As filed with the Securities and Exchange
Commission on June 29, 1998
Registration No. 2-63270
File No. 811-6146
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
POST-EFFECTIVE AMENDMENT NO. 29 [X]
and
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 31 [X]
BAILARD, BIEHL & KAISER INTERNATIONAL FUND GROUP, INC.
(Exact name of registrant as specified in charter)
950 Tower Lane, Suite 1900
Foster City, California 94404
(Address of principal executive offices)
Telephone number (including area code): (800) 882-8383
PETER M. HILL, CHAIRMAN
BAILARD, BIEHL & KAISER INTERNATIONAL FUND GROUP, INC.
950 Tower Lane, Suite 1900
Foster City, California 94404
(Name and address of agent for service of process)
Copies to:
ANDRE W. BREWSTER, ESQ.
HOWARD, RICE, NEMEROVSKI, CANADY, FALK & RABKIN, A PROFESSIONAL CORPORATION
Three Embarcadero Center, 7th Floor
San Francisco, California 94111-4065
Approximate date of proposed public offering: As soon as practicable after this
post-effective amendment becomes effective.
It is proposed that this filing will become effective (check appropriate box):
[X] Immediately upon filing pursuant to paragraph (b)
[_] On __(date)____, pursuant to paragraph (b) of Rule 485
[_] 60 days after filing pursuant to paragraph (a)(1)
[_] On (date) , pursuant to paragraph (a)(1)
[_] 75 days after filing pursuant to paragraph (a)(2)
[_] On __(date)____, pursuant to paragraph (a)(2) of Rule 485
If appropriate, check the following box:
[_] This post-effective amendment designates a new effective date for
a previously filed post-effective amendment.
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933:
An indefinite number of shares of Registrant's common stock are being registered
by this post-effective amendment to Registrant's registration statement in
accordance with Rule 24f-2 under the Investment Company Act of 1940. The
non-refundable fee required by paragraph (a)(3) of Rule 24f-2 has been paid to
the Commission. Registrant's most recent Rule 24f-2 Notice was filed on December
15, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and
the Investment Company Act of 1940, the Registrant certifies that it meets the
requirements of effectiveness of the Amendment under Rule 485(b) under the
Securities Act of 1933 and that the registrant has duly caused this Amendment to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Foster City, State of California, on the 21st day of May, 1998.
BAILARD, BIEHL & KAISER
INTERNATIONAL FUND GROUP, INC.
By /s/ Peter M. Hill
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Peter M. Hill
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Peter M. Hill Chairman; May 21, 1998
- --------------------------------- Director
Peter M. Hill(1)
/s/ Burnice E. Sparks, Jr. President; May 21, 1998
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Burnice E. Sparks, Jr.
/s/ Barbara V. Bailey Treasurer May 21, 1998
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Barbara V. Bailey(2)
/s/ Shirley L. Clayton Director May 21, 1998
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Shirley L. Clayton
/s/ Scott F. Wilson Director May 21, 1998
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Scott F. Wilson
/s/ James C. Van Horne Director May 21, 1998
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James C. Van Horne
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(1) Principal Executive Officer
(2) Principal Financial and Accounting Officer
STATE OF MARYLAND
65315
STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION
301 West Preston Street Baltimore, Maryland 21201
DATE: JUNE 12, 1990
THIS IS TO ADVISE YOU THAT YOUR ARTICLES OF INCORPORATION FOR BAILARD,
BIEHL & KAISER INTERNATIONAL FUND GROUP, INC. WERE RECEIVED AND APPROVED FOR
RECORD ON JUNE 12, 1990 AT 2:50 P.M.
FEE PAID: 111.00
[SEAL]
JOYCE M. THOMPSON
LEGAL OFFICER
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BAILARD, BIEHL & KAISER
INTERNATIONAL FUND GROUP, INC.
ARTICLES OF INCORPORATION
FIRST: THE UNDERSIGNED, Timothy F. Cox, whose address is 1100
Charles Center South, 36 South Charles Street, Baltimore, Maryland 21201, being
at least eighteen years of age, as incorporator, does hereby form a corporation
under and by virtue of the General Laws of the State of Maryland.
SECOND: The name of the corporation (which is hereinafter called
the "Corporation") is:
Bailard, Biehl & Kaiser International Fund Group, Inc.
THIRD: The purposes for which and any of which the Corporation is
formed and the business and objects to be carried on and promoted by it are:
(1) To engage generally in the business of investing, reinvesting,
owning, holding and trading in securities, as defined in the Investment Company
Act of 1940, as from time to time amended (hereinafter referred to as the "1940
Act"), to issue redeemable securities, and to engage generally in the business
of an open-end investment company of the management type.
