment company and is registered as such under the Investment
Company Act of 1940, as amended (the "Act"); and
WHEREAS, the Administrator is engaged in the business of rendering
administrative and supervisory services to investment companies; and
WHEREAS, the Trust desires to retain the Administrator to render
supervisory and corporate administrative services to the Berkshire Focus Fund
(the "Fund") in the manner and on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT OF THE ADMINISTRATOR. The Trust hereby employs the
Administrator to administer the affairs of the Fund subject to the direction
of the Board of Trustees and the officers of the Trust, for the period and on
the terms hereinafter set forth. The Administrator hereby accepts such
employment and agrees during such period to render the services and to assume
the obligations herein set forth for the compensation herein provided. The
Administrator shall devote such time as is necessary to carry out and shall at
all times faithfully, with diligence and to the best of its ability, perform
all of the duties required of it by the Fund hereunder.
2. OBLIGATIONS OF THE ADMINISTRATOR. The Administrator shall, at its
expense, establish and maintain separate books of account and other records
reasonably appropriate for the operation of the business of the Fund,
including such entries and supporting documents as may be necessary or
appropriate for the purpose of showing all the transactions made or committed
on behalf of the Fund, and shall supervise all accounting procedures and
audits. All books and records shall be maintained in such form and detail as
may be required by applicable law. The Administrator shall oversee the
maintenance of all books and records with respect to the Fund's securities
transactions and the Fund's book of account in accordance with all applicable
federal and state laws and regulations. The Administrator, at its expense,
shall supply the Board of Trustees and officers of the Trust with all
statistical information and reports reasonably required by it and reasonably
available to the Administrator and furnish the Fund with office facilities,
including space, furniture and equipment and all personnel reasonably
necessary for the operation of the Fund. In compliance with the requirements
of Rule 31a-3 under the Act, the Administrator hereby agrees that any records
which it maintains for the Fund are the property of the Fund and further
agrees to surrender promptly to the Fund any of such records upon the Fund's
request. The Administrator further agrees to arrange for the preservation of
the records required to be maintained by Rule 31a-1 under the Act for the
periods prescribed by Rule 31a-2 under the Act.
The Administrator covenants and agrees that it will maintain, or will
otherwise have available to it, facilities and staff, including managerial,
administrative and technical, as shall be necessary and adequate, in all
material respects, to perform properly its obligations hereunder.
3. EXPENSES OF THE FUND. The Administrator assumes and shall pay for
maintaining its staff and personnel, and shall at its own expense provide the
equipment, office space and facilities necessary to perform its obligations
under this Agreement. In addition, the Administrator assumes and shall pay
all ordinary expenses of the Fund, including, without limitation: (a)
organizational costs, (b) compensation of the Investment Adviser's personnel
and payment of other expenses in connection with provision of portfolio
management services, (c) compensation of any of the Trust's trustees, officers
or employees who are not interested persons of the Investment Adviser or its
affiliates, (d) fees and expenses of registering the Fund's shares under the
federal securities laws and of qualifying its shares under applicable state
Blue Sky laws, including expenses attendant upon renewing such registrations
and qualifications, (e) insurance premiums, (f) fidelity bonds, (g) accounting
and bookkeeping costs and expenses necessary to maintain the Fund's books and
records, (h) outside auditing and ordinary legal expenses, (i) all costs
associated with shareholders meetings and the preparation and dissemination of
proxy solicitation materials, (j) costs of printing and distribution of the
Fund's Prospectus and other shareholder information to existing shareholders,
(k) charges, if any, of custodian and dividend disbursing agent's fees, (l)
industry association fees, and (m) costs of independent pricing services and
calculation of daily net asset value. The Administrator may, at its
discretion, assume any additional expenses ordinarily assumed by the Fund when
it determines that such action is in the best interest of the shareholders.
Any extraordinary and non-recurring expenses shall be paid by the Fund.
