AS FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION
ON 10/06/99
FILE NOS: 811-____
333-_____
SECURITIES AND EXCHANGE COMMISSION
----------------------------------
Washington, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [X]
Pre-Effective Amendment No. [ ]
Post-Effective Amendment No. [ ]
and
REGISTRATION STATEMENT UNDER
THE INVESTMENT COMPANY ACT OF 1940 [X]
Amendment No. [ ]
(Check appropriate box or boxes.)
FAIRHOLME FUNDS, INC.
-------------------------------
(Exact name of Registrant as Specified in Charter)
51 JFK PARKWAY
SHORT HILLS, NJ 07078
------------------------
(Address of Principal Executive Office)
973-379-6557
------------------
(Registrant's Telephone Number, including Area Code)
MR. BRUCE R. BERKOWITZ
FAIRHOLME CAPITAL MANAGEMENT LLC
51 JFK PARKWAY
SHORT HILLS, NJ 07078
---------------------------------------
(Name and Address of Agent for Service)
Please send copy of communications to:
MR. DAVID D. JONES, ESQ.
DAVID JONES & ASSOC., P.C.
799 STATE STREET, PMB 234
POTTSTOWN, PA 19464
------------
Approximate Date of Proposed Public Offering: As soon as practicable following
effective date.
Registrant declares that it is registering an indefinite number or amount of its
securities by this Registration Statement.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall became
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
TOTAL NUMBER OF PAGES 64
EXHIBIT INDEX BEGINS ___
ON PAGE 39
<PAGE>
FAIRHOLME FUNDS, INC.
CONTENTS OF REGISTRATION STATEMENT
This Registration document is comprised of the following:
1. Cover Sheet
2. Contents of Registration Statement
3. Prospectus for the Fairholme Fund
4. Statement of Additional Information for the Fairholme Fund
5. Part C of Form N-1A
6. Signature Page
7. Exhibits
<PAGE>
===================================
DECEMBER 15, 1999
PROSPECTUS
===================================
THE FAIRHOLME FUND
(the "Fund")
A SERIES OF FAIRHOLME FUNDS, INC.
(the "Company")
51 JFK Parkway
Short Hills, NJ 07078
1-800-___-____
As with all mutual funds, the Securities and Exchange Commission has not
approved or disapproved these securities or passed on the accuracy or adequacy
of this prospectus. Any representation to the contrary is a criminal offense.
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
THE FUND
What is the Fund's Investment Objective? ............................ 3
What are the Fund's Primary Investment Strategies? .................. 3
What are the Principal Risks of Investing in the Fund? .............. 4
How Has the Fund Performed in the Past? ............................. 5
What are the Fund's Fees And Expenses? .............................. 5
An Example of Fund Expenses Over Time ............................... 6
THE FUND'S INVESTMENT ADVISER
The Adviser ......................................................... 6
The Portfolio Manager ............................................... 6
HOW TO BUY AND SELL SHARES
Investing In The Fund ............................................... 7
Determining Share Prices ............................................ 7
Minimum Investment Amounts .......................................... 7
Opening and Adding To Your Account .................................. 8
Purchasing Shares By Mail ........................................... 8
Purchasing Shares By Wire Transfer .................................. 8
Purchases through Financial Service Organizations ................... 9
Purchasing Shares By Automatic Investment Plan ...................... 9
Purchasing Shares By Telephone ...................................... 9
Miscellaneous Purchase Information .................................. 10
How to Sell (Redeem) Your Shares .................................... 10
By Mail ............................................................. 10
Signature Guarantees ................................................ 11
By Telephone ........................................................ 11
By Wire ............................................................. 12
Redemption At The Option Of The Fund ................................ 12
DIVIDENDS AND DISTRIBUTIONS ......................................... 12
TAX CONSIDERATIONS .................................................. 12
GENERAL INFORMATION ................................................. 13
FOR MORE INFORMATION ................................................ 14
<PAGE>
THE FUND
WHAT IS THE FUND'S INVESTMENT OBJECTIVE?
The Fund's investment objective is long-term growth of capital.
WHAT ARE THE FUND'S PRINCIPAL INVESTMENT STRATEGIES?
The Adviser attempts to achieve the Fund's investment goals by:
o investing in common stocks without restrictions regarding market
capitalization;
o normally investing at least 75% of the Fund's total assets in US
common stocks; and
o holding a focused portfolio of no more than 25 stocks.
The Fund's Adviser believes that the Fund's investment objective is best
achieved by investing in companies that exhibit the potential for
significant growth over the long term. The Adviser defines long-term as a
time horizon of at least three years. To identify companies that have
significant growth potential, the Adviser generally employs fundamental
analytical techniques to determine the intrinsic value of a company and
then compares those results to the company's current share price. Companies
that are trading at significant discounts to their intrinsic value are
targeted for investment. The Adviser will then choose the companies from
that initial pool which exhibit some or all of the following criteria:
o highly qualified management;
o strong franchise;
o consistent free cash flow;
o high returns on invested capital;
o excellent prospects for growth;
o low price-to-book value or tangible asset value; and
o low price-to-earnings ratio ("P/E").
By utilizing these analytical approaches, the Fund's Adviser plans to have
the Fund purchase shares of good businesses at reasonable prices that
provide a margin of safety.
The Fund may invest up to 25% of its total assets in foreign securities
that are traded on a U.S. exchange, either directly or in the form of
American Depository Receipts ("ADRs"). The Fund will only invest in ADRs
that are issuer sponsored. Sponsored ADRs typically are issued by a U.S.
bank or trust company and evidence ownership of underlying securities
issued by a foreign corporation.
The Fund will normally invest its remaining assets in cash and cash
equivalents, such as U.S. government debt instruments, other money market
mutual funds, and repurchase agreements.
3
<PAGE>
WHAT ARE THE PRINCIPAL RISKS OF INVESTING IN THE FUND?
General Risks- All investments are subject to inherent risks, and the Fund
is no exception. Accordingly, you may lose money by investing in the Fund.
When you sell your Fund shares, they may be worth more or less than what
you paid for them because the value of the Fund's investments will vary
from day-to-day, reflecting changes in market conditions, interest rates
and numerous other factors.
Stock Market Risk- The stock market tends to trade in cyclical price
patterns, with prices generally rising or falling over sustained periods of
time. The Fund invests primarily in common stocks, so the Fund will be
subject to the risks associated with common stocks, including price
volatility and the creditworthiness of the issuing company.
Small To Medium-Cap Stock Risks- The Fund may invest in companies with
small to medium market capitalizations (generally less than $6 billion).
Because these companies are relatively small compared to large-cap
companies, may be engaged in business mostly within their own geographic
region, and may be less well-known to the investment community, they can
have more volatile share prices. Also, small companies often have less
liquidity, less management depth, narrower market penetrations, less
diverse product lines, and fewer resources than larger companies. As a
result, their stock prices often react more strongly to changes in the
marketplace.
Foreign Securities Risk- Investments in foreign securities involve greater
risks compared to domestic investments for the following reasons:
o Foreign companies are not subject to the regulatory requirements of
U.S. companies, so there may be less publicly available information
about foreign issuers than U.S. companies.
o Foreign companies generally are not subject to uniform accounting,
auditing and financial reporting standards.
o Dividends and interest on foreign securities may be subject to foreign
withholding taxes. Such taxes may reduce the net return to Fund
shareholders.
o Foreign securities are often denominated in a currency other than the
U.S. dollar. Accordingly, the Fund will be subject to the risks
associated with fluctuations in currency values.
o Although the Fund will only invest in foreign issuers that are
domiciled in nations considered to have stable and friendly
governments, there is the possibility of expropriation, confiscation,
taxation, currency blockage or political or social instability which
could negatively affect the Fund.
Focused Portfolio Risk- The Fund is classified as "non-diversified" under
the federal securities laws. This means that the Fund has the ability to
concentrate a relatively high percentage of its investments in the
securities of a small number of companies. Investing in this manner makes
the Fund more susceptible to a single economic, political or regulatory
event than a more diversified fund might be. Also, a change in the value of
a single company will have a more pronounced effect on the Fund than such a
change would have on a more diversified fund.
4
<PAGE>
Temporary Defensive Positions - Ordinarily, the Fund's portfolio will be
invested primarily in common stocks. However, the Fund is not required to
be fully invested in common stocks and, in fact, usually maintains certain
cash reserves. Depending upon market conditions, cash reserves may be a
significant percentage of the Fund's total net assets. The Fund usually
invests its cash reserves in U.S. Government debt instruments, other
unaffiliated mutual funds (money market funds) and repurchase agreements.
During times when the Fund holds a significant portion of its net assets in
cash, it will not be investing according to its investment objectives, and
the Fund's performance may be negatively affected as a result.
Management Risk- Acting as investment adviser to the Fund is a new position
for the Adviser, and the Fund has no operating history.
Year 2000 Risks- As with other mutual funds, financial and business
organizations and individuals around the world, the Fund could be adversely
affected if the computer systems used by the Adviser and the Fund's other
service providers don't properly process and calculate date-related
information and data from and after January 1, 2000. This is commonly known
as the "Year 2000" or "Y2K" problem. The Adviser is taking steps to address
the Y2K problem with respect to the computer systems that it uses and to
obtain assurances that comparable steps are being taken by the Fund's other
major service providers. The Adviser will also monitor the companies in
which the Fund invests for evidence of their Y2K preparedness. However,
there can be no assurance that the Fund's portfolio will not be adversely
affected by the Y2K problem. Further, foreign issuers may not be as well
prepared for the Y2K problem as U.S. issuers, and this may pose additional
risk to the Fund.
HOW HAS THE FUND PERFORMED IN THE PAST?
Because this is a new Fund that does not yet have an operating history, a
performance bar chart and table describing the Fund's annual performance
and comparing that performance to appropriate indices is not yet available.
Performance information will be included in the Fund's first semi-annual
and annual reports, which will be sent to you without charge at your
request. Simply contact the Fund at 1-800-___-____.
WHAT ARE THE FUND'S FEES AND EXPENSES?
This table describes the fees and expenses you may pay if you buy and hold
shares of the Fund.
5
<PAGE>
------------------------------------------------
Shareholder Fees:
-----------------
(fees paid directly from your investment)
Maximum Sales Charge (Load)
Imposed on Purchases NONE
Maximum Deferred Sales NONE
Charge (Load)
Maximum Sales Charge (Load) NONE
Imposed on Reinvested Dividends
And other Distributions
Redemption Fees NONE
------------------------------------------------
------------------------------------------------
Annual Fund Operating Expenses:
-------------------------------
(expenses that are deducted from Fund assets)
Management Fees1 1.00%
Distribution (12b-1) Fees 0.00%
Other Expenses2 0.00%
------------------------------------------------
Total Annual
Fund Operating Expenses 1.00%
1. Management fees include a fee of 0.50% for investment advisory services and
0.50% for administrative and other services. Both fees are paid to the
Fund's Adviser pursuant to separate agreements for each service.
2. The Fund's Adviser is responsible for paying all the Fund's expenses except
taxes, interest, litigation expenses and other extraordinary expenses.
Because the Fund believes that it will not incur any of these expenses
during its first fiscal year, no expenses are included in this category.
AN EXAMPLE OF EXPENSES OVER TIME:
This Example below is intended to help you compare the cost of investing in the
Fund with the cost of investing in other mutual funds.
The Example assumes that you invest $10,000 in the Fund for the time periods
indicated, reinvest all dividends and distributions, and then redeem all your
shares at the end of those periods. The Example also assumes that your
investment has a 5% return each year and that the Fund's operating expenses
remain the same. Although your actual costs may be higher or lower, based on
these assumptions your costs would be:
ONE YEAR THREE YEARS
-------- -----------
$ 160 $ 504
THE FUND'S INVESTMENT ADVISER
The Adviser
- -----------
Fairholme Capital Management, LLC (the "Adviser"), 51 JFK Parkway, Short Hills,
NJ 07078 serves as investment adviser to the Fund. The Adviser is a Delaware
limited liability company and is registered with the Securities and Exchange
Commission as an investment adviser.
The Adviser's principal business and occupation is to provides financial
management and advisory services to individuals, corporations, and other
institutions throughout the United States. The Adviser has been investment
adviser to the Fund since its inception. The Adviser manages the investment
portfolio and business affairs of the Fund under an Investment Advisory
Agreement
6
<PAGE>
with the Fund, and manages, or arranges to manage, the daily operations of the
Fund under an Operating Services Agreement.
For its investment advisory services to the Fund, the Company pays to the
Adviser, on the last day of each month, an annualized fee equal to 1.00% of the
average net assets of the Fund, such fee to be computed daily based upon the
daily average net assets of the Fund.
The Portfolio Manager
- ---------------------
Mr. Bruce Berkowitz is Managing Director of the Adviser and acts as the
portfolio manager for the Fund. Mr. Berkowitz is also President of Fairholme
Funds, Inc. (the "Company"). Mr. Berkowitz has been Managing Director, and the
Chief Investment Officer of the Adviser since the Adviser's inception in 1994.
As of September 30, 1999, the Adviser managed in excess of $___________ in
client assets.
HOW TO BUY AND SELL SHARES OF THE FUND
INVESTING IN THE FUND
Determining Share Prices
- ------------------------
Shares of the Fund are offered at each share's net asset value ("NAV"). NAV per
share is calculated by adding the value of Fund investments, cash and other
assets, subtracting Fund liabilities, and then dividing the result by the number
of shares outstanding. The Fund generally determines the total value of its
shares by using market prices for the securities comprising its portfolio.
Securities for which quotations are not available and any other assets are
valued at fair market value as determined in good faith by the Adviser, subject
to the review and supervision of the Board of Directors. The Fund's per share
NAV is computed on all days on which the New York Stock Exchange ("NYSE") is
open for business at the close of regular trading hours on the Exchange,
currently 4:00 p.m. Eastern time. In the event that the NYSE closes early, the
share price will be determined as of the time of closing.
Minimum Investment Amounts
- --------------------------
Payments for Fund shares should be in U.S. dollars, and in order to avoid fees
and delays, should be drawn on a U.S. bank. Fund management may reject any
purchase order for Fund shares and may waive the minimum investment amounts in
its sole discretion.
Your purchase of Fund shares is subject to the following minimum investment
amounts:
MINIMUM MINIMUM
TYPE OF INVESTMENT SUBSEQUENT
ACCOUNT TO OPEN ACCOUNT INVESTMENTS
- --------------------------------------------------------------------------------
REGULAR $2,500 $1,000
IRAs $1,000 $ 100
- --------------------------------------------------------------------------------
7
<PAGE>
AUTOMATIC INVESTMENT PLAN MEMBERS
MINIMUM MINIMUM
TYPE OF INVESTMENT SUBSEQUENT
ACCOUNT TO OPEN ACCOUNT INVESTMENTS
- --------------------------------------------------------------------------------
REGULAR $2,500 $100 per month minimum
IRAs $1,000 $100 per month minimum
- --------------------------------------------------------------------------------
Opening and Adding To Your Account
- ----------------------------------
You can invest in the Fund by mail, wire transfer and through participating
financial service professionals. After you have established your account and
made your first purchase, you may also make subsequent purchases by telephone.
You may also invest in the Fund through an automatic payment plan. Any questions
you may have can be answered by calling 1-800-___-____.
Purchasing Shares By Mail
- -------------------------
To make your initial investment in the Fund, simply complete the Account
Registration Form included with this Prospectus, make a check payable to the
Fairholme Fund, and mail the Form and check to:
Fairholme Funds, Inc.
c/o Mutual Shareholder Services
1301 East 9th Street, Suite 1005
Cleveland, OH 44114
To make subsequent purchases, simply make a check payable to the Fairholme Fund
and mail the check to the above-mentioned address. Be sure to note your Fund
account number on the check.
Your purchase order, if accompanied by payment, will be processed upon receipt
by Mutual Shareholder Services, the Fund's Transfer Agent. If the Transfer Agent
receives your order and payment by the close of regular trading on the NYSE
(currently 4:00 p.m. Eastern time), your shares will be purchased at the Fund's
NAV calculated at the close of regular trading on that day. Otherwise, your
shares will be purchased at the NAV determined as of the close of regular
trading on the next business day.
Purchasing Shares by Wire Transfer
- ----------------------------------
To make an initial purchase of shares by wire transfer, you need to take the
following steps:
1. Call 1-800-___-____ to inform us that a wire is being sent.
2. Obtain an account number from the Transfer Agent.
3. Fill out and mail or fax an Account Application to the Transfer Agent
4. Ask your bank to wire funds to the account of:
UMB Bank, N.A., NA, ABA #: 123456789
Credit: Fairholme Funds, Inc., Acct. #:123456789
Further credit: The Fairholme Fund,
Acct # [Your Account number]
8
<PAGE>
Include your name(s), address and taxpayer identification number or Social
Security number on the wire transfer instructions. The wire should state that
you are opening a new Fund account.
To make subsequent purchases by wire, ask your bank to wire funds using the
instructions listed above, and be sure to include your account number on the
wire transfer instructions.
If you purchase Fund shares by wire, you must complete and file an Account
Registration Form with the Transfer Agent before any of the shares purchased can
be redeemed. Either fill out and mail the Application Form included with this
prospectus, or call the transfer agent and they will send you an application.
You should contact your bank (which will need to be a commercial bank that is a
member of the Federal Reserve System) for information on sending funds by wire,
including any charges that your bank may make for these services.