(2) To subscribe for, purchase or otherwise acquire and invest and
reinvest in, to hold for investment or otherwise, to sell, transfer, assign,
negotiate, exchange, lend, pledge or otherwise dispose of, and to turn to
account or realize upon and generally deal in and with (a) securities (which
term, securities, shall include without limitation any and all bills, notes,
bonds, debentures or other obligations or evidences of indebtedness,
certificates of deposit, bankers acceptances, commercial paper, repurchase
agreements or other money market instruments; stocks, shares or other equity
ownership interests; and warrants, options, rights or other instruments
representing rights to subscribe for, purchase, receive or otherwise acquire or
to sell, transfer, assign or otherwise dispose of, and scrip, certificates,
receipts or other instruments evidencing any ownership rights or interests in
any of the foregoing), "when issued" and "delayed delivery" contracts for
securities, issued, guaranteed or sponsored by any governments, political
subdivisions or governmental authorities, agencies or instrumentalities, by any
individuals, firms, companies, corporations, syndicates, association or trusts,
or by any other organizations or entities whatsoever,
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STATE OF MARYLAND
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I hereby certify that this is a true and complete copy of the 16 page
document on file in this office. DATED: June 12, 1990
STATE DEPARTMENT OF ASSESSMENTS AND TAXATION
BY: /s/ [ILLEGIBLE]
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This stamp replaces our previous certification system. Effective: 10/84
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irrespective of their forms or the names by which they may be described, whether
or not they be organized and operated for profit, and whether they be domestic
or foreign with respect to The State of Maryland or the United States of
America, (b) options, forward contracts, futures contracts, and options on
futures contracts or other instruments relating to foreign currencies,
securities, indices and commodities, (c) precious metals and other minerals,
contracts to purchase and sell, and other interests of every nature and kind in,
such metals or minerals and (d) rare coins and other numismatic items; and to
issue in exchange therefor or in payment thereof its own capital stock, bonds or
other obligations or securities, or otherwise pay therefor in money or other
property; to possess and exercise as owner thereof all the rights, powers and
privileges of ownership including the right to execute consents and vote
thereon, and to do any and all acts and things necessary or advisable for the
preservation, protection, improvement and enhancement in value thereof.
(3) To purchase, redeem or otherwise acquire, and to hold, sell or
otherwise dispose of, and to retire and reissue, shares of its own stock of any
class and any other securities issued by it in any manner now or hereafter
authorized or permitted by law.
(4) To carry out all or any part of the objects and purposes of the
Corporation and to conduct its business in all or any of its branches, in any or
all states, territories, districts and possessions of the United States of
America and in foreign countries; and to maintain offices and agencies in any or
all states, territories, districts and possessions of the United States of
America and in foreign countries.
The foregoing enumerated purposes and objects shall 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 this Charter of the Corporation, and each
shall be regarded as independent; and they are intended to be and shall be
construed as powers as well as purposes and objects of the Corporation and shall
be in addition to and not *in limitation of the general powers of corporations
under the General Laws of the State of Maryland.
FOURTH: The present address of the principal office of the
Corporation in this State is The Corporation Trust, Incorporated, 32 South
Street, Baltimore, Maryland 21202.
FIFTH: The name and address of the resident agent of the
Corporation are The Corporation Trust, Incorporated, 32 South Street, Baltimore,
Maryland 21202. Said resident agent is a Maryland corporation.
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SIXTH: (a) The total number of shares of stock of all classes which
the Corporation initially has authority to issue is one billion (1,000,000,000)
shares of capital stock (par value $.0001 per share), amounting in aggregate par
value to $100,000. All of such shares are classified as "Common Stock". The
Board of Directors may classify and reclassify any unissued shares of capital
stock into one or more additional or other classes or series as may be
established from time to time by setting or changing in any one or more respects
the designations, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications or terms or conditions
of redemption of such shares of stock; provided, that the Board of Directors
shall not classify or reclassify any of such shares into any class or series of
stock which is prior to any class or series of stock then outstanding with
respect to rights upon the liquidation, dissolution, or winding up of the
affairs of, or upon any distribution of the general assets of, the corporation
and provided further that there may be variations so fixed and determined among
different series and classes as to investment objectives, purchase price, right
of redemption, dividend and liquidation rights, with respect to assets belonging
to a particular series. or class, voting powers, and conversion rights.