4. COMPENSATION. As compensation for the services rendered, the
facilities furnished and the expenses assumed by the Administrator, the Fund
shall pay to the Administrator, in arrears, within ten days after the end of
each calendar month, a fee, accrued each calendar day (including weekends and
holidays) at a rate of 0.50% per annum of the Fund's average daily net assets
up to $50 million, 0.45% of such assets from $50 million to $200 million,
0.40% of such assets from $200 million to $500 million, 0.35% of such assets
from $500 million to $1 billion, and 0.30% of such assets in excess of $1
billion for such month as determined and computed in accordance with the
description of the method of determination of net asset value contained in the
Fund's Prospectus and Statement of Additional Information.
5. EXPENSE LIMITATION. If, in any fiscal year, the aggregate
expenses of the Fund (including advisory, administrative and transfer agency
fees, but excluding interest, local, state and federal taxes), exceed the
expense limitations of any state having jurisdiction over the Fund, then the
fee paid to the Administrator hereunder will be reduced pro rata (but not
below zero) to the extent required by such expense limitation. The
Administrator will bear its pro rata share of any such fee reduction based on
the percentage that the Administrator's fee bears to the total administrative
and advisory fees paid by the Fund to the Administrator and to the investment
adviser of the Fund, for the month and year in which this Agreement becomes
effective or terminates, there shall be an appropriate proration of said fee
reduction based on the number of days that the Agreement is in effect during
such month and year, respectively.
6. INSPECTION OF BOOKS AND RECORDS. Manager shall, upon reasonable
notice, permit the Fund and its duly authorized representatives to inspect and
to audit, for any purposes whatsoever, all of the books of account, documents,
records, papers and files in the custody or possession of the Administrator
relating in any manner to the business of the Fund. All expenses involved in
such audit or inspection will be borne by the Fund.
7. INDEPENDENT CONTRACTOR. The Administrator is for all purposes
hereunder an independent contractor, free from control, direction or
supervision of the Trust and any persons engaged by the Administrator in the
performance of the Administrator's duties hereunder are solely the employees
or agents of the Administrator. The parties hereto intend and contemplate
that their relationship shall not be construed, nor shall any provision of
this Agreement be interpreted, so as to create a partnership or joint venture
between them or their respective successors in interest and, except as
expressly provided or authorized, neither party shall have the authority to
act for, represent or bind the other or otherwise be deemed an agent of the
other.
8. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator to the Fund hereunder are not to be deemed exclusive and the
Administrator shall be free to render similar services to others. Subject to,
and in accordance with the Declaration of Trust and By-Laws of the Trust and
Section 10(a) of the Act, it is understood that trustees, officers, agents and
beneficial holders of the Trust are or may be "interested persons" (as defined
in the Act) of the Administrator of its affiliates, and that directors,
officers, agents or shareholders of the Administrator of its affiliates are or
may be "interested persons" of the Trust as beneficial holders or otherwise.
9. LIMITATION OF LIABILITY. In the absence of willful misfeasance,
bad faith, gross negligence or reckless disregard of obligations or duties
hereunder on the part of the Administrator, the Administrator shall not be
liable to the Fund or to any beneficial holder of the Fund for any act or
omission in the course of, or in connection with, rendering services hereunder
or for any losses that may be sustained in the purchase, holding or sale of
any security.
10. TERM. This Agreement shall become effective on the date hereof,
and shall continue in effect for one year and from year to year thereafter
only so long as specifically approved annually by the Trust's Board of
Trustees, including a majority of the Trustees who are not parties to the
Agreement or "interested persons" (as defined in the Act) of any such party
cast in person at a meeting called for the purpose of voting on such approval.
11. TERMINATION. This Agreement may be terminated at any time
without the payment of any penalty (i) by the Fund either by vote of the Board
of Trustees of the Trust or by vote of a majority of the outstanding voting
securities of the Fund, on 60 days written notice to the Administrator, or
(ii) by the Administrator on 60 days written notice to the Fund.
12. AMENDMENTS. This Agreement may be amended by the parties only if
such amendment is specifically approved by the Board of Trustees of the Trust,
including a majority of those trustees of the Trust who are not parties to
this Agreement or interested persons of any such party cast in person at a
meeting called for the purpose of voting on such approval.