Purchases through Financial Service Organizations
- -------------------------------------------------
You may purchase shares of the Fund through participating brokers, dealers, and
other financial professionals. Simply call your investment professional to make
your purchase. If you are a client of a securities broker or other financial
organization, such organizations may charge a separate fee for administrative
services in connection with investments in Fund shares and may impose account
minimums and other requirements. These fees and requirements would be in
addition to those imposed by the Fund. If you are investing through a securities
broker or other financial organization, please refer to its program materials
for any additional special provisions or conditions that may be different from
those described in this Prospectus (for example, some or all of the services and
privileges described may not be available to you). Securities brokers and other
financial organizations have the responsibility of transmitting purchase orders
and funds, and of crediting their customers' accounts following redemptions, in
a timely manner in accordance with their customer agreements and this
Prospectus.
Purchasing Shares by Automatic Investment Plan
- ----------------------------------------------
You may purchase shares of the Fund through an Automatic Investment Plan
("Plan"). The Plan provides a convenient way for you to have money deducted
directly from your checking, savings, or other accounts for investment in shares
of the Fund. You can take advantage of the Plan by filling out the Automatic
Investment Plan application on page __ of this Prospectus. You may only select
this option if you have an account maintained at a domestic financial
institution which is an Automatic Clearing House member for automatic
withdrawals under the Plan. The Fund may alter, modify, amend or terminate the
Plan at any time, and will notify you at least 30 days in advance if it does so.
For more information, call the Transfer Agent at 1-800-___-____.
Purchasing Shares by Telephone
- ------------------------------
In order to be able to purchase shares by telephone, your account authorizing
such purchases must have been established prior to your call. Your initial
purchase of shares may not be made by telephone. Shares purchased by telephone
will be purchased at the per share NAV determined at the close of business on
the day that the Transfer Agent receives payment through the Automated Clearing
House, which could be as many as two days after you place your order for shares.
Call the Transfer Agent for details.
9
<PAGE>
You may make purchases by telephone only if you have an account at a bank that
is a member of the Automated Clearing House. Most transfers are completed within
three business days of your call. To preserve flexibility, the Company may
revise or eliminate the ability to purchase Fund shares by phone, or may charge
a fee for such service, although the Company does not currently expect to charge
such a fee.
The Fund's Transfer Agent employs certain procedures designed to confirm that
instructions communicated by telephone are genuine. Such procedures may include,
but are not limited to, requiring some form of personal identification prior to
acting upon telephonic instructions, providing written confirmations of all such
transactions, and/or tape recording all telephonic instructions. Assuming
procedures such as the above have been followed, neither the Transfer Agent nor
the Fund will be liable for any loss, cost, or expense for acting upon telephone
instructions that are believed to be genuine. The Company shall have authority,
as your agent, to redeem shares in your account to cover any such loss. As a
result of this policy, you will bear the risk of any loss unless the Fund has
failed to follow procedures such as the above. However, if the Fund fails to
follow such procedures, it may be liable for such losses.
Miscellaneous Purchase Information
- ----------------------------------
The Fund reserves the right to refuse to accept applications under circumstances
or in amounts considered disadvantageous to shareholders. Applications will not
be accepted unless they are accompanied by payment in U.S. funds. Payment must
be made by wire transfer, check or money order drawn on a U.S. bank, savings and
loan association or credit union. The Fund's custodian will charge a $______ fee
against your account, in addition to any loss sustained by the Fund, for any
payment check returned to the custodian for insufficient funds. If you place an
order for Fund shares through a securities broker, and you place your order in
proper form before 4:00 p.m. Eastern time on any business day in accordance with
their procedures, your purchase will be processed at the NAV calculated at 4:00
p.m. on that day, provided the securities broker transmits your order to the
Transfer Agent before 5:00 p.m. Eastern time. The securities broker must send to
the Transfer Agent immediately available funds in the amount of the purchase
price within three business days of placing the order.
HOW TO SELL (REDEEM) YOUR SHARES
You may sell your shares at any time. You may request the sale of your shares
either by mail, by telephone or by wire.
By Mail
- -------
Sale requests should be mailed via U.S. mail or overnight courier service to:
Mutual Shareholder Services
1301 East 9th Street, Suite 1005
Cleveland, OH 44114
The redemption price you receive will be the Fund's per share NAV next
calculated after receipt of all required documents in "Good Order".
10
<PAGE>
"Good order" means that your redemption request must include:
1. Your account number.
2. The number of shares to be sold (redeemed) or the dollar value of the
amount to be redeemed.
3. The signatures of all account owners exactly as they are registered on the
account.
4. Any required signature guarantees.
5. Any supporting legal documentation that is required in the case of estates,
trusts, corporations or partnerships and certain other types of accounts.
Payment of redemption proceeds will be made no later than the third business day
after the valuation date unless otherwise expressly agreed by the parties at the
time of the transaction. If you purchase your shares by check and then redeem
your shares before your check has cleared, the Fund may hold your redemption
proceeds until your check clears, or for 15 days, whichever comes first.
Signature Guarantees --
- --------------------
A signature guarantee of each owner is required to redeem shares in the
following situations, for all size transactions:
o if you change the ownership on your account;
o when you want the redemption proceeds sent to a different address than is
registered on the account;
o if the proceeds are to be made payable to someone other than the account's
owner(s);
o any redemption transmitted by federal wire transfer to your bank; and
o if a change of address request has been received by the Fund or the
Transfer Agent within 15 days previous to the request for redemption.
In addition, signature guarantees are required for all redemptions of $25,000 or
more from any Fund shareholder account. A redemption will not be processed until
the signature guarantee, if required, is received by the Transfer Agent.
Signature guarantees are designed to protect both you and the Fund from fraud.
To obtain a signature guarantee, you should visit a bank, trust company, member
of a national securities exchange, other broker-dealer, or other eligible
guarantor institution. (Notaries public cannot provide signature guarantees.)
Guarantees must be signed by an authorized person at one of these institutions
and be accompanied by the words, "Signature Guarantee."
By Telephone
- ------------
You may redeem your shares in the Fund by calling the Transfer Agent at
1-800-___-____ if you elected to use telephone redemption on your account
application when you initially purchased shares. Redemption proceeds must be
transmitted directly to you or to your pre-designated account at a domestic
bank. You may not redeem by telephone if a change of address request has been
received by the Fund or the Transfer Agent within 15 days prior to the request
for redemption. During periods of substantial economic or market changes,
telephone redemptions may be difficult to implement. If you are unable to
contact the Transfer Agent by telephone, shares may be redeemed by delivering
your redemption request in person or by mail. In addition, interruptions in
telephone service may mean that you will be unable to effect a redemption by
telephone exactly when desired.
11
<PAGE>
By Wire
- -------
You may request the redemption proceeds be wired to your designated bank if it
is a member bank or a correspondent of a member bank of the Federal Reserve
System. The Fund's Custodian charges a $___ fee for outgoing wires.
Redemption At The Option Of The Fund
- ------------------------------------
If the value of the shares in your account falls to less than $2000, the Fund
may notify you that, unless your account is increased to $2000 in value, it will
redeem all your shares and close the account by paying you the redemption
proceeds and any dividends and distributions declared and unpaid at the date of
redemption. You will have thirty days after notice to bring the account up to
$2000 before any action is taken. This right of redemption shall not apply if
the value of your account drops below $2000 as the result of market action. The
Fund reserves this right because of the expense to the Fund of maintaining
relatively small accounts.
DIVIDENDS AND DISTRIBUTIONS
Dividends paid by the Fund are derived from its net investment income. Net
investment income will be distributed at least annually. The Fund's net
investment income is made up of dividends received from the stocks it holds, as
well as interest accrued and paid on any other obligations that might be held in
its portfolio.
The Fund realizes capital gains when it sells a security for more than it paid
for it. The Fund may make distributions of its net realized capital gains (after
any reductions for capital loss carry forwards), generally, once a year.
Unless you elect to have your distributions paid in cash, your distributions
will be reinvested in additional shares of the Fund. You may change the manner
in which your dividends are paid at any time by writing to the Transfer Agent.
TAX CONSIDERATIONS
The Fund intends to qualify as a regulated investment company under Subchapter M
of the Internal Revenue Code of 1986, as amended, so as to be relieved of
federal income tax on its capital gains and net investment income currently
distributed to its shareholders.
Dividends from investment income and net short-term capital gains are generally
taxable to you as ordinary income. Distributions of long-term capital gains are
taxable as long-term capital gains regardless of the length of time shares in
the Fund have been held. Distributions are taxable, whether received in cash or
reinvested in shares of the Fund.
You will be advised annually of the source of distributions for federal income
tax purposes.
12
<PAGE>
A redemption of shares is a taxable event and, accordingly, a capital gain or
loss may be recognized. You should consult a tax adviser regarding the effect of
federal, state, local, and foreign taxes on an investment in the Fund.
GENERAL INFORMATION
The Fund will not issue stock certificates evidencing shares. Instead, your
account will be credited with the number of shares purchased, relieving you of
responsibility for safekeeping of certificates and the need to deliver them upon
redemption. Written confirmations are issued for all purchases of shares.
In reports or other communications to investors, or in advertising material, the
Fund may describe general economic and market conditions affecting the Fund and
may compare its performance with other mutual funds as listed in the rankings
prepared by Lipper Analytical Services, Inc. or similar nationally recognized
rating services and financial publications that monitor mutual fund performance.
The Fund may also, from time to time, compare its performance to the one or more
appropriate indices.
13
<PAGE>
FOR MORE INFORMATION
Additional information about the Fund is available in the Fund's Statement of
Additional Information (SAI). The SAI contains more detailed information on all
aspects of the Fund. A current SAI, dated December 15, 1999, has been filed with
the SEC and is incorporated by reference into this prospectus.
To receive information concerning the Fund, or to request a copy of the SAI or
other documents relating to the Fund, please contact the Fund at:
Fairholme Funds, Inc.
c/o Mutual Shareholder Services
1301 East 9th Street, Suite 1005
Cleveland, OH 44114
1-800-___-____
A copy of your requested document(s) will be sent to you within three days of
your request.
You may also receive information concerning the Fund, or request a copy of the
SAI or other documents relating to the Fund, by contacting the Securities and
Exchange Commission:
IN PERSON: at the SEC's Public Reference Room in Washington, D.C.
BY PHONE: 1-800-SEC-0330
BY MAIL: Public Reference Section, Securities and Exchange Commission,
Washington, D.C. 20549-6009 (duplicating fee required)
ON THE INTERNET: www.sec.gov
Investment Company Act No.
811-_____
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Part B
STATEMENT OF ADDITIONAL INFORMATION
Dated December 15, 1999
FAIRHOLME FUNDS, INC.
51 JFK Parkway
Short Hills, NJ 07078
1-800-___-____
This Statement of Additional Information is not a prospectus and should be read
in conjunction with the Prospectus of the Fairholme Fund ("Fund"), dated
December 15, 1999. You may obtain a copy of the Prospectus, free of charge, by
writing to Fairholme Funds, Inc. ("Company") c/o Mutual Shareholder Services,
1301 East 9th Street, Cleveland, OH 44114, or by calling 1-800-___-____.
TABLE OF CONTENTS
The Fund's Investment Policies, Objectives And Securities Options ........ 2
Investment Restrictions .................................................. 6
Investment Adviser ....................................................... 7
Directors and Officers ................................................... 8
Performance Information .................................................. 9
Purchasing and Redeeming Shares .......................................... 10
Tax Information .......................................................... 10
Portfolio Transactions ................................................... 12
Custodian ................................................................ 12
Transfer Agent ........................................................... 13
Administration ........................................................... 13
Distributor .............................................................. 13
Independent Accountants .................................................. 14
Legal Counsel ............................................................ 14
General Information ...................................................... 14
Financial Statements ..................................................... 15
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THE FUND'S INVESTMENT POLICIES, OBJECTIVES AND SECURITIES OPTIONS
The Fund's investment objectives and the manner in which the Fund pursues its
investment objectives are generally discussed in the prospectus. This section
provides information concerning the Fund's additional investment policies,
objectives and securities in which the Fund may invest but which are not part of
the Fund's primary investment strategies.
The Fund is a non-diversified Fund, meaning that the Fund can concentrate its
investments in a smaller number of companies than a more diversified fund. The
Fund normally will invest at least 75% of total assets in common stock of U.S.
companies and ADRs of foreign companies, and will normally hold a focused
portfolio consisting of not more than 25 stocks. The Fund may also invest in a
variety of other securities. These other types of securities in which the Fund
may invest are listed below, along with any restrictions on such investments,
and, where necessary, a brief discussion of any risks unique to the particular
security.
REAL ESTATE INVESTMENT TRUSTS. The Fund may invest in real estate investment
trusts (REITs). Equity REITs invest directly in real property while mortgage
REITs invest in mortgages on real property. REITs may be subject to certain
risks associated with the direct ownership of real estate, including declines in
the value of real estate, risks related to general and local economic
conditions, overbuilding and increased competition, increases in property taxes
and operating expenses, and variations in rental income. REITs pay dividends to
their shareholders based upon available funds from operations. It is quite
common for these dividends to exceed the REITs taxable earnings and profits
resulting in the excess portion of such dividends being designated as a return
of capital. The Fund intends to include the gross dividends from such REITs in
its distribution to its shareholders and, accordingly, a portion of the Fund's
distributions may also be designated as a return of capital. The Fund will not
invest more than 20% of its assets in REITS.
FOREIGN SECURITIES. The Fund may invest up to 25% of its total net assets in the
common stock of foreign issuers traded on U.S. exchanges. The Fund may also
invest in foreign securities in the form of American Depository Receipts (ADRs).
The Fund will only invest in ADRs that are issuer sponsored. Sponsored ADRs
typically are issued by a U.S. bank or trust company and evidence ownership of
underlying securities issued by a foreign corporation.
Investments in foreign companies involve certain risks not typically associated
with investing in domestic companies. An investment may be affected by changes
in currency rates and in exchange control regulations. There may be less
publicly available information about a domestic company than about a domestic
company, because foreign companies are not subject to the regulatory
requirements of U.S. companies. Foreign companies generally are not subject to
uniform accounting, auditing and financial reporting standards. Dividends and
interest on foreign securities may be subject to foreign withholding taxes. Such
taxes may reduce the net return to Fund shareholders. Foreign securities are
often denominated in a currency other than the U.S. dollar. Accordingly, the
Fund will be subject to the risks associated with fluctuations in currency
values. Although the Fund will only invest in foreign issuers that are domiciled
in nations considered to have stable and friendly governments, there is the
possibility of expropriation, confiscation, taxation, currency blockage or
political or social instability which could negatively affect the Fund.
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PREFERRED STOCK. The Fund may invest in preferred stock. Preferred stock
generally pays dividends at a specified rate and generally has preference over
common stock in the payments of dividends and the liquidation of the issuer's
assets. Dividends on preferred stock are generally payable at the discretion of
the issuer's board of directors. Accordingly, shareholders may suffer a loss of
value if dividends are not paid. The market prices of preferred stocks are also
sensitive to changes in interest rates and in the issuer's creditworthiness.
Accordingly, shareholders may experience a loss of value due to adverse interest
rate movements or a decline in the issuer's credit rating.
CONVERTIBLE SECURITIES. Traditional convertible securities include corporate
bonds, notes and preferred stocks that may be converted into or exchanged for
common stock, and other securities that also provide an opportunity for equity
participation. These securities are generally convertible either at a stated
price or a stated rate (that is, for a specific number of shares of common stock
or other security). As with other fixed income securities, the price of a
convertible security to some extent varies inversely with interest rates. While
providing a fixed-income stream (generally higher in yield than the income
derivable from a common stock but lower than that afforded by a non-convertible
debt security), a convertible security also affords the investor an opportunity,
through its conversion feature, to participate in the capital appreciation of
the common stock into which it is convertible. As the market price of the
underlying common stock declines, convertible securities tend to trade
increasingly on a yield basis and so may not experience market value declines to
the same extent as the underlying common stock. When the market price of the
underlying common stock increases, the price of a convertible security tends to
rise as a reflection of the value of the underlying common stock. To obtain such
a higher yield, the Fund may be required to pay for a convertible security an
amount in excess of the value of the underlying common stock. Common stock
acquired by the Fund upon conversion of a convertible security will generally be
held for so long as the Advisor anticipates such stock will provide the Fund
with opportunities which are consistent with the Fund's investment objectives
and policies.
DEBT SECURITIES. The Fund may invest in U.S. Government debt securities. U.S.
Government securities include direct obligations of the U.S. Government and
obligations issued by U.S. Government agencies and instrumentalities. The market
value of such securities fluctuates in response to interest rates and the
creditworthiness of the issuer. In the case of securities backed by the full
faith and credit of the United States Government, shareholders are only exposed
to interest rate risk.
Credit Risk- A debt instrument's credit quality depends on the issuer's
ability to pay interest on the security and repay the debt: the lower the
credit rating, the greater the risk that the security's issuer will
default. The credit risk of a security may also depend on the credit
quality of any bank or financial institution that provides credit
enhancement for the security.
Interest Rate Risk- All debt securities face the risk that their principal
value will decline because of a change in interest rates. Generally,
investments subject to interest rate risk will decrease in value when
interest rates rise and will rise in value when interest rates decline.
Also, the longer a security has until it matures, the more pronounced will
be a change in its value when interest rates change.
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MONEY MARKET MUTUAL FUNDS. The Fund may invest in securities issued by other
registered investment companies. As a shareholder of another registered
investment company, the Fund would bear its pro rata portion of that company's
advisory fees and other expenses. Such fees and expenses will be borne
indirectly by the Fund's shareholders.