(b) The following is a description of the preferences, conversion
and other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption of the "Bailard, Biehl &
Kaiser International Equity Fund" Series (of which there are initially
classified 100,000,000 shares) and the "Bailard, Biehl & Kaiser International
Fixed-Income Fund" Series (of which there are initially classified 100,000,000
shares) and any additional class or series of Common Stock of the Corporation
(unless provided otherwise by the Board of Directors with respect to any such
additional class or series at the time of establishing and designating such
additional class or series).
(1) Assets Belonging to Class or Series. All consideration
received by the Corporation from the issue or sale of shares . of
a particular class or series, 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 irrevocably
belong to that class or series for all purposes,
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subject only to the rights of creditors, and shall be so recorded
upon the books of account of the Corporation. Such consideration,
assets, 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,
together with any General Items allocated to that class or series
as provided in the following sentence, are herein referred to as
assets belonging to that class or series. In the event that there
are any assets, income, earnings, profits, and proceeds thereof,
funds, or payments which are not readily identifiable as belonging
to any particular class or series (collectively "General Items"),
such General Items shall be allocated by or under the supervision
of the Board of Directors to and among any one or more of the
classes or series established and designated from time to time in
such manner and on such basis as the Board of Directors, in its
sole discretion, deems fair and equitable; and any General Items
so allocated to a particular class or series shall belong to that
class or series. Each such allocation by the Board of Directors
shall be conclusive and binding for all purposes.
(2) Liabilities Belonging to Class or Series. The assets
belonging to each particular class or series shall be charged with
the liabilities of the Corporation in respect of that class or
series and all expenses, costs, charges and reserves attributable
to that class or series, and any general liabilities, expenses,
costs, charges or reserves of the Corporation which are not
readily identifiable as belonging to any particular class or
series shall be allocated and charged by or under the supervision
of the Board of Directors to and among any one or more of the
classes or series established and designated from time to time in
such manner and on such basis as the Board of Directors, in its
sole discretion, deems fair and equitable. The liabilities,
expenses, costs, charges and reserves allocated and so charged to
a class or series are herein referred to as "liabilities belonging
to" that class or series. Each allocation of liabilities,
expenses, costs, charges and reserves by the Board of Directors
shall be conclusive and binding for all purposes.
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(3) Income Belonging to Class or Series. The Board of
Directors shall have full discretion, to the extent not
inconsistent with the Maryland General Corporation Law and the
1940 Act, to determine which items shall be treated as income and
which items as capital; and each such determination and allocation
shall be conclusive and binding.
Income belonging to a class or series includes all income,
earnings and profits derived from assets belonging to that class
or series, less any expenses, costs, charges or reserves belonging
to that class or series, for the relevant time period, all
determined in accordance with generally accepted accounting
principles.
(4) Dividends. Dividends and distributions on shares of a
particular class or series may be 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 daily or otherwise
pursuant to a standing resolution or resolutions adopted only once
or with such frequency as the Board of Directors may determine,
after providing for actual and accrued liabilities belonging to
that class.
All dividends on shares of a particular class or series
shall be paid only out of the income belonging to that class or
series and capital gains distributions on shares of a particular
class or series shall be paid only out of the capital gains
belonging to that class or series. All dividends and distributions
on shares of a particular class or series shall be distributed pro
rata to the holders of that class or series in proportion to the
number of shares of that class or series held by such holders at
the date and time of record established for the payment of such
dividends or distributions, except that 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 stockholder'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.
The Corporation intends to qualify as a "regulated
investmentcompany" under the Internal Revenue Code of 1986, or any
successor or comparable statute thereto, and regulations
promulgated
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thereunder. Inasmuch as the computation of net income and gains
for Federal income tax purposes may vary from the computation
thereof on the books of the Corporation, 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 gains distributions, amounts sufficient, in
the opinion of the Board of Directors, to enable the Corporation
to qualify as a regulated investment company and to avoid
liability of the Corporation for Federal income 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 the Corporation for
such tax.
Dividends and distributions may be made in cash, property or
additional shares of the same or another class or series, 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 for the election by each stockholder of the
mode of the making of such dividend or distribution to that
stockholder. Any such dividend or distribution paid in shares will
be paid at the net asset value thereof as defined in subsection
(9) below.