13. NOTICES. Any notice required or desired to be given hereunder
shall be in writing and shall be considered effective (i) when delivered, if
by personal delivery, (ii) upon receipt, if sent by FAX, which FAX has been
telephonically confirmed, between the hours of 9:00 a.m. and 5:00 p.m. local
time of the recipient on a business day, or if not, at 9:00 a.m., local time
on the next business day, or (iii) upon the earlier of actual or first
attempted delivery, if mailed, postage prepaid, addressed as follows:
If to the Administrator:
Berkshire Capital Holdings, Inc.
475 Milan Drive, Suite #103
San Jose, California 95134-2453
FAX No.: (408) 562-6501
Telephone No.: (408) 526-0707
If to the Trust:
The Berkshire Funds
475 Milan Drive, Suite #103
San Jose, California 95134-2453
FAX No.: (408) 562-6501
Telephone No.: (408) 526-0707
or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 13.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes all prior negotiations or agreements, whether written or oral.
15. INUREMENT. This Agreement shall inure to the benefit of and be
binding upon the Fund, the Administrator, and their respective successors,
transferees and assigns.
16. Assignment. Except as otherwise expressly provided herein, the
rights and obligations of the parties pursuant to this Agreement may not be
assigned without the express written consent of the other party.
17. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative
for any reason by any court of competent jurisdiction, such holding,
declaration or pronouncement shall not adversely affect any other provision of
this Agreement, and this Agreement shall otherwise remain in full force and
effect and be enforced in accordance with its terms, including in a manner
that may be reasonably required in order to render any provision that has been
held, declared or pronounced void, voidable, invalid, unenforceable or
inoperative to become valid, enforceable and operative.
18. COUNTERPARTS. This Agreement shall be executed in counterparts,
in which case all such counterparts shall constitute one and the same
agreement.
19. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of California.
20. ATTORNEYS' FEES. In the event any proceeding is brought by one
party against the other to enforce or for the breach of any of the provisions
of this Agreement, the prevailing party shall be entitled in such proceeding
and in any appeal therefrom to recover reasonable attorneys' fees, together
with the costs of such proceeding therein incurred.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first written above.
ATTEST: THE BERKSHIRE FUNDS
By: /s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
------------------- ------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary President
ATTEST: BERKSHIRE CAPITAL HOLDINGS, INC.
By: /s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
------------------- ------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary Chairman & CEO
<PAGE>
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT ("Agreement"), is made and entered into
this 19th day of December, 1999, by and between The Berkshire Funds, a
Delaware business trust (the "Trust"), and Berkshire Capital Holdings, Inc., a
California corporation (the "Administrator").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as a non-diversified open-end
management investment company and is registered as such under the Investment
Company Act of 1940, as amended (the "Act"); and
WHEREAS, the Administrator is engaged in the business of rendering
administrative and supervisory services to investment companies; and
WHEREAS, the Trust desires to retain the Administrator to render
supervisory and corporate administrative services to the Berkshire Technology
Fund (the "Fund") in the manner and on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT OF THE ADMINISTRATOR. The Trust hereby employs the
Administrator to administer the affairs of the Fund subject to the direction
of the Board of Trustees and the officers of the Trust, for the period and on
the terms hereinafter set forth. The Administrator hereby accepts such
employment and agrees during such period to render the services and to assume
the obligations herein set forth for the compensation herein provided. The
Administrator shall devote such time as is necessary to carry out and shall at
all times faithfully, with diligence and to the best of its ability, perform
all of the duties required of it by the Fund hereunder.