REPURCHASE AGREEMENTS. The Fund may invest a portion of its assets in repurchase
agreements ("Repos") with broker-dealers, banks and other financial
institutions, provided that the Fund's custodian at all times has possession of
the securities serving as collateral for the Repos or has proper evidence of
book entry receipt of said securities. In a Repo, the Fund purchases securities
subject to the seller's simultaneous agreement to repurchase those securities
from the Fund at a specified time (usually one day) and price. The repurchase
price reflects an agreed-upon interest rate during the time of investment. All
Repos entered into by the Fund must be collateralized by U.S. Government
Securities, the market values of which equal or exceed 102% of the principal
amount of the money invested by the Fund. If an institution with whom the Fund
has entered into a Repo enters insolvency proceedings, the resulting delay, if
any, in the Fund's ability to liquidate the securities serving as collateral
could cause the Fund some loss if the securities declined in value prior to
liquidation. To minimize the risk of such loss, the Fund will enter into Repos
only with institutions and dealers considered creditworthy.
Repurchase Agreement Risk- A repurchase agreement exposes the Fund to the
risk that the party that sells the securities will default on its
obligation to repurchase those securities. If that happens the Fund can
lose money because: (i) it may not be able to sell the securities at the
agreed-upon time and price; and (ii) the securities may lose value before
they can be sold.
CASH RESERVES. The Fund may hold a significant portion of its net assets in
cash, either to maintain liquidity or for temporary defensive purposes.
RESTRICTED AND ILLIQUID SECURITIES. The Fund will not invest more than 15% of
its net assets in securities that the Adviser determines to be illiquid.
Illiquid securities are securities that may be difficult to sell promptly at an
acceptable price because of a lack of an available market and other factors. The
sale of some illiquid and other types of securities may be subject to legal
restrictions. Because illiquid and restricted securities may present a greater
risk of loss than other types of securities, the Fund will not invest in such
securities in excess of the limits set forth above.
The Fund may also invest in securities acquired in a privately negotiated
transaction from the issuer or a holder of the issuer's securities and which may
not be distributed publicly without registration under the Securities Act of
1933.
Restricted and illiquid securities are valued in such manner as the Fund's Board
of Directors ("Board" or "Directors") in good faith deems appropriate to reflect
the fair market value of such securities.
SPECIAL SITUATIONS. The Fund intends to invest in special situations from time
to time. A special situation arises when, in the opinion of Fund management, the
securities of a company will, within
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a reasonably estimated time period, be accorded market recognition at an
appreciated value solely by reason of a development particularly or uniquely
applicable to that company and regardless of general business conditions or
movements of the market as a whole. Such developments and situations include,
but are not limited to: liquidations, reorganizations, recapitalizations or
mergers, material litigation, technological breakthroughs, and new management or
management policies. Although large and well-known companies may be involved,
special situations often involve much greater risk than is found in the normal
course of investing. To minimize these risks, the Fund will not invest in
special situations unless the target company has at least three years of
continuous operations (including predecessors), or unless the aggregate value of
such investments is not greater than 25% of the Fund's total net assets (valued
at the time of investment).
WHEN-ISSUED SECURITIES AND DELAYED-DELIVERY TRANSACTIONS. The Fund may purchase
securities on a when-issued basis, and it may purchase or sell securities for
delayed-delivery. These transactions occur when securities are purchased or sold
by the Fund with payment and delivery taking place at some future date. The Fund
may enter into such transactions when, in the Adviser's opinion, doing so may
secure an advantageous yield and/or price to the Fund that might otherwise be
unavailable. The Fund has not established any limit on the percentage of assets
it may commit to such transactions, but to minimize the risks of entering into
these transactions, the Fund will maintain a segregated account with its
custodian consisting of cash, or other high-grade liquid debt securities,
denominated in U.S. dollars or non-U.S. currencies, in an amount equal to the
aggregate fair market value of its commitments to such transactions.
MASTER-FEEDER OPTION. Notwithstanding its other investment policies, the Fund
may seek to achieve its investment objective by investing all of its investable
net assets in another investment company having the same investment objective
and substantially the same investment policies and restrictions as those of the
Fund. Although such an investment may be made in the sole discretion of the
Directors, the Fund's shareholders will be given 30 days prior notice of any
such investment. There is no current intent to make such an investment.
PORTFOLIO TURNOVER. The Fund has no operating history and therefore has no
annual reportable portfolio turnover. The Fund will generally purchase and sell
securities without regard to the length of time the security has been held.
Accordingly, it can be expected that the rate of portfolio turnover may be
substantial. The Fund expects that its annual portfolio turnover rate will not
exceed 100% under normal conditions. However, there can be no assurance that the
Fund will not exceed this rate, and the portfolio turnover rate may vary from
year to year.
High portfolio turnover in any year will result in the payment by the Fund of
above-average transaction costs and could result in the payment by shareholders
of above-average amounts of taxes on realized investment gains. Distributions to
shareholders of such investment gains, to the extent they consist of short-term
capital gains, will be considered ordinary income for federal income tax
purposes.
Portfolio turnover rate is calculated by dividing (1) the lesser of purchases or
sales of portfolio securities for the for the fiscal year by (2) the monthly
average of the value of portfolio securities owned during the fiscal year. A
100% turnover rate would occur if all the securities in the Fund's
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portfolio, with the exception of securities whose maturities at the time of
acquisition were one year or less, were sold and either repurchased or replaced
within one year.
INVESTMENT RESTRICTIONS
The restrictions listed below are fundamental policies and may be changed only
with the approval of a "majority of the outstanding voting securities" of the
Fund as defined in the Investment Company Act of 1940 (the "1940 Act"). As
provided in the 1940 Act, a vote of a "majority of the outstanding voting
securities" of the Fund means the affirmative vote of the lesser of (1) more
than 50% of the outstanding shares of the Fund, or (2) 67% or more of the shares
of the Fund present at a meeting, if more than 50% of the shares are represented
at the meeting in person or by proxy. Except with respect to borrowing, changes
in values of the Fund's assets as a whole will not cause a violation of the
following investment restrictions so long as percentage restrictions are
observed by the Fund at the time it purchases any security.
The Fund will not:
1. With respect to 75% of its assets (valued at time of investment), normally
invest in more than 25 issuers.
2. Acquire securities of any one issuer that at the time of investment
represent more than 10% of the voting securities of the issuer.
3. Invest more than 25% of its assets (valued at time of investment) in
securities of companies in any one industry.
4. Borrow money, except from banks for temporary or emergency purposes in
amounts not exceeding 5% (valued at time of investment) of the value of the
Fund's assets at the time of borrowing.
5. Underwrite the distribution of securities of other issuers.
6. Invest in companies for the purpose of management or the exercise of
control.
7. Lend money (but this restriction shall not prevent the Fund from investing
in debt securities or repurchase agreements, or lend its portfolio
securities).
8. Issue senior securities.
9. Invest in commodities, futures contracts or options contracts.
The Fund has also adopted the following non-fundamental restrictions that may be
changed by the Board without shareholder approval:
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The Fund may not:
1. Make margin purchases.
2. Invest in oil, gas or other mineral exploration or development programs,
although it may invest in marketable securities of companies engaged in
oil, gas or mineral exploration.
3. Purchase or sell real estate or real estate loans or real estate limited
partnerships, although it may invest in marketable securities of companies
that invest in real estate or interests in real estate.
4. Invest more than 15% of its net assets (valued at time of investment) in
securities that are not readily marketable.
5. Acquire securities of other investment companies except as permitted by the
Investment Company Act of 1940.
6. Pledge, mortgage or hypothecate its assets, except for temporary or
emergency purposes and then to an extent not greater than 5% of its total
assets (valued at time of investment).
7. Invest more than 5% of the Fund's assets (valued at time of investment) in
securities of companies with less than 3 years continuous operations,
including predecessors.
INVESTMENT ADVISER
Information on the Fund's investment adviser, Fairholme Capital Management, LLC
(the "Adviser"), is set forth in the prospectus. This section contains
additional information concerning the Adviser.
The Adviser manages the investment portfolio and the general business affairs of
the Fund pursuant to an investment services agreement with the Fund dated
__________1999. Mr. Bruce R. Berkowitz is Managing Director and Chief Investment
Officer of the Adviser, Mr. Michael J. Senior is Chief Operating Officer of the
Adviser. Both persons serve as Directors and Officers of the Company. Mr.
Berkowitz is portfolio manager for the Fund.
The Investment Advisory Agreement.
- ----------------------------------
The Company has entered into an Investment Advisory Agreement ("Advisory
Agreement") with the Adviser. Under the terms of the Advisory Agreement, the
Adviser manages the investment operations of the Fund in accordance with the
Fund's investment policies and restrictions. The Adviser furnishes an investment
program for the Fund, determines what investments should be purchased, sold and
held, and makes changes on behalf of the Company in the investments of the Fund.
At all times the Adviser's actions on behalf of the Fund are subject to the
overall supervision and review of the Board.
The Advisory Agreement provides that the Adviser shall not be liable for any
loss suffered by the Fund or its shareholders as a consequence of any act or
omission in connection with services under the Advisory Agreement, except by
reason of the Adviser's willful misfeasance, bad faith, gross negligence, or
reckless disregard of its obligations and duties.
The Advisory Agreement has a term of two years, but may be continued thereafter
from year to year so long as its continuance is approved at least annually (a)
by the vote of a majority of the Directors of the Fund who are not "interested
persons" of the Fund or the Adviser cast in person at
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a meeting called for the purpose of voting on such approval, and (b) by the
Board of Directors as a whole or by the vote of a majority (as defined in the
1940 Act) of the outstanding shares of the Fund.
The Advisory Agreement will terminate automatically in the event of its
assignment (as defined in the 1940 Act).
For its investment advisory services to the Fund, the Company pays to the
Adviser, on the last day of each month, an annualized fee equal to 0.50% of
average net assets of the Fund, such fee to be computed daily based upon the
daily average net assets of the Fund.
The Operating Services Agreement
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The Company has also entered into an Operating Services Agreement with the
Adviser ("Services Agreement"). Under the terms of the Services Agreement, the
Adviser provides, or arranges to provide, day-to-day operational services to the
Fund including, but not limited to:
1. accounting 6. custodial
2. administrative 7. fund share distribution
3. legal (except litigation) 8. shareholder reporting
4. dividend disbursing and transfer agent 9. sub-accounting, and
5. registrar 10. record keeping services
For its services to the Fund under the Services Agreement, the Fund pays to the
Adviser, on the last day of each month, an annualized fee equal to 0.50% of
average net asset value of the Fund, such fee to be computed daily based upon
the net asset value of the Fund.
Under the Services Agreement, the Adviser may, with the Company's permission,
employ third parties to assist it in performing the various services required of
the Fund. The Adviser is responsible for compensating such parties.
The effect of the Advisory Agreement and the Operating Services Agreement
together is to place a "cap" on the Fund's normal operating expenses at 1.00%.
The only other expenses which may be incurred by the Fund are brokerage fees,
taxes, legal fees relating to Fund litigation, and other extraordinary expenses.
DIRECTORS AND OFFICERS
The Board Of Directors ("Board" or "Directors") has overall responsibility for
conduct of the Company's affairs. The day-to-day operations of the Fund are
managed by the Adviser, subject to the Bylaws of the Company and review by the
Board. The Directors of the Company, including those Directors who are also
officers, are listed below.
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<TABLE>
<CAPTION>
Position Principal Occupation for
Name, Age with Fund The Last Five Years
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
(1) Bruce R. Berkowitz*; President, Managing Director, Fairholme Capital
(Age 41) Director Management, LLC, a registered investment
51 JFK Parkway adviser.
Short Hills, NJ 07078
(2) Michael J. Senior* Secretary/Treasurer Chief Operating Officer, Fairholme
Capital (Age 49) Director Management, LLC, a registered investment
51 JFK Parkway adviser, since 1994.
Short Hills, NJ 07078
(3) Joel L. Uchenick Director Principal, Sherbrooke Associates, Inc., a
(Age __) ______________ firm, since _________.
217 Rowley Bridge Road
Toppsfield MA
(4) Additional independent director will be added by amendment.
(5) Additional independent director will be added by amendment.
</TABLE>
* Indicates an "interested person" as defined in the 1940 Act.
Pursuant to its obligations to the Company under the Services Agreement, the
Adviser is responsible for paying compensation, if any, to each of the Company's
Independent Directors during the fiscal year ending December 31, 2000.
Control Persons and Shareholders Owning in Excess of 5% of Fund Shares
- ----------------------------------------------------------------------
Mr. Berkowitz and Mr. Senior intend to purchase all of the outstanding shares of
the Fund prior to the Fund's effective date, and will accordingly be deemed to
then control the Fund.
PERFORMANCE INFORMATION
From time to time the Fund may quote total return figures. "Total Return" for a
period is the percentage change in value during the period of an investment in
Fund shares, including the value of shares acquired through reinvestment of all
dividends and capital gains distributions. "Average Annual Total Return" is the
average annual compounded rate of change in value represented by the Total
Return Percentage for the period.
Average Annual Total Return is computed as follows: P(1+T)[n] = ERV
Where: P = a hypothetical initial investment of $1000]
T = average annual total return
n = number of years
ERV = ending redeemable value of shares at the end of the period
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The Fund's performance is a function of conditions in the securities markets,
portfolio management, and operating expenses. Although information such as that
shown above is useful in reviewing the Fund's performance and in providing some
basis for comparison with other investment alternatives, it should not be used
for comparison with other investments using different reinvestment assumptions
or time periods.
In sales literature, the Fund's performance may be compared with that of market
indices and other mutual funds. In addition to the above computations, the Fund
might use comparative performance as computed in a ranking determined by Lipper
Analytical Services, Morningstar, Inc., or that of another service.
PURCHASING AND REDEEMING SHARES
Purchases and redemptions of the Fund's shares will be made at net asset value
("NAV"). The Fund's NAV is determined on days on which the New York Stock
Exchange ("NYSE") is open for trading. For purposes of computing the NAV of a
share of the Fund, securities traded on security exchanges, or in the
over-the-counter market in which transaction prices are reported, are valued at
the last sales price at the time of valuation or, lacking any reported sales on
that day, at the most recent bid quotations. Securities for which quotations are
not available and any other assets are valued at a fair market value as
determined in good faith by the Adviser, subject to the review and supervision
of the Board. The price per share for a purchase order or redemption request is
the NAV next determined after receipt of the order.
The Fund is open for business on each day that the NYSE is open. The Fund's
share price or NAV is normally determined as of 4:00 p.m., Eastern time. The
Fund's share price is calculated by subtracting its liabilities from the closing
fair market value of its total assets and dividing the result by the total
number of shares outstanding on that day. Fund liabilities include accrued
expenses and dividends payable, and its total assets include the market value of
the portfolio securities as well as income accrued but not yet received. Since
the Fund generally does not charge sales or redemption fees, the NAV is the
offering price for shares of the Fund.
TAX INFORMATION
The Fund intends to qualify as a regulated investment company ("RIC") under
Subchapter M of the Internal Revenue Code of 1986, as amended, so as to be
relieved of federal income tax on its capital gains and net investment income
currently distributed to its shareholders. To qualify as a RIC, the Fund must,
among other things, derive at least 90% of its gross income from dividends,
interest, payments with respect to securities loans, gains from the sale or
other disposition of stock, securities, or other income derived with respect to
its business of investing in such stock or securities.
If the Fund qualifies as a RIC and distributes at least 90% of its net
investment income, the Fund will not be subject to Federal income tax on the
income so distributed. However, the Fund would
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be subject to corporate income tax on any undistributed income other than
tax-exempt income from municipal securities.
The Fund intends to distribute to shareholders, at least annually, substantially
all net investment income and any net capital gains realized from sales of the
Fund's portfolio securities. Dividends from net investment income and
distributions from any net realized capital gains are reinvested in additional
shares of the Fund unless the shareholder has requested in writing to have them
paid by check.
If shares are purchased shortly before a record date for a distribution, the
shareholder will, in effect, receive a return of a portion of his investment,
but the distribution will be taxable to him even if the net asset value of the
shares is reduced below the shareholder's cost. However, for federal income tax
purposes the original cost would continue as the tax basis.
If a shareholder fails to furnish his social security or other tax
identification number or to certify properly that it is correct, the Fund may be
required to withhold federal income tax at the rate of 31% (backup withholding)
from dividend, capital gain and redemption payments to him. Dividend and capital
gain payments may also be subject to backup withholding if the shareholder fails
to certify properly that he is not subject to backup withholding due to the
under-reporting of certain income.
Taxation of the Shareholder. Taxable distributions generally are included in a
shareholder's gross income for the taxable year in which they are received.
However, dividends declared in October, November and December and made payable
to shareholders of record in such month will be deemed to have been received on
December 31st if paid by the Fund during the following January.
Distributions by the Fund will result in a reduction in the fair market value of
the Fund's shares. Should a distribution reduce the fair market value below a
shareholder's cost basis, such distribution would be taxable to the shareholder
as ordinary income or as a long-term capital gain, even though, from an
investment standpoint, it may constitute a partial return of capital. In
particular, investors should be careful to consider the tax implications of
buying shares of the Fund just prior to a distribution. The price of such shares
include the amount of any forthcoming distribution so that those investors may
receive a return of investment upon distribution which will, nevertheless, be
taxable to them.
Dividends. A portion of the Fund's income may qualify for the dividends-received
deduction available to corporate shareholders to the extent that the Fund's
income is derived from qualifying dividends. Because the Fund may earn other
types of income, such as interest, income from securities loans, non-qualifying
dividends, and short-term capital gains, the percentage of dividends from the
Fund that qualifies for the deduction generally will be less than 100%. The Fund
will notify corporate shareholders annually of the percentage of Fund dividends
that qualifies for the dividend received deductions.
A portion of the Fund's dividends derived from certain U.S. Government
obligations may be exempt from state and local taxation. Short-term capital
gains are distributed as dividend income. The Fund will send each shareholder a
notice in January describing the tax status of dividends and capital gain
distributions for the prior year.