2. OBLIGATIONS OF THE ADMINISTRATOR. The Administrator shall, at its
expense, establish and maintain separate books of account and other records
reasonably appropriate for the operation of the business of the Fund,
including such entries and supporting documents as may be necessary or
appropriate for the purpose of showing all the transactions made or committed
on behalf of the Fund, and shall supervise all accounting procedures and
audits. All books and records shall be maintained in such form and detail as
may be required by applicable law. The Administrator shall oversee the
maintenance of all books and records with respect to the Fund's securities
transactions and the Fund's book of account in accordance with all applicable
federal and state laws and regulations. The Administrator, at its expense,
shall supply the Board of Trustees and officers of the Trust with all
statistical information and reports reasonably required by it and reasonably
available to the Administrator and furnish the Fund with office facilities,
including space, furniture and equipment and all personnel reasonably
necessary for the operation of the Fund. In compliance with the requirements
of Rule 31a-3 under the Act, the Administrator hereby agrees that any records
which it maintains for the Fund are the property of the Fund and further
agrees to surrender promptly to the Fund any of such records upon the Fund's
request. The Administrator further agrees to arrange for the preservation of
the records required to be maintained by Rule 31a-1 under the Act for the
periods prescribed by Rule 31a-2 under the Act.
The Administrator covenants and agrees that it will maintain, or will
otherwise have available to it, facilities and staff, including managerial,
administrative and technical, as shall be necessary and adequate, in all
material respects, to perform properly its obligations hereunder.
3. EXPENSES OF THE FUND. The Administrator assumes and shall pay for
maintaining its staff and personnel, and shall at its own expense provide the
equipment, office space and facilities necessary to perform its obligations
under this Agreement. In addition, the Administrator assumes and shall pay
all ordinary expenses of the Fund, including, without limitation: (a)
organizational costs, (b) compensation of the Investment Adviser's personnel
and payment of other expenses in connection with provision of portfolio
management services, (c) compensation of any of the Trust's trustees, officers
or employees who are not interested persons of the Investment Adviser or its
affiliates, (d) fees and expenses of registering the Fund's shares under the
federal securities laws and of qualifying its shares under applicable state
Blue Sky laws, including expenses attendant upon renewing such registrations
and qualifications, (e) insurance premiums, (f) fidelity bonds, (g) accounting
and bookkeeping costs and expenses necessary to maintain the Fund's books and
records, (h) outside auditing and ordinary legal expenses, (i) all costs
associated with shareholders meetings and the preparation and dissemination of
proxy solicitation materials, (j) costs of printing and distribution of the
Fund's Prospectus and other shareholder information to existing shareholders,
(k) charges, if any, of custodian and dividend disbursing agent's fees, (l)
industry association fees, and (m) costs of independent pricing services and
calculation of daily net asset value. The Administrator may, at its
discretion, assume any additional expenses ordinarily assumed by the Fund when
it determines that such action is in the best interest of the shareholders.
Any extraordinary and non-recurring expenses shall be paid by the Fund.
4. COMPENSATION. As compensation for the services rendered, the
facilities furnished and the expenses assumed by the Administrator, the Fund
shall pay to the Administrator, in arrears, within ten days after the end of
each calendar month, a fee, accrued each calendar day (including weekends and
holidays) at a rate of 0.50% per annum of the Fund's average daily net assets
up to $50 million, 0.45% of such assets from $50 million to $200 million,
0.40% of such assets from $200 million to $500 million, 0.35% of such assets
from $500 million to $1 billion, and 0.30% of such assets in excess of $1
billion for such month as determined and computed in accordance with the
description of the method of determination of net asset value contained in the
Fund's Prospectus and Statement of Additional Information.
5. EXPENSE LIMITATION. If, in any fiscal year, the aggregate
expenses of the Fund (including advisory, administrative and transfer agency
fees, but excluding interest, local, state and federal taxes), exceed the
expense limitations of any state having jurisdiction over the Fund, then the
fee paid to the Administrator hereunder will be reduced pro rata (but not
below zero) to the extent required by such expense limitation. The
Administrator will bear its pro rata share of any such fee reduction based on
the percentage that the Administrator's fee bears to the total administrative
and advisory fees paid by the Fund to the Administrator and to the investment
adviser of the Fund, for the month and year in which this Agreement becomes
effective or terminates, there shall be an appropriate proration of said fee
reduction based on the number of days that the Agreement is in effect during
such month and year, respectively.