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PORTFOLIO TRANSACTIONS
Decisions to buy and sell securities for the Fund are made by the Adviser. In
placing purchase and sale orders for portfolio securities for the Fund, it is
the policy of the Adviser to seek the best execution of orders at the most
favorable price. In selecting brokers to effect portfolio transactions, the
determination of what is expected to result in the best execution at the most
favorable price involves a number of largely judgmental considerations. Among
these are the Adviser's evaluation of the broker's efficiency in executing and
clearing transactions, the rate of commission or the size of the broker-dealer's
"spread", the size and difficulty of the order, the nature of the market for the
security, operational capabilities of the broker-dealer, and the research and
other services provided.
The Adviser may purchase or sell portfolio securities on behalf of the Fund in
agency or principal transactions. In agency transactions, the Fund generally
pays brokerage commissions. In principal transactions, the Fund generally does
not pay commissions. However, the price paid for the security may include an
undisclosed commission or "mark-up" or selling concessions. The Adviser normally
purchases fixed-income securities on a net basis from primary market makers
acting as principals for the securities. The Adviser may purchase certain money
market instruments directly from an issuer without paying commissions or
discounts. Over-the-counter securities are generally purchased and sold directly
with principal market makers who retain the difference in their cost in the
security and its selling price. In some instances, the Adviser feels that better
prices are available from non-principal market makers who are paid commissions
directly.
The Adviser may combine transaction orders placed on behalf of the Fund with
orders placed on behalf of any other fund or private account managed by the
Adviser for the purpose of obtaining a more favorable transaction price. If an
aggregated trade is not completely filled, then the Adviser typically allocates
the trade among the funds or accounts, as applicable, on a pro rata basis based
upon account size. Exemptions are permitted on a case-by-case basis when judged
by the Adviser to be fair and reasonable to the funds or accounts involved.
Trading by the Portfolio Manager
- --------------------------------
Pursuant to Section 17(j) of the 1940 Act and Rule 17j-1 thereunder, the Fund,
the Adviser, and the Distributor have adopted Codes of Ethics restricting
personal securities trading by the Fund's Portfolio Manager. These Codes are on
public file, and are available from the Securities and Exchange Commission.
While the Codes permit personal transactions by the Portfolio Manager in
securities held or to be acquired by the Fund, the Codes prohibit and are
designed to prevent fraudulent activity in connection with such personal
transactions.
CUSTODIAN
UMB Bank, N.A., 1010 Grand Boulevard, Kansas City, Missouri 64106 ("UMB"), acts
as custodian for the Fund. As such, UMB holds all securities and cash of the
Fund, delivers and receives payment for securities sold, receives and pays for
securities purchased, collects income from investments and performs other
duties, all as directed by officers of the Company. UMB does not exercise any
supervisory function over management of the Fund, the purchase and sale of
securities or the payment of distributions to shareholders.
12
<PAGE>
TRANSFER AGENT
Mutual Shareholder Services, 123 Main Street, Cleveland, OH 44114 ("MSS") acts
as transfer, dividend disbursing, and shareholder servicing agent for the Fund
pursuant to a written agreement with the Company and the Adviser. Under the
agreement, MSS is responsible for administering and performing transfer agent
functions, dividend distribution, shareholder administration, and maintaining
necessary records in accordance with applicable rules and regulations.
For the services to be rendered as transfer agent, the Adviser shall pay MSS an
annual fee, paid monthly, based on the average net assets of the Fund, as
determined by valuations made as of the close of each business day of the month.
ADMINISTRATION
MSS also performs certain administrative tasks administrator for the Fund
pursuant to a written agreement with the Company and Adviser. MSS supervises all
aspects of the operations of the Fund except those reserved by the Fund's
investment adviser under it's service agreements with the Company. MSS is
responsible for:
(a) calculating the Fund's net asset value;
(b) preparing and maintaining the books and accounts specified in Rule 31a-1;
and 31a-2 of the Investment Company Act of 1940;
(c) preparing financial statements contained in reports to stockholders of the;
Fund
(d) preparing the Fund's federal and state tax returns;
(e) preparing reports and filings with the Securities and Exchange Commission;
(f) preparing filings with state Blue Sky authorities; and
(g) maintaining the Fund's financial accounts and records.
For the services to be rendered as administrator, the Adviser shall pay MSS an
annual fee, paid monthly, based on the average net assets of the Fund, as
determined by valuations made as of the close of each business day of the month.
DISTRIBUTOR
Maxus Securities Corp. ("Maxus"), 1301 East 9th Street, Cleveland, OH 44114,
acts as the principal underwriter of the Fund's shares pursuant to a written
agreement with the Fund and the Adviser ("Distribution Agreement").
Pursuant to the Distribution Agreement, Maxus facilitates the registration of
the Funds' shares under state securities laws and assists in the sale of shares.
For providing underwriting services to the Fund, PU is paid an annual fixed fee
by the Adviser .
The Adviser shall bear the expense of all filing or registration fees incurred
in connection with the registration of the Fund's shares under state securities
laws.
13
<PAGE>
The Distribution Agreement may be terminated by either party upon 60 days' prior
written notice to the other party.
INDEPENDENT ACCOUNTANTS
McCurdy & Associates CPA's, Inc., 27955 Clemens Road, Westlake, OH 44145, will
serve as the Company's independent auditors for its first fiscal year.
LEGAL COUNSEL
David Jones & Assoc., P.C., 799 State Street, PMB 234, Pottstown, PA 19464, has
passed on certain matters relating to this registration statement and acts as
counsel to the Company.
GENERAL INFORMATION
Fairholme Funds, Inc., an open-end diversified management investment company,
was incorporated in Maryland on September 30, 1999. The Fund is a
non-diversified series of the Company. The affairs of the Company are managed by
a Board of Directors. The Board has delegated the day-to-day operations of the
Fund to the Adviser, which operates the Fund under the Board's general
supervision.
The Company's Articles of Incorporation permit the Board to issue 100,000,000
shares of common stock. The Board has the power to designate one or more
separate and distinct series and/or classes of shares of common stock and to
classify or reclassify any unissued shares with respect to such series.
Currently, the Fund is the only series of shares being offered by the Company.
Shareholders are entitled to: one vote per full share; to such distributions as
may be declared by the Company's Board of Directors out of funds legally
available; and upon liquidation, to participate ratably in the assets available
for distribution.
There are no conversion or sinking fund provisions applicable to the shares, and
shareholders have no preemptive rights and may not cumulate their votes in the
election of directors. The shares are redeemable and are fully transferable. All
shares issued and sold by the Fund will be fully paid and nonassessable.
According to the law of Maryland under which the Company is incorporated, and
the Company's Bylaws, the Company is not required to hold an annual meeting of
shareholders unless required to do so under the Investment Company Act of 1940.
Accordingly, the Company will not hold annual shareholder meetings unless
required to do so under the Act. Shareholders do have the right to call a
meeting of shareholders for the purpose of voting to remove directors. The
Company will call a meeting of shareholders for the purpose of voting upon the
question of removal of a director or directors when requested in writing to do
so by record holders of at least 10% of the Fund's outstanding common shares.
14
<PAGE>
FINANCIAL STATEMENTS
Audited financial statements with respect to the pre-operating period of the
Fund are included as an exhibit to this document.
15
<PAGE>
PART C
------
OTHER INFORMATION
Item 23. Financial Statements and Exhibits
(a) Articles of Incorporation --- Filed herewith as Exhibit 23A
(b) By-Laws --- Filed herewith as Exhibit 23B
(c) Instruments defining rights of Shareholders --- None, See Articles of
Incorporation
(d) Investment Advisory Contracts --- Filed herewith as Exhibit 23D
(e) Underwriting Contracts --- *
(f) Bonus or Profit Sharing Contracts --- None
(g) Custodian Agreements --- *
(h) Other Material Contracts ---
(1) Operating Services Agreement --- Filed herewith as Exhibit 23H(1)
(2) Transfer Agency Agreement --- *
(3) Engagement Letter for Legal Services --- *
(i) Legal Opinion --- *
(j) Other opinions --- *
(k) Omitted Financial statements --- None
(l) Initial Capital Agreements --- *
(m) Rule 12b-1 Plan --- Not Applicable
(n) Financial Data Schedule --- Not Applicable
(o) Rule 18f-3 Plan --- None
* To be filed by amendment
Item 24. Persons Controlled by or Under Common Control With Registrant
-------------------------------------------------------------
There are no persons controlled by or under common control with the Fund.
Item 25. Indemnification
---------------
(a) General. The Articles of Incorporation (the "Articles") of the Corporation
provide that to the fullest extent permitted by Maryland and federal
statutory and decisional law, as amended or interpreted, no director or
officer of this Corporation shall be personally liable to the Corporation
or the holders of shares for money damages for breach of fiduciary duty as
a director and each director and officer shall be indemnified by the
Corporation; provided, however, that nothing herein shall be deemed to
protect any director or officer of the Corporation against any liability to
the Corporation or the holders of shares to which such director or officer
would otherwise be subject by reason of breach of the director's or
officer's duty of loyalty to the Corporation or its stockholders, for acts
or omissions not in good faith or which involved intentional misconduct or
a knowing violation of law or for any transaction from which the director
derived any improper personal benefit.
<PAGE>
The By-Laws of the Corporation, Article VI, provide that the Corporation
shall indemnify to the fullest extent required or permitted under Maryland
law or The Investment Company Act of 1940, as either may be amended from
time to time, any individual who is a director or officer of the
Corporation and who, by reason of his or her position was, is or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter collectively referred to as a "Proceeding")
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by such director or officer in connection with such
Proceeding, to the fullest extent that such indemnification may be lawful
under Maryland law or the Investment Company Act of 1940.
(b) Disabling Conduct. No director or officer shall be protected against any
liability to the Corporation or its shareholders if such director or
officer would be subject to such liability by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office (such conduct
hereinafter referred to as "Disabling Conduct").
Article 2-418 of the General Corporation Laws of Maryland provides that no
indemnification of a director or officer may be made unless: (1) there is a
final decision on the merits by a court or other body before whom the
Proceeding was brought that the director or officer to be indemnified was
not liable by reason of Disabling Conduct; or (2) in the absence of such a
decision, there is a reasonable determination, based upon a review of the
facts, that the director or officer to be indemnified was not liable by
reason of Disabling Conduct, which determination shall be made by: (i) the
vote of a majority of a quorum of directors who are neither "interested
persons" of the Corporation as defined in Section 2(a)(19) of the
Investment Company Act of 1940, nor parties to the Proceeding; or (ii) an
independent legal counsel in a written opinion.
(c) Standard of Conduct. The Corporation may not indemnify any director if it
is proved that: (1) the act or omission of the director was material to the
cause of action adjudicated in the Proceeding and (i) was committed in bad
faith or (ii) was the result of active and deliberate dishonesty; or (2)
the director actually received an improper personal benefit; or (3) in the
case of a criminal proceeding, the director had reasonable cause to believe
that the act or omission was unlawful. No indemnification may be made under
Maryland law unless authorized for a specific proceeding after a
determination has been made, in accordance with Maryland law, that
indemnification is permissible in the circumstances because the requisite
standard of conduct has been met.
(d) Required Indemnification. A director or officer who is successful, on the
merits or otherwise, in the defense of any Proceeding shall be indemnified
against reasonable expenses incurred by the director or officer in
connection with the Proceeding. In addition, under Maryland law, a court of
appropriate jurisdiction may order indemnification under certain
circumstances.
(e) Advance Payment. The Corporation may pay any reasonable expenses so
incurred by any director or officer in defending a Proceeding in advance of
the final disposition thereof to the fullest extent permissible under
Maryland law. Such advance payment of expenses shall be
<PAGE>
made only upon the undertaking by such director or officer to repay the
advance unless it is ultimately determined that such director or officer is
entitled to indemnification, and only if one of the following conditions is
met: (1) the director or officer to be indemnified provides a security for
his undertaking; (2) the Corporation shall be insured against losses
arising by reason of any lawful advances; or (3) there is a determination,
based on a review of readily available facts, that there is reason to
believe that the director or officer to be indemnified ultimately will be
entitled to indemnification, which determination shall be made by: (i) a
majority of a quorum of directors who are neither "interested persons" of
the Corporation, as defined in Section 2(a)(19) of the Investment Company
Act of 1940, nor parties to the Proceeding; or (ii) an independent legal
counsel in a written opinion.
(f) Insurance. To the fullest extent permitted by Maryland law and Section
17(h) of the Investment Company Act of 1940, the Corporation may purchase
and maintain insurance on behalf of any officer or director of the
Corporation, against any liability asserted against him or her and incurred
by him or her in and arising out of his or her position, whether or not the
Corporation would have the power to indemnify him or her against such
liability.
Item 26. Business and Other Connections of Investment Adviser
----------------------------------------------------
None.
Item 27. Principal Underwriter
---------------------
Maxus Securities Corp., 1301 East 9th Street, Cleveland, OH 44115 ("Maxus"),
acts as principal underwriter for the Fund. Maxus is a registered broker-dealer,
and offers underwriting services to a number of mutual funds nationwide.
Pursuant to its agreement with the Fund, Maxus offers shares of the Fund to the
public on a continuous basis. Maxus is not obligated to sell any fixed number of
shares, but only to sell shares to fill orders as received by Maxus.
Neither Maxus nor any person affiliated with Maxus is an affiliated person of
the Fund.
Item 28. Location of Accounts and Records
--------------------------------
The books and records of the Fund, other than the accounting and transfer agency
(including dividend disbursing) records, are maintained by the Fund at 51 JFK
Parkway, Short Hills, NJ 07078. The Fund's accounting and transfer agency
records are maintained at Mutual Shareholder Services 123 Main Street,
Cleveland, OH 44114.
Item 29. Management Services
-------------------
None
<PAGE>
Item 30. Undertakings
------------
The Registrant undertakes to file an amendment to the registration statement
with certified financial statements showing the initial capital received before
accepting subscriptions from more than 25 persons in the event the Fund chooses
to raise its initial capital under Section 14(a)(3) of the Investment Company
Act of 1940.
<PAGE>
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, hereunto duly
authorized in Washington, DC on the 5th day of October, 1999.
FAIRHOLME FUNDS, INC.
/s/ Bruce R. Berkowitz
- ----------------------
By: BRUCE R. BERKOWITZ
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 date indicated:
FAIRHOLME FUNDS, INC.
NAME TITLE DATE
/s/ Bruce R. Berkowitz President & October 6, 1999
- ----------------------------- Director
BRUCE R. BERKOWITZ
/s/ Michael J. Senior Secretary/ October 6, 1999
- ----------------------------- Treasurer
MICHAEL J. SENIOR Director
/s/ Joel L. Uchenick Director October 6, 1999
- -----------------------------
JOEL L. UCHENICK
<PAGE>
EXHIBIT INDEX
EXHIBIT 23A- Articles of Incorporation of Fairholme Funds, Inc.
EXHIBIT 23B- By-Laws of Fairholme Funds, Inc.
EXHIBIT 23D Investment Advisory Agreement
EXHIBIT 23H(1) Operating Services Agreement
EXHIBIT 23A
ARTICLES OF INCORPORATION
OF
FAIRHOLME FUNDS, INC.
FIRST: The undersigned, Staci E. Drake, whose post office address is 799 State
Street, PMB 234, Pottstown, PA 19464, being at least eighteen years of age, does
hereby form a corporation under the General Laws of the State of Maryland.
SECOND: The name of the corporation (which is hereinafter called the
Corporation) is:
FAIRHOLME FUNDS, INC.
THIRD: The purposes for which the Corporation is formed are to act as an
open-end management investment company, as contemplated by the Investment
Company Act of 1940, as amended ("1940 Act"), and to exercise and enjoy all of
the powers, rights and privileges granted to, or conferred upon, corporations by
the General Laws of the State of Maryland now or hereafter in force, including,
without limitation:
(a) To hold, invest and reinvest the funds of the Corporation, and in
connection therewith to hold part or all of its funds in cash, and to
purchase, subscribe for or otherwise acquire, to hold for investment
or otherwise, to trade and deal in, write, sell, assign, negotiate,
transfer, exchange, lend, pledge or otherwise dispose of or turn to
account or realize upon, securities of any corporation, company,
association, trust, firm, partnership, or other organization however
or wherever established or organized, as well as securities created or
issued by any United States or foreign issuer (which term "issuer"
shall, for the purpose of these Articles of Incorporation, without
limiting the generality thereof, be deemed to include any persons,
firms, associations, partnerships, corporations, syndicates,
combinations, organizations, governments or subdivisions, agencies or
instrumentalities of any government); and to exercise, as owner or
holder of any securities, all rights, powers and privileges in respect
thereof, including the right to vote thereon; to aid by further
investment any issuer, any obligation of or interest in which is held
by the Corporation or in the affairs of which the Corporation has any
direct or indirect interest; to guarantee or become surety on any or
all of the contracts, stocks, bonds, notes, debentures and other
obligations of any corporation, company, trust, association or firm;
and to do any and all acts and things for the preservation,
protection, improvement and enhancement in value of any and all such
securities.
<PAGE>
For the purposes of these Articles of Incorporation, as the same may
be supplemented or amended, the term "securities" shall be deemed to
include, without limiting the generality thereof, any stocks, Shares,
bonds, debentures, bills, notes, mortgages and any other obligations
or evidences of indebtedness, and any options, certificates, receipts,
warrants, futures or forward contracts, or other instruments
representing rights to receive, purchase, subscribe for or sell the
same, or evidencing or representing any other direct or indirect
rights or interests therein, including all rights of equitable
ownership therein, or in any property or assets; and any negotiable or
non-negotiable instruments, including money market instruments, bank
certificates of deposit, finance paper, commercial paper, bankers'
acceptances and all types of repurchase or reverse repurchase
agreements; interest rate protection instruments; and derivative or
synthetic instruments.