6. INSPECTION OF BOOKS AND RECORDS. Manager shall, upon reasonable
notice, permit the Fund and its duly authorized representatives to inspect and
to audit, for any purposes whatsoever, all of the books of account, documents,
records, papers and files in the custody or possession of the Administrator
relating in any manner to the business of the Fund. All expenses involved in
such audit or inspection will be borne by the Fund.
7. INDEPENDENT CONTRACTOR. The Administrator is for all purposes
hereunder an independent contractor, free from control, direction or
supervision of the Trust and any persons engaged by the Administrator in the
performance of the Administrator's duties hereunder are solely the employees
or agents of the Administrator. The parties hereto intend and contemplate
that their relationship shall not be construed, nor shall any provision of
this Agreement be interpreted, so as to create a partnership or joint venture
between them or their respective successors in interest and, except as
expressly provided or authorized, neither party shall have the authority to
act for, represent or bind the other or otherwise be deemed an agent of the
other.
8. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator to the Fund hereunder are not to be deemed exclusive and the
Administrator shall be free to render similar services to others. Subject to,
and in accordance with the Declaration of Trust and By-Laws of the Trust and
Section 10(a) of the Act, it is understood that trustees, officers, agents and
beneficial holders of the Trust are or may be "interested persons" (as defined
in the Act) of the Administrator of its affiliates, and that directors,
officers, agents or shareholders of the Administrator of its affiliates are or
may be "interested persons" of the Trust as beneficial holders or otherwise.
9. LIMITATION OF LIABILITY. In the absence of willful misfeasance,
bad faith, gross negligence or reckless disregard of obligations or duties
hereunder on the part of the Administrator, the Administrator shall not be
liable to the Fund or to any beneficial holder of the Fund for any act or
omission in the course of, or in connection with, rendering services hereunder
or for any losses that may be sustained in the purchase, holding or sale of
any security.
10. TERM. This Agreement shall become effective on the date hereof,
and shall continue in effect for one year and from year to year thereafter
only so long as specifically approved annually by the Trust's Board of
Trustees, including a majority of the Trustees who are not parties to the
Agreement or "interested persons" (as defined in the Act) of any such party
cast in person at a meeting called for the purpose of voting on such approval.
11. TERMINATION. This Agreement may be terminated at any time
without the payment of any penalty (i) by the Fund either by vote of the Board
of Trustees of the Trust or by vote of a majority of the outstanding voting
securities of the Fund, on 60 days written notice to the Administrator, or
(ii) by the Administrator on 60 days written notice to the Fund.
12. AMENDMENTS. This Agreement may be amended by the parties only if
such amendment is specifically approved by the Board of Trustees of the Trust,
including a majority of those trustees of the Trust who are not parties to
this Agreement or interested persons of any such party cast in person at a
meeting called for the purpose of voting on such approval.
13. NOTICES. Any notice required or desired to be given hereunder
shall be in writing and shall be considered effective (i) when delivered, if
by personal delivery, (ii) upon receipt, if sent by FAX, which FAX has been
telephonically confirmed, between the hours of 9:00 a.m. and 5:00 p.m. local
time of the recipient on a business day, or if not, at 9:00 a.m., local time
on the next business day, or (iii) upon the earlier of actual or first
attempted delivery, if mailed, postage prepaid, addressed as follows:
If to the Administrator:
Berkshire Capital Holdings, Inc.
475 Milan Drive, Suite #103
San Jose, California 95134-2453
FAX No.: (408) 562-6501
Telephone No.: (408) 526-0707
If to the Trust:
The Berkshire Funds
475 Milan Drive, Suite #103
San Jose, California 95134-2453
FAX No.: (408) 562-6501
Telephone No.: (408) 526-0707
or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 13.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes all prior negotiations or agreements, whether written or oral.
15. INUREMENT. This Agreement shall inure to the benefit of and be
binding upon the Fund, the Administrator, and their respective successors,
transferees and assigns.
16. ASSIGNMENT. Except as otherwise expressly provided herein, the
rights and obligations of the parties pursuant to this Agreement may not be
assigned without the express written consent of the other party.
17. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative
for any reason by any court of competent jurisdiction, such holding,
declaration or pronouncement shall not adversely affect any other provision of
this Agreement, and this Agreement shall otherwise remain in full force and
effect and be enforced in accordance with its terms, including in a manner
that may be reasonably required in order to render any provision that has been
held, declared or pronounced void, voidable, invalid, unenforceable or
inoperative to become valid, enforceable and operative.
18. COUNTERPARTS. This Agreement shall be executed in counterparts,
in which case all such counterparts shall constitute one and the same
agreement.
19. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of California.
20. ATTORNEYS' FEES. In the event any proceeding is brought by one
party against the other to enforce or for the breach of any of the provisions
of this Agreement, the prevailing party shall be entitled in such proceeding
and in any appeal therefrom to recover reasonable attorneys' fees, together
with the costs of such proceeding therein incurred.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first written above.
ATTEST: THE BERKSHIRE FUNDS
By: /s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
------------------- ------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary President
ATTEST: BERKSHIRE CAPITAL HOLDINGS, INC.
By: /s/ Ronald G. Seger By: /s/ Malcolm R. Fobes III
------------------- ------------------------
Ronald G. Seger Malcolm R. Fobes III
Secretary Chairman & CEO
<PAGE>
John F. Splain, Esq.
4555 Lake Forest Drive
650 Westlake Center
Cincinnati, Ohio 45242
(513) 563-3500
December 22, 1999
The Berkshire Funds
475 Milan Drive, Suite #103
San Jose, California 95134
Gentlemen:
You have requested my opinion in connection with the registration by The
Berkshire Funds, a Delaware business trust (the "Trust"), of an indefinite
number of shares of beneficial interest (the "Shares") of its two series, the
Berkshire Focus Fund and the Berkshire Technology Fund, authorized by the
Trust's Declaration of Trust, to be filed with the Securities and Exchange
Commission as an exhibit to the Trust's registration statement on Form N-1A
(File No. 333-21089), as amended (the "Registration Statement"), under the
Securities Act of 1933 and the Investment Company Act of 1940.
I have examined and relied upon originals or copies, certified or otherwise
identified to my satisfaction, of such records, agreements, documents and
other instruments and certificates or comparable documents of public officials
and of officers and representatives of the Trust, and I have made such
inquiries of the officers and representatives of the Trust, as I have deemed
relevant and necessary as the basis for the opinion hereinafter set forth.
In such examination, I have assumed, without independent verification, the
genuineness of all signatures (whether original or photostatic) and the
authenticity of all documents submitted to me as originals and the conformity
to authentic original documents of all documents submitted to me as certified
or photostatic copies. As to all questions of fact material to such opinion,
I have relied upon the certificates referred to hereinabove. I have assumed,
without independent verification, the accuracy of the relevant facts stated
therein.
This letter expresses by opinion as to the provisions of the Trust's
Declaration of Trust and the laws of the State of Delaware applying to
business trusts generally, but does not extend to federal securities or other
laws or the laws of jurisdictions outside the State of Delaware.
Based on the foregoing, and subject to the qualifications set forth herein, I
am of the opinion that the Shares have been duly and validly authorized, and,
when issued and delivered as described in the Registration Statement, will be
fully paid and nonassessable by the Trust.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not thereby admit that I
come within the category of persons whose consent is required under Section 7
of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ John F. Splain
- - ------------------
John F. Splain
Counsel
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
dated January 10, 1999 and to all references to our firm included in or made a
part of this Post-Effective Amendment No. 5 to Berkshire Funds' Registration
Statement on Form N-1A (file no. 333-21089), including the references to our
firm under the heading "Financial Highlights" in the Prospectus and heading
"Accountants" in the Statement of Additional Information.
/s/ McCurdy & Associates
- - ------------------------
McCurdy & Associates CPA's, Inc.
Westlake, Ohio
December 22, 1999
<PAGE>