(b) To acquire all or any part of the goodwill, rights, property and
business of any person, firm, association or corporation heretofore or
hereafter engaged in any business similar to any business which the
Corporation has the power to conduct, and to hold, utilize, enjoy and
in any manner dispose of the whole or any part of the rights, property
and business so acquired, and to assume in connection therewith any
liabilities of any such person, firm, association or corporation.
(c) To apply for, obtain, purchase or otherwise acquire, any patents,
copyrights, licenses, trademarks, trade names and the like, which may
be capable of being used for any of the purposes of the Corporation;
and to use, exercise, develop, grant licenses in respect of, sell and
otherwise turn to account, the same.
(d) To issue and sell Shares of its own capital stock and securities
convertible into such capital stock in such amounts and on such terms
and conditions, for such purposes and for such amount or kind of
consideration (including without limitations, securities) now or
hereafter permitted by the laws of the State of Maryland, by the 1940
Act and by these Articles of Incorporation, as its Board of Directors
may, and is hereby authorized to, determine.
(e) To allocate assets, liabilities and expenses of the Corporation to a
particular series or Class or to apportion the same between or among
two or more series or Classes, as applicable, provided that any
liabilities or expenses incurred by a particular series or Class shall
be payable solely by that series or Class as provided for in Article
EIGHTH.
(f) To purchase, repurchase or otherwise acquire, hold, dispose of,
resell, transfer, reissue or cancel (all without the vote or consent
of the stockholders of the Corporation) Shares of its capital stock in
any manner and to the extent now or hereafter permitted by the laws of
the State of Maryland, by the 1940 Act and by these Articles of
Incorporation.
<PAGE>
(g) To conduct its business in all branches at one or more offices in any
part of the world, without restriction or limit as to extent.
(h) To exercise and enjoy, in any states, territories, districts and
United States dependencies and in foreign countries, all of the
powers, rights and privileges granted to, or conferred upon,
corporations by the General Laws of the State of Maryland now or
hereafter in force.
(i) To enjoy all rights, powers and privileges of ownership or interest in
all securities held by the Corporation, including the right to vote
and otherwise act with respect thereto and to do all acts for the
preservation, protection, improvement, and enhancement in value of all
such securities.
(j) In general, to carry on any other business in connection with or
incidental to its corporate purposes, to do everything necessary,
suitable or proper for the accomplishment of such purposes or for the
attainment of any object or the furtherance of any power set forth in
these Articles of Incorporation, either alone or in association with
others, to do every other act or thing incidental or appurtenant to or
growing out of or connected with its business or purposes, objects or
powers, and, subject to the foregoing, to have and exercise all the
powers, rights and privileges granted to, or conferred upon,
corporations by the laws of the State of Maryland as in force from
time to time.
The foregoing objects and purposes shall, except as otherwise expressly
provided, be in no way limited or restricted by reference to, or inference from,
the terms of any other clause of this or any other Article of these Articles of
Incorporation, and shall each be regarded as independent and construed as a
power as well as an object and a purpose, and the enumeration of specific
purposes, objects and powers shall not be construed to limit or restrict in any
manner the meaning of general terms or the general powers of the Corporation now
or hereafter conferred by the laws of Maryland, nor shall the expression of one
thing be deemed to exclude another though it be of like nature, not expressed;
provided however, that the Corporation shall not have power to carry on within
the State of Maryland any business whatsoever the carrying on of which would
preclude it from being Classified as an ordinary business corporation under the
laws of said State; nor shall it carry on any business, or exercise any powers,
in any other state, territory, district or country except to the extent that the
same may lawfully be carried on or exercised under the laws thereof.
Incident to meeting the purposes specified above, the Corporation also
shall have the power, without limitation:
(1) To acquire (by purchase, lease or otherwise) and to take, receive, own,
hold, use, employ, maintain, develop, dispose of (by sale or otherwise) and
otherwise deal with any real or personal property, wherever located, and
any interest therein.
(2) To make contracts and guarantees, incur liabilities and borrow money and,
in this connection, issue notes or other evidence of indebtedness.
<PAGE>
(3) To buy, hold, sell, and otherwise deal in and with commodities, indices of
commodities or securities, and foreign exchange, including the purchase and
sale of futures contracts, options on futures contracts related thereto and
forward contracts, subject to any applicable provisions of law.
(4) To sell, lease, exchange, transfer, convey, mortgage, pledge and otherwise
dispose of any or all of its assets.
FOURTH: The post office address of the principal office of the Corporation in
Maryland is 11 East Chase Street, Baltimore, MD 21202. The name and post office
address of the resident agent is CSC-Lawyers Incorporating Service Company, 11
East Chase Street, Baltimore, MD 21202. Said resident agent is a domestic
corporation of the State of Maryland.
FIFTH: The total number of shares of stock that the Corporation has authority to
issue is One Hundred Million (100,000,000) at 0.0001 par value, and of the
aggregate par value of $10,000.
SIXTH: The number of directors of the Corporation shall be 2 which number may be
increased or decreased pursuant to the by-laws of the Corporation, and so long
as there are less than three (3) stockholders, the number of directors may be
less than three (3) but not less than the number of stockholders, and the name
(s) of the director (s) who shall act until their successors are duly chosen and
qualified is (are):
BRUCE R. BERKOWITZ
MICHAEL SENIOR
SEVENTH: The duration of the Corporation shall be perpetual.
EIGHTH: Section 8.1. Capital Stock. The total number of Shares of capital stock
which the Corporation shall have authority to issue is one hundred million
(100,000,000) Shares, of the par value of one one-hundreth of one cent ($.0001)
("Shares"), and of the aggregate par value of ten thousand dollars ($10,000).
The Board of Directors shall have full power and authority, in its sole
discretion and without obtaining any prior authorization or vote of the
Stockholders, to change in any manner and to create and establish Shares having
such preferences, terms of conversion, rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption as shall be fixed and determined from time to time by resolution or
resolutions providing for the issuance of such Shares adopted by the Board of
Directors.
The Shares may be issued by the Board of Directors in such separate and distinct
series ("Series") and Classes ("Classes") as the Board of Directors shall from
time to time create and establish. The Board of Directors is authorized, from
time to time, to divide or combine the Shares into a greater or lesser number,
to classify or reclassify any unissued Shares of the Corporation into one or
more separate Series or Classes of Shares, and to take such other action with
respect to the Shares as the Board of Directors may deem desirable. In addition,
the Board of Directors is hereby expressly granted authority to increase or
decrease the number of Shares of any Series or Class, but the number of Shares
of any Series or Class shall not be decreased by the Board of Directors below
the number of Shares thereof then outstanding. The Board of Directors, in its
discretion without a vote of the Stockholders, may divide the Shares of any
Series into Classes. The Shares of any Series or Class of stock shall have such
preferences, rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption as shall be fixed and
determined from time to time by the Board of Directors.
<PAGE>
The Corporation may hold as treasury Shares, reissue for such consideration and
on such terms as the Board of Directors may determine, or cancel, at its
discretion from time to time, any Shares reacquired by the Corporation. No
holder of any of the Shares shall be entitled as of right to subscribe for,
purchase, or otherwise acquire any Shares of the Corporation which the
Corporation proposes to issue or reissue.
Without limiting the authority of the Board of Directors set forth herein to
establish and designate any further Series or Classes, and to classify and
reclassify any unissued Shares, there is hereby established and classified one
Series of stock comprising twenty million (20,000,000) Shares, to be known as
the Fairholme Fund.
The corporation shall have authority to issue any additional Shares hereafter
authorized and any Shares redeemed or repurchased by the Corporation. All Shares
of any Series or Class when properly issued in accordance with these Articles of
Incorporation shall be fully paid and nonassessable.
Section 8.2. Establishment of Series and Classes. The establishment of any
Series or Class of Shares in addition to those established in Section 8.1 hereof
shall be effective upon the adoption of a resolution by the Board of Directors
setting forth such establishment and designation and the relative rights and
preferences of the Shares of such Series or Class. At any time that there are no
Shares outstanding of any particular Series or Class previously established and
designated, the Directors may by a majority vote abolish that Series or Class
and the establishment and designation thereof.
Section 8.3. Dividends. Dividends and distributions on Shares with respect to
each Series or Class may be declared and paid with such frequency, in such form
and in such amount as the Board of Directors may from time to time determine.
Dividends may be declared daily or otherwise pursuant to a standing resolution
or resolutions adopted only once or with such frequency as the Board of
Directors may determine.
All dividends on Shares of each Series or Class shall be paid only out of the
income belonging to that Series or Class and capital gains distributions on
Shares of each Series or Class shall be paid only out of the capital gains
belonging to that Series or Class. All dividends and distributions on Shares of
each Series or Class shall be distributed pro rata to the holders of that Series
or Class in proportion to the number of Shares of that Series or Class held by
such holders at the date and time of record established for the payment of such
dividends or distributions, except that such dividends and distributions shall
appropriately reflect expenses allocated to a particular Series or Class. In
connection with any dividend or distribution program or procedure the Board of
Directors may determine that no dividend or distribution shall be payable on
Shares as to which the Shareholder's purchase order and/or payment have not been
received by the time or times established by the Board of Directors under such
program or procedure.
<PAGE>
The Board of Directors shall have the power, in its sole discretion, to
distribute in any fiscal year as dividends (including dividends designated in
whole or in part as capital gain distributions) amounts sufficient, in the
opinion of the Board of Directors, to enable each Series of the Corporation to
qualify as a regulated investment company under the Internal Revenue Code of
1986, as amended, or any successor or comparable statute thereto, and
regulations promulgated thereunder, and to avoid liability of each Series of the
Corporation for Federal income and excise tax in respect of that year. However,
nothing in the foregoing shall limit the authority of the Board of Directors to
make distributions greater than or less than the amount necessary to qualify as
a regulated investment company and to avoid liability of any Series of the
Corporation for such tax.
Dividends and distributions may be paid in cash, property or Shares, or a
combination thereof, as determined by the Board of Directors or pursuant to any
program that the Board of Directors may have in effect at the time. Any such
dividend or distribution paid in Shares will be paid at the current net asset
value thereof as defined in Section 8.7.
Section 8.4. Assets and Liabilities of Series and Classes. All consideration
received by the Corporation for the issue or sale of Shares of a particular
Series or Class, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall be referred to as "assets belonging to"
that Series or Class, as the case may be. In addition, any assets, income,
earnings, profits, and proceeds thereof, funds, or payments which are not
readily identifiable as belonging to any particular Series or Class shall be
allocated between and among one or more of the Series or Classes in such manner
as the Board of Directors, in its sole discretion, deems fair and equitable.
Each such allocation shall be conclusive and binding upon the Stockholders of
all Series or Classes for all purposes, and shall be referred to as assets
belonging to that Series or Class. The assets belonging to a particular Series
or Class shall be so recorded upon the books of the Corporation. The assets
belonging to each particular Series or Class shall be charged with the
liabilities of that Series or Class and all expenses, costs, charges and
reserves attributable to that Series or Class, as the case may be. Any general
liabilities, expenses, costs, charges or reserves of the Corporation which are
not readily identifiable as belonging to any particular Series or Class shall be
allocated between or among any one or more of the Series or Classes in such a
manner as the Board of Directors in its sole discretion deems fair and
equitable. Each such allocation shall be conclusive and binding upon the
Stockholders of all Series or Classes for all purposes.
Section 8.5. Voting. On each matter submitted to a vote of the Stockholders,
each holder of a Share shall be entitled to one vote for each Share and
fractional votes for fractional Shares standing in his name on the books of the
Corporation; provided, however, that when required by the 1940 Act or rules
thereunder or when the Board of Directors has determined that the matter affects
only the interests of one Series or Class, matters may be submitted to a vote of
the Stockholders of such Series or Class only, and each holder of Shares thereof
shall be entitled to votes equal to the number of full and fractional Shares of
the Series or Class standing in his name on the books of the Corporation. The
presence in person or by proxy of the holders of one-third of the Shares of
capital stock of the Corporation outstanding and entitled to vote thereat shall
constitute a quorum for the transaction of business at a Stockholders' meeting,
except that where holders of any Series or Class vote as a Series or Class,
one-third of the aggregate number of Shares of that Series or Class outstanding
and entitled to vote shall constitute a quorum for the transaction of business
by that Series or Class.
<PAGE>
Section 8.6. Redemption by Stockholders. Each holder of Shares shall have the
right at such times as may be permitted by the Corporation to require the
Corporation to redeem all or any part of his Shares at a redemption price per
Share equal to the net asset value per Share as of such time as the Board of
Directors shall have prescribed by resolution, minus any applicable sales charge
or redemption or repurchase fee. In the absence of such resolution, the
redemption price per Share shall be the net asset value next determined (in
accordance with Section 8.7) after acceptance of a request for redemption in
proper form less such charges as are determined by the Board of Directors and
described in the Corporation's registration statement under the Securities Act
of 1933, except that Shares may be redeemed by an underwriter at (a) the net
asset value next determined after such requests are received by a dealer with
whom such underwriter has a sales agreement or (b) the net asset value
determined at a later time. The Board of Directors may specify conditions,
prices, and places of redemption, and may specify binding requirements for the
proper form or forms of requests for redemption. The Corporation may require
Stockholders to pay a sales charge to the Corporation, the underwriter or any
other person designated by the Board of Directors upon redemption or repurchase
of Shares of any Series or Class, in such amount as shall be determined from
time to time by the Directors. Payment of the redemption price may be wholly or
partly in securities or other assets at the value of such securities or assets
used in such determination of net asset value, or may be in cash.
Notwithstanding the foregoing, the Board of Directors may postpone payment of
the redemption price and may suspend the right of the holders of Shares to
require the Corporation to redeem Shares during any period or at any time when
and to the extent permissible under the 1940 Act.
Section 8.7. Net Asset Value per Share. The net asset value of each Share of
each Series or Class shall be the quotient obtained by dividing the value of the
total assets of the Series or Class, less liabilities and expenses of that
Series or Class, by the total number of Shares of the Series or Class
outstanding. The Board of Directors shall have the power and duty to determine,
in accordance with generally accepted accounting principles, the net income,
total assets and liabilities of the Corporation and the net asset value per
Share of each Series and Class of Shares at such times and by such methods as it
shall determine subject to any restrictions or requirements under the 1940 Act
and the rules, regulations and interpretations thereof promulgated or issued by
the Securities and Exchange Commission or insofar as permitted by any order of
the Securities and Exchange Commission applicable to the Corporation. The Board
of Directors may delegate such power and duty to any one or more of the
directors and officers of the Corporation, to the Corporation's investment
adviser, to the custodian or depository of the Corporation's assets, or to
another agent or contractor of the Corporation.
Section 8.8. Redemption by the Corporation. The Board of Directors may cause the
corporation to redeem at current net asset value all Shares owned or held by any
one Stockholder having an aggregate current net asset value of less than two
thousand dollars ($2,000). No such redemption shall be effected unless the
Corporation has given the Stockholder at least thirty (30) days' notice of its
intention to redeem the Shares and an opportunity to purchase a sufficient
number of additional Shares to bring the aggregate current net asset value of
his Shares to two thousand dollars ($2,000). Upon redemption of Shares pursuant
to this Section, the Corporation shall promptly cause payment of the full
redemption price, in any permissible form, to be made to the holder of Shares so
redeemed. The Board of Directors may by a majority vote establish from time to
time amounts less than two thousand dollars ($2,000) at which the Corporation
will redeem Shares pursuant to this Section.
<PAGE>
NINTH: Section 9.1. Issuance of New Stock. The Board of Directors is authorized
to issue and sell or cause to be issued and sold from time to time (without the
necessity of offering the same or any part thereof to existing stockholders) all
or any portion or portions of the entire authorized but unissued Shares of the
Corporation, and all or any portion or portions of the Shares of the Corporation
from time to time in its treasury, for cash or for any other lawful
consideration or considerations and on or for any terms, conditions, or prices
consistent with the provisions of law and of the Articles of Incorporation at
the time in force; provided, however, that in no event shall Shares of the
Corporation having a par value be issued or sold for a consideration or
considerations less in amount or value than the par value of the Shares so
issued or sold, and provided further that in no event shall any Shares of the
Corporation be issued or sold, except as a stock dividend distributed to
stockholders, for a consideration (which shall be net to the Corporation after
underwriting discounts or commissions) less in amount or value than the net
asset value of the Shares so issued or sold determined as of such time as the
Board of Directors shall have by resolution prescribed. In the absence of such a
resolution, such net asset value shall be that next determined after an
unconditional order in proper form to purchase such Shares is accepted, except
that Shares may be sold to an underwriter at (a) the net asset value next
determined after such orders are received by a dealer with whom such underwriter
has a sales agreement or (b) the net asset value determined at a later time.
Section 9.2. Fractional Shares. The Corporation may issue and sell fractions of
Shares having pro rata all the rights of full Shares, including, without
limitation, the right to vote and to receive dividends, and wherever the words
"Share" or "Shares" are used in these Articles or in the By-Laws they shall be
deemed to include fractions of Shares, where the context does not clearly
indicate that only full Shares are intended.
TENTH: Except as otherwise required by the 1940 Act, a majority of all the votes
cast at a Stockholders' meeting at which a quorum is present is sufficient to
approve any matter which properly comes before the meeting. Notwithstanding any
provision of law requiring a greater proportion than a majority of the vote
thereon as a separate Class or Series (or of any Class or Series entitled to
vote thereon as a separate Class or Series) to take or authorize any action, the
Corporation is hereby authorized in accordance with the authority granted by
Section 2-104(b)(5) of the Maryland General Corporation Law, to take such action
upon the concurrence of a majority of the aggregate number of Shares entitled to
vote thereon (or of a majority of the aggregate number of Shares of a Class or
Series entitled to vote thereon as a separate Class or Series). The right to
cumulate votes in the election of directors is expressly prohibited.
ELEVENTH: Section 11.1. Board of Directors. All corporate powers and authority
of the Corporation (except as otherwise provided by statute, by these Articles
of Incorporation, or by the By-Laws of the Corporation) shall be vested in and
exercised by the Board of Directors. The number of directors constituting the
Board of Directors shall be such number as may from time to time
<PAGE>
be fixed in or in accordance with the By-Laws of the Corporation, provided that
if there is no stock outstanding, the number of directors may be less than three
but not less than one, and further provided that if there is stock outstanding
and so long as there are less than three Stockholders, the number of directors
may be less than three but not less than the number of Stockholders. Except as
provided in the By-Laws, the election of directors may be conducted in any way
approved at the meeting (whether of stockholders or directors) at which the
election is held, provided that such election shall be by ballot whenever
requested by any person entitled to vote. The names of the persons who shall act
as initial directors until stock is issued to more than one stockholder or the
first meeting of stockholders, whichever shall occur earlier, and until their
successors have been duly chosen and qualified are Bruce R. Berkowitz and
Michael J. Senior.
Section 11.2. By-Laws. Except as may otherwise be provided in the By-Laws, the
Board of Directors of the Corporation is expressly authorized to make, alter,
amend and repeal By-Laws or to adopt new By-Laws of the Corporation, without any
action on the part of the Stockholders; but the By-Laws made by the Board of
Directors and the power so conferred may be altered or repealed by the
Stockholders.
Section 11.3. Inspection of Records. The Board of Directors shall have the power
to determine whether and to what extent, and at what times and places, and under
what conditions and regulation, the accounts and books of the Corporation (other
than the stock ledger), or any of them, shall be open to inspection by
stockholders. No stockholders shall have any right to inspect any account, book,
or document of the Corporation, except to the extent permitted by statute or the
By-Laws.
TWELFTH: Section 12.1. The Board of Directors may in its discretion from time to
time enter into an exclusive or nonexclusive distribution contract or contracts
providing for the sale of Shares whereby the Corporation may either agree to
sell Shares to the other party to the contract or appoint such other party its
sales agent for such Shares (such other party being herein sometimes called the
"underwriter"), and in either case on such terms and conditions as may be
prescribed in the By-Laws, if any, and such further terms and conditions as the
Board of Directors may in its discretion determine not inconsistent with the
provisions of these Articles of Incorporation. Such contract may also provide
for the repurchase of Shares of the Corporation by such other party or parties
as agent of the Corporation. The Board of Directors may also in its discretion
from time to time enter into an investment advisory or management contract or
contracts whereby the other party to such contract shall undertake to furnish to
the Board of Directors such management, investment advisory, statistical and
research facilities and services and such other facilities and services, if any,
and all upon such terms and conditions, as the Board of Directors may in its
discretion determine.
Section 12.2. Any contract of the character described in Section 12.1 or for
services as administrator, custodian, transfer agent or disbursing agent or
related services may be entered into with any corporation, firm, trust or
association, although any one or more of the directors or officers of the
Corporation may be an officer, director, trustee, stockholder or member of such
other party to the contract, and no such contract shall be invalidated or
rendered voidable by reason of the existence of any such relationship, nor shall
any person holding such relationship be liable merely by reason of such
relationship for any loss or expense to the Corporation under or by reason of
said contract or accountable for any profit realized directly or indirectly
therefrom, provided that the contract when entered into was reasonable and fair
and not inconsistent with the provisions of this Article TWELFTH. The same
person (including a firm, corporation, trust, or association) may be the other
party to any or all of the contracts entered into pursuant to Section 12.1
above, and any individual may be financially interested or otherwise affiliated
with persons who are parties to any or all of the contracts mentioned in this
Section 12.2.
<PAGE>
THIRTEENTH: Section 13.1. To the maximum extent permitted by applicable law
(including Maryland law and the 1940 Act) as currently in effect or as it may
hereafter be amended, no director or officer of the Corporation shall be liable
to the Corporation or its stockholders for money damages.
Section 13.2. To the maximum extent permitted by applicable law (including
Maryland law and the 1940 Act) currently in effect or as it may hereafter be
amended, the Corporation shall indemnify and advance expenses to its present and
past directors, officers, or employees, and persons who are serving or have
served at the request of the Corporation as a director, officer, employee,
partner, trustee or agent, of or in similar capacities, for other entities. The
Board of Directors may determine that the Corporation shall provide information
or advance expenses to an agent.
Section 13.3. Repeal or Modifications. No repeal or modification of this Article
THIRTEENTH by the stockholders of the Corporation, or adoption or modification
of any other provision of the Articles of Incorporation or By-Laws inconsistent
with this Article THIRTEENTH, shall repeal or narrow any limitation on (1) the
liability of any director, officer or employee of the Corporation or (2) right
of indemnification available to any person covered by these provisions with
respect to any act or omission which occurred prior to such repeal, modification
or adoption.
FOURTEENTH: The Corporation reserves the right from time to time to make any
amendment of these Articles of Incorporation, now or hereafter authorized by
law, including any amendment which alters contract rights, as expressly set
forth in these Articles of Incorporation, of any outstanding Shares. Any
amendment to these Articles of Incorporation may be adopted at any meeting of
the stockholders upon receiving an affirmative vote of a majority of all votes
entitled to be cast thereon. The Board of Directors may, without a Shareholder
vote, order the filing of Articles Supplementary increasing or decreasing the
aggregate number of Shares or the number of Shares of any Series or Class that
the Corporation has authority to issue, establishing new Series or Classes and
describing the Shares thereof.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation on October 5,
1999, and severally acknowledged the same to be my act.
/s/ Staci E. Drake
- -------------------
STACI E. DRAKE
Incorporator
<PAGE>
ACTION OF SOLE INCORPORATOR
FAIRHOLME FUNDS, INC.
-------------------------------------
The undersigned, without a meeting, being the sole incorporator of the
Corporation, does hereby elect the persons listed below to serve as directors of
the Corporation until the first annual meeting of shareholders and until their
successors are elected and qualifies:
BRUCE R. BERKOWITZ
MICHAEL J. SENIOR
/s/ Staci E. Drake
------------------
STACI E. DRAKE
Incorporator
Dated: October 5, 1999
EXHIBIT 23B
- --------------------------------------------------------------------------------
BY-LAWS
OF
FAIRHOLME FUNDS, INC.
- --------------------------------------------------------------------------------
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of the Corporation in the
State of Maryland shall be in the City of Baltimore.
Section 2. Other Offices. The Corporation may have such other offices in
such places as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF SHAREHOLDERS
------------------------
Section 1. Annual Meeting. Subject to this Article II, an annual meeting of
Shareholders for the election of Directors and the transaction of
such other business as may properly come before the meeting shall
be held at such time and place as the Board of Directors shall
select. The Corporation shall not be required to hold an annual
meeting of its Shareholders in any year in which the election of
directors is not required to be acted upon under the Investment
Company Act of 1940.
Section 2. Special Meetings. Special meetings of Shareholders may be called
at any time by the President, the Secretary or by a majority of
the Board of Directors and shall be held at such time and place
as may be stated in the notice of the meeting.
Special meetings of the Shareholders shall be called by the
Secretary upon receipt of written request of the holders of
shares entitled to cast not less than 10% of the votes entitled
to be cast at such meeting, provided that (1) such request shall
state the purposes of such meeting and the matters proposed to be
acted on, and (2) the Shareholders requesting such meeting shall
have paid to the Corporation the reasonably estimated cost of
preparing and mailing the notice thereof, which the Secretary
shall determine and specify to such Shareholders. No special
meeting shall be called upon the request of Shareholders to
consider any matter which is substantially the same as a matter
voted upon at any special meeting of the Shareholders held during
the preceding 12 months, unless requested by the holders of a
majority of all shares entitled to be voted at such meeting.
<PAGE>
Section 3. Place of Meetings. Meetings of Shareholders shall be held at a
location within the Continental United States as the Board of
Directors may from time to time determine.
Section 4. Notice of Meetings; Waiver of Notice. Notice of the place, date
and time of the holding of each Shareholders' meeting and, if the
meeting is a special meeting, the purpose or purposes of the
meeting, shall be given personally or by mail, not less that ten
(10) nor more that ninety (90) days before the date of such
meeting, to each Shareholder entitled to vote at such meeting and
to each other shareholder entitled to notice of the meeting.
Notice by mail shall be deemed to be duly given when deposited in
the United States mail addressed to the shareholder at his or her
address as it appears on the records of the Corporation, with
postage thereon prepaid.
Notice of any meeting of Shareholders shall be deemed waived by
any shareholder who shall attend such meeting in person or by
proxy, or who shall, either before or after the meeting, submit a
signed waiver of notice which is filed with the records of the
meeting.
Section 5. Quorum, Adjournment of Meetings. The presence at any
Shareholders' meeting, in person or by proxy, of Shareholders of
one third (1/3RD ) of the shares of the stock of the Corporation
thereat shall be necessary and sufficient to constitute a quorum
for the transaction of business, except for any matter which,
under applicable statutes or regulatory requirements, requires
approval by a separate vote of one or more classes of stock, in
which case the presence in person or by proxy of Shareholders of
one third (1/3RD ) of the shares of stock of each class required
to vote as a class on the matter shall constitute a quorum. The
holders of a majority of shares entitled to vote at the meeting
and present in person or by proxy, whether or not sufficient to
constitute a quorum, or, any officer present entitled to preside
or act as Secretary of such meeting, may adjourn the meeting
without determining the date of a new meeting, or without notice
to a date not more than 120 days after the original record date.
Any business that might have been transacted at the meeting
originally called and so adjourned may be transacted at any such
subsequent meeting at which a quorum is present.
Section 6. Organization. At each meeting of the Shareholders, the Chairman
of the Board (if one has been designated by the Board), or in his
or her absence or inability to act, the President, or in the
absence or inability to act of the Chairman of the Board and the
President, the Vice President, shall act as chairman of the
meeting; provided, however, that if no such officer is present or
able to act, a chairman of the meeting shall be elected by a
majority of the Shareholders, present in person or by proxy, at
the meeting. The Secretary, or in his or her absence or inability
to act, any person appointed by the chairman of the meeting,
shall act as secretary of the meeting and keep the minutes
thereof.
<PAGE>
Section 7. Order of Business. The order of business at all meetings of the
Shareholders shall be as determined by the chairman of the
meeting.
Section 8. Voting. Except as otherwise provided by statute or the Articles
of Incorporation, each holder of record of shares of stock of the
Corporation having voting power shall be entitled at each meeting
of the Shareholders to one vote for every full share of such
stock, with a fractional vote for any fractional shares, standing
in his or her name on the records of Shareholders of the
Corporation as of the record date determined pursuant to Section
9 of this Article, or if such record date shall not have been so
fixed, then at the later of (i) the close of business on the day
on which notice of the meeting is mailed or (ii) the thirtieth
day before the meeting.
Each shareholder entitled to vote at any meeting of Shareholders
may authorize another person or persons to act for him or her by
a proxy signed by such shareholder or his or her
attorney-in-fact. No proxy shall be valid after the expiration of
eleven months from the date thereof, unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the
shareholder executing it, except in those cases where such proxy
states that it is irrevocable and where law permits an
irrevocable proxy. Except as otherwise provided by statute, the
Articles of Incorporation or these By-Laws, any corporate action
to be taken by vote of the Shareholders shall be authorized by a
majority of the total votes validly cast at a meeting of
Shareholders at which a quorum is present.
If a vote shall be taken on any question other than the election
of directors, which shall be by written ballot, then unless
required by statute or these By-Laws, or determined by the
chairman of the meeting to be advisable, any such vote need not
be by ballot. On a vote by ballot, each ballot shall be signed by
the shareholder voting, or by his or her proxy, if there be such
proxy, and shall state the number of shares voted.
Section 9. Fixing of Record Date. The Board of Directors may fix a time not
less that 10 nor more than 90 days prior to the date of any
meeting of Shareholders or prior to the last day on which the
consent or dissent of Shareholders may be effectively expressed
for any purpose without a meeting, as the time as of which
Shareholders entitled to notice of and to vote at such a meeting
or whose consent or dissent is required or may be expressed for
any purpose, as the case may be, shall be determined; and all
persons who were holders of record of voting stock at such time
and no other shall be entitled to notice of and to vote at such
meeting or to express their consent or dissent, as the case may
be. If no record date has been fixed, the record date for the
determination of Shareholders entitled to notice of or to vote at
a meeting of Shareholders shall be the later of the close of
business on the day on which notice of the meeting is mailed or
the thirtieth day before the meeting, or, if notice is waived by
all Shareholders, at the close of business on the tenth day next
preceding the day on which the meeting is held. The Board of
Directors may fix a record date for determining Shareholders
entitled to receive payment of a dividend or distribution, but
such date shall be not more that 90 days before the date on which
such payment is made. If no record date has been fixed, the
record date for determining Shareholders entitled to receive
dividends or distributions shall be the close of business on the
day on which the resolution of the Board of Directors declaring
the dividend or distribution is adopted, but the payment shall
not be made more than 60 days after the date on which the
resolution is adopted.
<PAGE>
Section 10. Consent of Shareholders in Lieu of Meeting. Except as otherwise
provided by statute or the Articles of Incorporation, any action
required to be taken at any meeting of Shareholders, or any
action which may be taken at any meeting of such Shareholders,
may be taken without a meeting, without prior notice and without
a vote, if the following are filed with the records of
Shareholders meetings: (i) a unanimous written consent which sets
forth the action and is signed by each shareholder entitled to
vote on the matter, and (ii) a written waiver of any right to
dissent signed by each shareholder entitled to notice of the
meeting but not entitled to vote thereat.
ARTICLE III
BOARD OF DIRECTORS
------------------
Section 1. General Powers:
(a) The property, affairs and business of the Corporation shall
be managed by or under the direction of the board of directors,
which may exercise all the powers of the Corporation except those
powers vested solely in the stockholders of the Corporation by
statute, by the Articles of Incorporation, or by these By-Laws.
(b) All acts done by any meeting of the Directors or by any
person acting as a director, so long as his successor shall not
have been duly elected or appointed, shall, notwithstanding that
it be afterwards discovered that there was some defect in the
election of the directors or of such person acting as aforesaid
or that they or any of them were disqualified, be as valid as if
the directors or such other person, as the case may be, had been
duly elected and were or was qualified to be directors or a
director of the Corporation.
Power to Issue and Sell Stock: The board of directors may from
time to time issue and sell or cause to be issued and sold any of
the Corporation's authorized shares to such persons and for such
consideration as the board of directors shall deem advisable,
subject to the provisions of Articles Sixth and Seventh of the
Articles of Incorporation.
Power to Declare Dividends: The board of directors, from time to
time as it may deem advisable, may declare and pay dividends in
stock, cash or other property of the Corporation, out of any
source available for dividends, to the stockholders according to
their respective rights and interests in accordance with the
provisions of the Articles of Incorporation.
<PAGE>
(a) The board of directors shall cause to be accompanied by a
written statement any dividend payment wholly or partly from any
source other than:
i) the Corporation's accumulated undistributed net income
(determined in accordance with good accounting practice and
the rules and regulations of the Securities and Exchange
Commission then in effect) and not including profits or
losses realized upon the sale of securities or other
properties; or
ii) the Corporation's net income so determined for the
current or preceding fiscal year.
Such statement shall adequately disclose the source or sources of
such payment and the basis of calculation, and shall be in such
form as the Securities and Exchange Commission may prescribe.
Section 2. Number of Directors. The number of directors shall be fixed from
time to time by resolution of the Board of Directors adopted by a
majority of the Directors then in office; provided, however, that
the number of Directors shall in no event be less that three (3)
nor more than fifteen (15) except that the Corporation may have
less than three (3) but not less than one (1) Director if there
is no stock outstanding, and may have a number of Directors no
fewer than the number of Shareholders so long as there are fewer
than three (3) Shareholders. Any vacancy created by an increase
in Directors may be filled in accordance with Section 6 of this
Article III. No reduction in the number of Directors shall have
the effect of removing any Director from office prior to the
expiration of his or her term unless such Director is
specifically removed pursuant to Section 5 of this Article III at
the time of such decrease. Directors need not be Shareholders.
Section 3. Election and Term of Directors. Directors shall be elected
annually, by written ballot at the annual meeting of Shareholders
or a special meeting held for that purpose; provided, however,
that if no annual meeting of the Shareholders of the Corporation
is required to be held in a particular year pursuant to Section 1
of Article II of these By-Laws, Directors shall be elected at the
next annual meeting held. The term of office of each Director
shall be from the time of his or her election and qualification
until the election of Directors next succeeding his or her
election and until his or her successor shall have been elected
and shall have qualified.
Section 4. Resignation. A director of the Corporation may resign at any time
by giving written notice of his or her resignation to the Board,
or the Chairman of the Board, or the President, or the Secretary.
Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not
be specified therein, immediately upon its receipt; and, unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
<PAGE>
Section 5. Removal of Directors. Any Director of the Corporation may be
removed by the Shareholders by a vote of a majority of the shares
entitled to be cast for the election of Directors.
Section 6. Vacancies. If any vacancies shall occur in the Board of Directors
(i) by reason of death, resignation, removal or otherwise, the
remaining directors shall continue to act, and, subject to the
provisions of the Investment Company Act of 1940, such vacancies
(if not previously filled by the Shareholders) may be filled by a
majority of the remaining Directors, although less than a quorum,
and (ii) by reason of an increase in the authorized number of
Directors, such vacancies (if not previously filled by the
Shareholders) may be filled only by a majority vote of the entire
Board of Directors.
Section 7. Offices, Records, Places of Meetings. The Directors may have one
or more offices and may keep the books of the Corporation outside
the State of Maryland, and within or without the United States of
America, at any office or offices of the Corporation or at any
other place as they may from time to time by resolution
determine; and in the case of meetings of the Board of Directors,
such meetings may be held at any place, within or without the
United States of America, as the Board may from time to time by
resolution determine, or as shall be specified or fixed in the
respective notices or waivers of notice thereof.
Section 8. Regular Meetings. The Board of Directors from time to time may
provide by resolution for the holding of regular meetings and fix
their time and place as the Board of Directors may determine.
Notice of such regular meetings need not be in writing, provided
that notice of any change in the time or place of such fixed
regular meetings shall be communicated promptly to each Director
not present at the meeting at which such change was made, in the
manner provided in Section 9 of this Article III for notice of
special meetings. Members of the Board of Directors or any
committee designated thereby may participate in a meeting of such
Board or committee by telephone conference or other
communications method by means of which all persons participating
in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person
at a meeting, subject to the requirements of the Investment
Company Act of 1940.
Section 9. Special Meetings. Special meetings of the Board of Directors may
be held at any time or place and for any purpose when called by
the President, the Secretary or two or more of the Directors.
Notice of special meetings, stating the time and place, shall be
communicated to each Director personally by telephone or
transmitted to him or her by mail, telegraph, telefax, telex,
cable, e-mail or wireless at least one day before the meeting.
Section 10. Waiver of Notice. No notice of any meeting of the Board of
Directors or a committee of the Board need be given to any
Director who is present at the meeting or who waives notice of
such meeting in writing (which waiver shall be filed with the
records of such meeting), either before or after the time of the
meeting.
<PAGE>
Section 11. Quorum and Voting. At all meetings of the Board of Directors, the
presence of one third of the entire Board of Directors shall
constitute a quorum unless there are only two or three Directors,
in which case two Directors shall constitute a quorum. If there
is only one Director, the sole Director shall constitute a
quorum. At any adjourned meeting at which a quorum was present,
any business may be transacted at a subsequent meeting, at which
a quorum is present, which might have been transacted at the
meeting as originally called.
Section 12. Organization. The Board may, by resolution adopted by a majority
of the entire Board, designate a Chairman of the Board, who shall
preside at each meeting of the Board. In the absence or inability
of the Chairman of the Board to preside at a meeting, the
President, or, in his or her absence or inability to act, another
Director chosen by a majority of the Directors present, shall act
as chairman of the meeting and preside thereat. The Secretary
(or, in his or her absence or inability to act, any person
appointed by the Chairman) shall act as secretary of the meeting
and keep the minutes thereof.
Section 13. Written Consent of Directors in Lieu of a Meeting. Subject to the
provisions of the Investment Company Act of 1940, as amended, any
action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as
the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the
Board or committee.
Section 14. Compensation. Directors may receive compensation for services to
the Corporation in their capacities as directors or otherwise in
such manner and in such amounts as may be fixed from time to time
by the Board, subject to any limitations on such compensation as
provided in the Investment Company Act of 1940.
ARTICLE IV
COMMITTEES
----------
Section 1. Organization. By resolution adopted by the Board of Directors,
the Board may designate one or more committees, including an
Executive Committee, composed of two or more Directors. The Board
of Directors shall elect the Chairmen of such committees. The
Board of Directors shall have the power at any time to change the
members of such committees and to fill vacancies in the
committees. The Board may delegate to these committees any of its
powers, except the power to authorize the issuance of stock,
declare a dividend or distribution on stock, recommend to
Shareholders any action requiring shareholder approval, amend
these By-Laws, or approve any merger or share exchange which does
not require shareholder approval. If the Board of Directors has
given general authorization for the issuance of stock, a
committee of the Board, in accordance with a general formula or
method specified by the Board by resolution or by adoption of a
stock option or other plan, may fix the terms of stock subject to
classification or reclassification and the terms on which any
stock may be issued, including all terms and conditions required
or permitted to be established or authorized by the Board of
Directors.
Section 2. Proceedings and Quorum. In the absence of an appropriate
resolution of the Board of Directors, each committee may adopt
such rules and regulations governing its proceedings, quorum and
manner of acting as it shall deem proper and desirable. In the
event any member of any committee is absent from any meeting, the
members thereof present at the meeting, whether or not they
constitute a quorum, may appoint a member of the Board of
Directors to act in the place of such absent member.
ARTICLE V
OFFICERS, AGENTS AND EMPLOYEES
------------------------------
Section 1. General. The officers of the Corporation shall be a President, a
Secretary and a Treasurer, and may include one or more Vice
Presidents, Assistant Secretaries or Assistant Treasurers, and
such other officers as may be appointed in accordance with the
provisions of Section 8 of this Article.
<PAGE>
Section 2. Election, Tenure and Qualifications. The officers of the
Corporation, except those appointed as provided in Section 8 of
this Article V, shall be elected by the Board of Directors at its
first meeting and thereafter annually at an annual meeting. If
any officers are not chosen at any annual meeting, such officers
may be chosen at any subsequent regular or special meeting of the
Board. Except as otherwise provided in this Article V, each
officer chosen by the Board of Directors shall hold office until
the next annual meeting of the Board of Directors and until his
or her successor shall have been elected and qualified. Any
person may hold one or more offices of the Corporation except
that a single person may not simultaneously hold the offices of
President and Vice President.
Section 3. Removal and Resignation. Whenever in the judgment of the Board of
Directors the best interest of the Corporation will be served
thereby, any officer may be removed from office by the vote of a
majority of the members of the Board of Directors at any regular
meeting or at a special meeting called for such purpose. Any
officer may resign his office at any time by delivering a written
resignation to the Board of Directors, the President, the
Secretary, or any Assistant Secretary. Unless otherwise specified
therein, such resignation shall take effect upon delivery.
Section 4. President. The president shall be the chief executive officer of
the Corporation.. Subject to the supervision of the Board of
Directors, he or she shall have general charge of the business,
affairs and property of the Corporation, and general supervision
over its officers, employees and agents. Except as the Board of
Directors may otherwise order, he or she may sign in the name and
on behalf of the Corporation all deeds, bonds, contracts, or
agreements. He or she shall exercise such other powers and
perform such other duties as from time to time may be assigned to
him or her by the Board of Directors.
<PAGE>
Section 5. Vice President. The Board of Directors may from time to time
elect one or more Vice Presidents who shall have such powers and
perform such duties as from time may be assigned to them by the
Board of Directors or the President. At the request or in the
absence or disability of the President, the Vice President (or,
if there are two or more Vice Presidents then the more senior of
such officers present and able to act) may perform all the duties
of the President and, when so acting, shall have all the powers
of and be subject to all the restrictions upon the President. Any
Vice President may perform such duties as the Board of Directors
may assign.
Section 6. Treasurer and Assistant Treasurer. The Treasurer shall be the
principal financial and accounting officer of the Corporation and
shall have general charge of the finances and books of account of
the Corporation. Except as otherwise provided by the Board of
Directors, he or she shall have general supervision of the funds
and property of the Corporation and of the performance by the
Custodian of its duties with respect thereto. He or she shall
render to the Board of Directors whenever directed by the Board,
an account of the financial condition of the Corporation and of
all his or her transactions as Treasurer; and as soon as possible
after the close of each fiscal year, he or she shall make and
submit to the Board of Directors a like report for such fiscal
year. He or she shall perform all acts incidental to the Office
of Treasurer, subject to the control of the Board of Directors.
Any Assistant Treasurer may perform such duties of the Treasurer
as the Treasurer or the Board of Directors may assign, and, in
the absence of the Treasurer, the Assistant Treasurer (or if
there are two or more Assistant Treasurers, then the more senior
of such officers present and able to act) may perform all the
duties of the Treasurer.
Section 7. Secretary and Assistant Secretaries. The Secretary shall attend
to the giving and serving of all notices of the Corporation and
shall record all proceedings of the meetings of the Shareholders
and Directors in books to be kept for that purpose. He or she
shall keep in safe custody the seal of the corporation, and shall
have charge of the records for the Corporation, including the
stock books and such other books and papers as the Board of
Directors may direct and such books, reports, certificates and
other documents required by law to be kept, all of which shall at
all reasonable times be open to inspection by any Director. He or
she shall perform such other duties as appertain to his or her
office or as may be required by the Board of Directors.
Any Assistant Secretary may perform such duties of the Secretary
as the Secretary of the Board of Directors may assign, and, in
the absence of the Secretary, he or she (or if there are two or
more Assistant Secretaries, then the more senior of such officers
present and able to act) may perform all the duties of the
Secretary.
Section 8. Subordinate Officers. The Board of Directors from time to time
may appoint such other officers or agents as it may deem
advisable, each of whom shall have such title, hold office for
such period, have such authority and perform such duties as the
Board of Directors may determine. The Board of Directors may from
time to time delegate to one or more officers or agents the power
to appoint any such subordinate officers or agents and to
prescribe their rights, terms of office, authorities and duties.
<PAGE>
Section 9. Remuneration. The salaries or other compensation of the officers
of the Corporation shall be fixed from time to time by resolution
of the Board of Directors, except that the Board of Directors may
by resolution delegate to any person or group of persons the
power to fix the salaries or other compensation of any
subordinate officers or agents appointed in accordance with the
provisions of Section 8 of this Article V.
Section 10. Surety Bonds. The Board of Directors may require any officer or
agent of the Corporation to execute a bond (including, without
limitation, any bond required by the Investment Company Act of
1940, as amended, and the rules and regulations of the Securities
and Exchange Commission) to the Corporation in such sum and with
such surety or sureties as the Board of Directors may determine,
conditioned upon the faithful performance of his or her duties to
the Corporation, including responsibility for negligence and for
the accounting of any of the Corporation's property, funds or
securities that may come into his or her hands.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
-----------------------------
Section 1. Indemnification of Officers, Directors, Employees and Agents: The
Corporation shall indemnify each person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative ("Proceeding'), by reason of the
fact that he or she is or was a director, officer or employee of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, partner, trustee or
agent of another corporation, partnership, joint venture, trust,
or other enterprise, against all reasonable expenses (including
attorneys' fees) actually incurred, and judgments, fines,
penalties and amounts paid in settlement in connection with such
Proceeding to the maximum extent permitted by law, now existing
or hereafter adopted. Notwithstanding the foregoing, the
following provisions shall apply with respect to indemnification
of the Corporation's directors, officers, and investment adviser
(as defined in the Investment Company act of 1940, as amended):
(a) Whether or not there is an adjudication of liability in such
Proceeding, the Corporation shall not indemnify any such person
for any liability arising by reason of such person's willful
misfeasance, bad faith, gross negligence, or reckless disregard
of the duties involved in the conduct of his or her office or
reckless disregard of his duties under any contract or agreement
with the Corporation ("Disabling Conduct").
<PAGE>
(b) The Corporation shall not indemnify any such person unless:
(1) the court or other body before which the proceeding was
brought (a) dismisses the Proceeding for insufficiency of
evidence of any disabling conduct, or (b) reaches a final
decision on the merits that such person was not liable by
reason of disabling conduct; or
(2) absent such a decision, a reasonable determination is
made, based upon a review of the facts, by (a) the vote of a
majority of a quorum of the directors of the Corporation who
are neither "interested persons" of the Corporation as
defined in the Investment Company act of 1940, as amended,
nor parties to the Proceeding, or (b) if a majority of a
quorum of directors described above so directs, or if such
quorum is not obtainable, based upon a written opinion by
independent legal counsel, that such person was not liable
by reason of disabling conduct.
(c) Reasonable expenses (including attorneys' fees) incurred in
defending a Proceeding involving any such person will be paid by
the Corporation in advance of the final disposition thereof upon
an undertaking by such person to repay such expenses unless it is
ultimately determined that he or she is entitled to
indemnification, if:
(1) such person shall provide adequate security for his or
her undertaking;
(2) the Corporation shall be insured against losses arising
by reason of such advance; or
(3) a majority of a quorum of the directors of the
Corporation who are neither "interested persons" of the
Corporation as defined in the Investment Company act of
1940, as amended, nor parties to the proceeding, or
independent legal counsel in a written opinion, shall
determine, based on a review of readily available facts,
that there is reason to believe that such person will be
found to be entitled to indemnification.
Section 2. Insurance of Officers, Directors, Employees and Agents: The
Corporation may purchase and maintain insurance or other sources
of reimbursement to the extent permitted by law on behalf of any
person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, partner, trustee or
agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against him or
her and incurred by him or her in or arising out of his or her
position.
Section 3. Non-exclusivity: The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
the Articles of Incorporation, these By-Laws, any agreement, vote
of stockholders or directors, or otherwise, both as to action in
his or her official capacity and as to action in another capacity
while holding such office.
<PAGE>
ARTICLE VII
CAPITAL STOCK
-------------
Section 1. Stock Certificates. The interest of each shareholder of the
Corporation may be evidenced by certificates for shares of stock
in such form as the Board of Directors may from time to time
prescribe. The Board of Directors is expressly empowered to
direct that stock certificates not be issued to evidence such
shareholder ownership, and in such a case, the Board of Directors
prescribe such other method or arrangement for the recording of
such interests as they deem reasonable and proper.
In the event that the Board of Directors elects to issue stock
certificates, the certificates representing shares of stock shall
be signed by or in the name of the Corporation by the President
or a Vice President and countersigned by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer.
Certificates may be sealed with the actual corporate seal or a
facsimile of it or in any other form. Any or all of the
signatures of the seal on the certificate may be manual or
facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate shall be issued, it may be
issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were still in office at the
date of issue unless written instructions of the Corporation to
the contrary are delivered to such officer, transfer agent or
registrar.
Section 2. Stock Ledgers. The stock ledgers of the Corporation, containing
the names and addresses of the Shareholders and the number of
shares held by them respectively, shall be kept at the principal
offices of the Corporation or, if the Corporation employs a
transfer agent, at the offices of the transfer agent of the
Corporation.
Section 3. Transfers of Shares. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation
only by the registered holder thereof, or by his or her attorney
thereunto authorized by power of attorney duly executed and filed
with the Secretary or with a transfer agent or transfer clerk,
and on surrender of the certificate or certificates, if issued,
for such shares properly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, with
such proof of the authenticity of the signature as the
Corporation or its agents may reasonably require and the payment
of all taxes thereon. Except as otherwise provided by law, the
Corporation shall be entitled to recognize the exclusive right of
a person in whose name any share or shares stand on the record of
Shareholders as the owner of such share or shares for all
purposes, including, without limitation, the rights to receive
dividends or other distributions, and to vote as such owner, and
the Corporation shall not be bound to recognize any equitable or
legal claim to or interest in any such share or shares on the
part of any other person. The Board may make such additional
rules and regulations, not inconsistent with these By-Laws, as it
may deem expedient concerning the issue, transfer and
registration of certificates for shares of stock of the
Corporation.
<PAGE>
Section 4. Transfer Agents and Registrars. The Board of Directors may from
time to time appoint or remove transfer agents and/or registrars
of transfers of shares of stock of the Corporation, and it may
appoint the same person as both transfer agent and registrar.
Upon any such appointment being made all certificates
representing shares of capital stock thereafter issued shall be
countersigned by one of such transfer agents or by one of such
registrars of transfers or by both and shall not be valid unless
so countersigned. If the same person shall be both transfer agent
and registrar, only one countersignature by such person shall be
required.
Section 5. Lost, Destroyed or Mutilated Certificates. The holder of any
certificates representing shares of stock of the Corporation
shall immediately notify the Corporation of any loss, destruction
or mutilation of such certificate, and the Corporation may issue
a new certificate of stock in the place of any certificate
theretofore issued by it which the owner thereof shall allege to
have been lost or destroyed or which shall have been mutilated,
and the Board may, in its discretion, require such owner or his
or her legal representatives to give to the Corporation a bond in
such sum, limited or unlimited, and in such form and with such
surety or sureties, as the Board in its absolute discretion shall
determine, to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss or
destruction of any certificate, or issuance of a new certificate.
Anything herein to the contrary notwithstanding, the Board, in
its absolute discretion, may refuse to issue any such new
certificate, except pursuant to legal proceedings under the laws
of the State of Maryland.
ARTICLE VIII
SEAL
----
The seal of the Corporation shall be circular in form and shall bear, in
addition to any other emblem or device approved by the Board of Directors, the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Maryland." The Board of Directors may otherwise alter the form of the
seal. Said seal may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced. Any Officer or Director of the
Corporation shall have the authority to affix the corporate seal of the
Corporation to any document requiring the same.
ARTICLE IX
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined by resolution of the
Board of Directors.
<PAGE>
ARTICLE X
DEPOSITORIES AND CUSTODIANS
---------------------------
Section 1. Depositories. The funds of the Corporation shall be deposited
with such banks or other depositories as the Board of Directors
of the Corporation may from time to time determine.
Section 2. Custodians. All securities and other investments shall be
deposited in the safe keeping of such banks or other companies as
the Board of Directors of the Corporation may from time to time
determine. Every arrangement entered into with any bank or other
company for the safe keeping of the securities and investments of
the Corporation shall contain provisions complying with the
Investment Company Act of 1940, as amended, and the general rules
and regulations thereunder.
ARTICLE XI
EXECUTION OF INSTRUMENTS
------------------------
Section 1. Checks, Notes, Drafts, etc. Checks, notes, drafts, acceptances,
bills of exchange and other orders or obligations for the payment
of money shall be signed by such officer or officers or person or
persons as the Board or these By-Laws provide.
Section 2. Sale or Transfer of Securities. Stock certificates, bonds or
other securities owned by the Corporation may be held on behalf
of the Corporation by a Custodian selected by the Board of
Directors, and may be transferred or otherwise disposed of only
as allowed pursuant to these By-Laws and pursuant to
authorization by the Board; and when so authorized to be held on
behalf of the Corporation or sold, transferred or otherwise
disposed of, may be transferred from the name of the Corporation
by the signature of the President, any Vice President or the
Treasurer, or pursuant to any procedure approved by the Board of
Directors, subject to applicable law.
ARTICLE XII
INDEPENDENT PUBLIC ACCOUNTANTS
------------------------------
The Corporation shall employ an independent public accountant or a firm of
independent public accountants as its accountants to examine the accounts of the
Corporation and to sign and certify financial statements filed by the
Corporation.
ARTICLE XIII
RECORD KEEPING PURSUANT TO STATUTORY REQUIREMENTS
Any and all books, records, documents and other writings and memoranda, of
any nature whatever, that are or may be subject to record keeping requirements
under federal or state statutes shall be kept and maintained in the manner and
for the time periods prescribed under the Investment Company Act of 1940, as
amended.
<PAGE>
ARTICLE XIV
AMENDMENTS
----------
Section 1. General: Except as provided in Sections 2 and 3 hereof, all
By-Laws of the Corporation, whether adopted by the board of
directors or the stockholders, shall be subject to amendment,
alteration or repeal, and new By-Laws may be made, by the
affirmative vote of a majority of either:
(a) the holders of record of the outstanding shares of stock of
the Corporation entitled to vote, at any meeting, the notice or
waiver of notice of which shall have specified or summarized the
proposed amendment, alteration, repeal or new By-Law; or
(b) the directors, at any regular or special meeting the notice
or waiver of notice of which shall have specified or summarized
the proposed amendment, alteration, repeal or new By-Law.
Section 2. By Stockholders Only:
(a) No amendment of any section of these By-Laws shall be made
except by the stockholders of the Corporation if the By-Laws
provide that such section may not be amended, altered or repealed
except by the stockholders.
(b) From and after the issuance of any shares of the capital
stock of the Corporation, no amendment of this Article XVI shall
be made except by the stockholders of the Corporation.
Section 3. Limitation on Amendment: No amendment to Article VI of these
By-Laws shall narrow or eliminate any right to expenses,
indemnification or insurance for any claim or proceeding arising
out of conduct occurring prior to said amendment.
These By-Laws were adopted by the Directors of the Company on October 5, 1999.
EXHIBIT 23D
INVESTMENT ADVISORY AGREEMENT
FAIRHOLME FUNDS, INC.
This Agreement is made and entered into as of the 15th of October, 1999, by
and between Fairholme Funds, Inc., a Maryland corporation (the "Fund"), and
Fairholme Capital Management, LLC, a New Jersey limited liability company
("Adviser").
WHEREAS, the Fund is an open-end management investment company, registered
under the Investment Company Act of 1940, as amended (the "Act"), and is
authorized to issue shares representing interests in the following series:
The Fairholme Fund (the "Portfolio"); and
WHEREAS, Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, and engages in the business of asset
management; and
WHEREAS, the Fund desires to retain Adviser to render certain investment
management services to the Fund and Adviser is willing to render such services;
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. OBLIGATIONS OF INVESTMENT ADVISER
(A) SERVICES. Adviser agrees to perform the following services (the
"Services") for the Fund:
(1) manage the investment and reinvestment of the Portfolio's assets;
(2) continuously review, supervise, and administer the investment
program of the Portfolio;
(3) determine, in its discretion, the securities to be purchased,
retained or sold (and implement those decisions);
(4) provide the Fund with records concerning Adviser's activities
which the Fund is required to maintain; and
(5) render regular reports to the Fund's officers and directors
concerning Adviser's discharge of the foregoing responsibilities.
<PAGE>
Adviser shall discharge the foregoing responsibilities subject to the
general supervision and control of the officers and the directors of the Fund
and in compliance with such policies as the directors may from time to time
establish, and in compliance with the objectives, policies, and limitations of
the Portfolio set forth in the Fund's prospectus and statement of additional
information, as amended from time to time, and with all applicable laws and
regulations. All Services to be furnished by Adviser under this Agreement may be
furnished through the medium of any directors, officers or employees of Adviser
or through such other parties as Adviser may determine from time to time.
Adviser agrees, at its own expense or at the expense of one or more of its
affiliates, to render the Services and to provide the office space, furnishings,
equipment and personnel as may be reasonably required in the judgment of the
Board of Directors of the Fund to perform the Services on the terms and for the
compensation provided herein. Adviser shall authorize and permit any of its
officers, directors and employees, who may be elected as directors or officers
of the Fund, to serve in the capacities in which they are elected.
Except to the extent expressly assumed by Adviser herein and except to the
extent required by law to be paid by Adviser, the Fund shall pay all costs and
expenses in connection with its operation and organization.
(B) BOOKS AND RECORDS. All books and records prepared and maintained by
Adviser for the Fund under this Agreement shall be the property of the Fund and,
upon request therefor, Adviser shall surrender to the Fund such of the books and
records so requested.
2. PORTFOLIO TRANSACTIONS. Adviser is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio securities for
the Portfolio and is directed to use its best efforts to obtain the best net
results as described in the Fund's prospectus from time to time. Adviser may, in
its discretion, purchase and sell portfolio securities from and to brokers and
dealers who provide the Portfolio with research, analysis, advice and similar
services, and Adviser may pay to these brokers and dealers, in return for
research and analysis, a higher commission or spread than may be charged by
other brokers and dealers, provided that Adviser determines in good faith that
such commission is reasonable in terms either of that particular transaction or
of the overall responsibility of Adviser to the Fund and its other clients and
that the total commission paid by the Fund will be reasonable in relation to the
benefits to the Portfolio over the long-term. Adviser will promptly communicate
to the officers and the directors of the Fund such information relating to
portfolio transactions as they may reasonably request.
3. COMPENSATION OF ADVISER. The Fund will pay to Adviser on the last day of
each month a fee at an annual rate equal to 0.50% of the daily average net asset
value of the Portfolio, such fee to be computed daily based upon the net asset
value of the Portfolio as determined by a valuation made in accordance with the
Fund's procedures for calculating Portfolio net asset value as described in the
Fund's Prospectus and/or Statement of Additional Information. During any period
when the determination of a Portfolio's net asset value is suspended by the
directors of the Fund, the net asset value of a share of the Portfolio as of the
last business day prior to such suspension shall, for the purpose of this
Paragraph 3, be deemed to be net asset value at the close of each succeeding
business day until it is again determined.
<PAGE>
4. STATUS OF INVESTMENT ADVISER. The services of Adviser to the Fund are
not to be deemed exclusive, and Adviser shall be free to render similar services
to others so long as its services to the Fund are not impaired thereby. Adviser
shall be deemed to be an independent contractor and shall, unless otherwise
expressly provided or authorized, have no authority to act for or represent the
Fund in any way or otherwise be deemed an agent of the Fund. Nothing in this
Agreement shall limit or restrict the right of any director, officer or employee
of Adviser, who may also be a director, officer, or employee of the Fund, to
engage in any other business or to devote his or her time and attention in part
to the management or other aspects of any other business, whether of a similar
nature or a dissimilar nature.
5. PERMISSIBLE INTERESTS. Directors, agents, and stockholders of the Fund
are or may be interested in Adviser (or any successor thereof) as directors,
partners, officers, or stockholders, or otherwise, and directors, partners,
officers, agents, and stockholders of Adviser are or may be interested in the
Fund as directors, stockholders or otherwise; and Adviser (or any successor) is
or may be interested in the Fund as a stockholder or otherwise.
6. LIABILITY OF INVESTMENT ADVISER. Adviser assumes no responsibility under
this Agreement other than to render the services called for hereunder in good
faith. Adviser shall not be liable for any error of judgment or for any loss
suffered by the Fund in connection with the matters to which this Agreement
relates, except a loss resulting from a breach of fiduciary duty with respect to
receipt of compensation for services (in which case any award of damages shall
be limited to the period and the amount set forth in Section 36(b)(3) of the
Investment Company Act of 1940 or a loss resulting from willful misfeasance, bad
faith or gross negligence on its part in the performance of, or from reckless
disregard by it of its obligations and duties under, this Agreement.
7. TERM. This Agreement shall remain in effect until October 15, 2001, and
from year to year thereafter provided such continuance is approved at least
annually by (1) the vote of a majority of the Board of Directors of the Fund or
(2) a vote of a "majority" (as that term is defined in the Investment Company
Act of 1940) of the Fund's outstanding securities, provided that in either event
the continuance is also approved by the vote of a majority of the directors of
the Fund who are not parties to this Agreement or "interested persons" (as
defined in the Act) of any such party, which vote must be cast in person at
meeting called for the purpose of voting on such approval; provided, however,
that;
(a) the Fund may, at any time and without the payment of any penalty,
terminate this Agreement upon 60 days written notice to Adviser;
(b) the Agreement shall immediately terminate in the event of its
assignment (within the meaning of the Act and the Rules thereunder);
and
(c) Adviser may terminate this Agreement without payment of penalty on 60
days written notice to the Fund; and
(d) the terms of paragraph 6 of this Agreement shall survive the
termination of this Agreement.
<PAGE>
8. NOTICES. Except as otherwise provided in this Agreement, any notice or
other communication required by or permitted to be given in connection with this
Agreement will be in writing and will be delivered in person or sent by first
class mail, postage prepaid or by prepaid overnight delivery service to the
respective parties as follows:
If to the Fund: If to the Adviser:
- --------------- ------------------
Fairholme Funds, Inc. Fairholme Capital Management, LLC
51 JFK Parkway 51 JFK Parkway
Short Hills, NJ 07078 Short Hills, NJ 07078
Bruce R. Berkowitz Michael J. Senior
President Chief Financial Officer
9. 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 amendment of this Agreement shall be effective
until approved by vote of the holders of a majority of the Fund's outstanding
voting securities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and the year first written above.
FAIRHOLME CAPITAL
FAIRHOLME FUNDS, INC. MANAGEMENT, LLC
- ------------------------------- ------------------------------
By: Bruce R. Berkowitz By: Michael J. Senior
President Chief Financial Officer
ATTEST: ATTEST:
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By:
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Its: Secretary Its: Secretary
[Corporate Seal] [Corporate Seal]
EXHIBIT 23H(1)
OPERATING SERVICES AGREEMENT
FAIRHOLME FUNDS, INC.
THIS AGREEMENT is made and entered into as of the 15TH day of October,
1999, by and between Fairholme Funds, Inc., a Maryland corporation (the "Fund"),
and Fairholme Capital Management, LLC, a Delaware limited liability company
(hereinafter referred to as "Manager").
WHEREAS, the Fund is an open-end management investment company, registered
under the Investment Company Act of 1940, as amended (the "Act"), and authorized
to issue shares representing interests in the following series:
The Fairholme Fund (the "Portfolio"); and
WHEREAS, Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, and engages in the business of asset management
and the provision of certain other administrative and recordkeeping services in
connection therewith; and
WHEREAS, the Fund wishes to engage Manager, to provide, OR ARRANGE FOR THE
PROVISION OF, certain operational services which are necessary for the
day-to-day operations of the Portfolio in the manner and on the terms and
conditions hereinafter set forth, and Manager wishes to accept such engagement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the Fund and Manager agree as follows:
1. OBLIGATIONS OF MANAGER
(a) Services. The Fund hereby retains Manager to provide, or, upon receipt
of written approval of the Fund arrange for other companies to provide, the
following services to the Portfolio in the manner and to the extent that such
services are reasonably necessary for the operation of the Portfolio
(collectively, the "Services"):
(1) accounting services and functions, including costs and expenses of any
independent public accountants;
(2) non-litigation related legal and compliance services, including the
expenses of maintaining registration and qualification of the Fund and
the Portfolio under federal, state and any other applicable laws and
regulations;
(3) dividend disbursing agent, dividend reinvestment agent, transfer
agent, and registrar services and functions (including answering
inquiries related to shareholder Portfolio accounts);
(4) custodian and depository services and functions;
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(5) distribution, marketing, and/or underwriting services;
(6) independent pricing services;
(7) preparation of reports describing the operations of the Portfolio,
including the costs of providing such reports to broker-dealers,
financial institutions and other organizations which render services
and assistance in connection with the distribution of shares of the
Portfolio;
(8) sub-accounting and recordkeeping services and functions (other than
those books and records required to be maintained by Manager under the
Investment Advisory Agreement between the Fund and Manager dated
October 15, 1999), including maintenance of shareholder records and
shareholder information concerning the status of their Portfolio
accounts by investment advisors, broker-dealers, financial
institutions, and other organizations on behalf of Manager;
(9) shareholder and board of directors communication services, including
the costs of preparing, printing and distributing notices of
shareholders' meetings, proxy statements, prospectuses, statements of
additional information, Portfolio reports, and other communications to
the Fund's Portfolio shareholders, as well as all expenses of
shareholders' and board of directors' meetings, including the
compensation and reimbursable expenses of the directors of the Fund;
(10) other day-to-day administrative services, including the costs of
designing, printing, and issuing certificates representing shares of
the Portfolio, and premiums for the fidelity bond maintained by the
Fund pursuant to Section 17(g) of the Act and rules promulgated
thereunder (except for such premiums as may be allocated to third
parties, as insureds thereunder).
(b) Exclusions from Service. Notwithstanding the provisions of Paragraph
1(a) above, the Services shall not include and Manager will not be responsible
for any of the following:
(1) all brokers' commissions, issue and transfer taxes, and other costs
chargeable to the Fund or the Portfolio in connection with securities
transactions to which the Fund or the Portfolio is a party or in
connection with securities owned by the Fund or the Portfolio;
(2) the interest on indebtedness, if any, incurred by the Fund or the
Portfolio;
(3) the taxes, including franchise, income, issue, transfer, business
license, and other corporate fees payable by the Fund or the Portfolio
to federal, state, county, city, or other governmental agents;
(4) the expenses, including fees and disbursements of counsel, in
connection with litigation by or against the Fund or the Portfolio;
and
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(5) any other extraordinary expense of the Fund or Portfolio.
(c) Books and Records. All books and records prepared and maintained by
Manager for the Fund under this Agreement shall be the property of the Fund and,
upon request therefor, Manager shall surrender to the Fund such of the books and
records so requested.
(d) Staff and Facilities. Manager assumes and shall pay for maintaining the
staff, personnel, space, equipment and facilities necessary to perform its
obligations under this Agreement.
2. OBLIGATIONS OF THE FUND
(a) Fee. The Fund will pay to Manager on the last day of each month a fee
at an annual rate equal to 0.50% of average net asset of the Portfolio, such fee
to be computed daily based upon the net asset value of the Portfolio as
determined by a valuation made in accordance with the Fund's procedure for
calculating Portfolio net asset value as described in the Fund's Prospectus
and/or Statement of Additional Information. During any period when the
determination of the Portfolio's net asset value is suspended by the directors
of the Fund, the net asset value of a share of the Portfolio as of the last
business day prior to such suspension shall, for the purpose of this Paragraph
2(a), be deemed to be the net asset value at the close of each succeeding
business day until it is again determined.
(b) Information. The Fund will, from time to time, furnish or otherwise
make available to Manager such information relating to the business and affairs
of the Portfolio as Manager may reasonably require in order to discharge its
duties and obligations hereunder.
3. TERM. This Agreement shall remain in effect until October 15, 2001, and from
year to year thereafter provided such continuance is approved at least annually
by (1) the vote of a majority of the Board of Directors of the Fund or (2) a
vote of a "majority" (as that term is defined in the Investment Company Act of
1940) of the Fund's outstanding securities; provided, however, that;
(a) at any time and without the payment of any penalty, the Fund may
terminate this Agreement upon 90 days written notice to Manager;
(b) this Agreement shall immediately terminate in the event of its
assignment (within the meaning of the Act and the Rules thereunder); and
(c) at any time and without the payment of any penalty, Manager may
terminate this Agreement upon 90 days written notice to the Fund.
4. NOTICES. Except as otherwise provided in this Agreement, any notice or other
communication required by or permitted to be given in connection with this
Agreement will be in writing and will be delivered in person or sent by first
class mail, postage prepaid or by prepaid overnight delivery service to the
respective parties as follows:
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If to the Fund: If to the Adviser:
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Fairholme Funds, Inc. Fairholme Capital Management, LLC
51 JFK Parkway 51 JFK Parkway
Short Hills, NJ 07078 Short Hills, NJ 07078
Bruce R. Berkowitz Michael J. Senior
President Chief Financial Officer
5. MISCELLANEOUS
(a) Performance Review. Manager will permit representatives of the Fund,
including the Fund's independent auditors, to have reasonable access to the
personnel and records of Manager in order to enable such representatives to
monitor the quality of services being provided and the level of fees due
Manager pursuant to this Agreement. In addition, Manager shall promptly
deliver to the Board of Directors of the Fund such information as may
reasonably be requested from time to time to permit the Board of Directors
to make an informed determination regarding continuation of this Agreement
and the payments contemplated to be made hereunder.
(b) Choice of Law. This Agreement shall be construed in accordance with the
laws of the State of Maryland and the applicable provisions of the Act. To
the extent the applicable law of the State of Maryland or any of the
provisions herein conflict with the applicable provisions of the Act, the
latter shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
FAIRHOLME CAPITAL
FAIRHOLME FUNDS, INC. MANAGEMENT, LLC
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By: Bruce R. Berkowitz By: Michael J. Senior
Its: President Its: Chief Financial Officer
ATTEST: ATTEST:
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By: By:
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Secretary Secretary