(5) Liquidation. In the event of the liquidation or
dissolution of the Corporation or of a particular class or series,
the stockholders of each class or series that has been established
and designated and is being liquidated shall be entitled to
receive, as a class or series, when and as declared by the Board
of Directors, the excess of the assets belonging to that class or
series over the liabilities belonging to that class or series. The
holders of shares of any particular class or series shall not be
entitled thereby to any distribution upon liquidation of any other
class or series. The assets so distributable to the stockholders
of any particular class or series shall be distributed among such
stockholders in proportion to the number of shares of that class
or series held by them and recorded on the books of the
Corporation. The liquidation of any particular class or series in
which there are shares then outstanding may be authorized by vote
of a majority of the Board of Directors then in office,
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subject to the approval of a majority of the outstanding
securities of that class or series, as defined in the 1940 Act,
and without the vote of the holders of any other class or series.
The liquidation or dissolution of a particular class or series may
be accomplished, in whole or in part, by the transfer of assets of
such class or series to another class or series or by the exchange
of shares of such class or series for the shares of another class
or series.
(6) 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 standing in his name on the books of the
Corporation, irrespective of the class or series thereof, and all
shares of all classes or series shall vote as a single class or
series ("Single Class Voting"); provided, however, that (a) as to
any matter with respect to which a separate vote of any class or
series is required by the 1940 Act or by the Maryland General
Corporation Law, such requirement as to a separate vote by that
class or series shall apply in lieu of Single Class Voting as
described above; (b) in the event that the separate vote
requirements referred to in (a) above apply with respect to one or
more classes or series, then, subject to (c) below, the shares of
all other classes or series shall vote as a single class or
series; and (c) as to any matter which does not affect the
interest of a particular class or series, including liquidation of
a particular class or series as described in subsection (5) above,
only the holders of shares of the one or more affected classes
shall be entitled to vote.
(7) Redemption at the Stockholder's Option. Each holder of
shares of a particular class or series 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 of that class
or series at a redemption price per share equal to the net asset
value per share of that class or series next determined (in
accordance with subsection (9)) after the shares are properly
tendered for redemption, less such redemption charge, if any, as
is determined by the Board of Directors consistent with the terms
of the 1940 Act. Payment of the redemption price shall be in cash;
provided, however, that if the Board of Directors determines,
which determination shall be conclusive, that conditions exist
which make payment wholly in cash unwise or undesirable, the
Corporation
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may make payment wholly or partly in securities or other assets
belonging to the class or series of which the shares being
redeemed are part at the value of such securities or assets used
in such determination of net asset value.
Notwithstanding the foregoing, the Corporation may postpone
payment of the redemption price and may suspend the right of the
holders of shares of any class or series to require the
Corporation to redeem shares of that class or series during any
period or at any time when and to the extent permissible under the
1940 Act.
(8) Redemption by Corporation. The Board of Directors may
cause the Corporation to redeem at net asset value the shares of
any class from a holder (i) if such redemption is, in the opinion
of the Board of Directors of the Corporation, desirable in order
to prevent the Corporation from being deemed a "personal holding
company" within the meaning of the Internal Revenue Code of 1986,
as amended, or (ii) if such holder has ceased to be a qualified
investor in the Corporation, or the value of such holder's shares
in the Corporation has fallen below the minimum initial investment
required of such holder, all as determined from time to time by
the Board of Directors and described in the prospectus of the .
Corporation relating to such shares, provided that in the case of
a redemption pursuant to clause (ii) hereof at least thirty (30)
days prior written notice of the proposed redemption has been
given to such holder by postage paid mail to his last known
address. Upon redemption of shares pursuant to this subsection,
the Corporation shall promptly cause payment of the full
redemption price to be made to the holder of shares so redeemed.
(9) Net Asset Value Per Share. The net asset value per share
of any class or series shall be the quotient obtained by dividing
the value of the net assets of that class or series (being the
value of the assets belonging to that class or series less the
liabilities belonging to that class or series) by the total number
of shares of that class or series outstanding, all determined by
the Board of Directors in accordance with generally accepted
accounting principles and not inconsistent with the 1940 Act.
The Board of Directors may determine to maintain the net
asset value per share of any class or series at a designated
constant dollar amount and in
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connection therewith may adopt procedures not inconsistent with
the 1940 Act for the continuing declarations of income
attributable to that class or series as dividends payable in
additional shares of that class or series at the designated
constant dollar amount and for the handling of any losses
attributable to that class or series. Such procedures may provide
that in the event of any loss, each stockholder shall be deemed to
have contributed to the capital of the Corporation attributable to
that class or series his pro rata portion of the total number of
shares required to be cancelled in order to permit the net asset
value per share of that class or series to be maintained, after
reflecting such loss, at the designated constant dollar amount.
Each stockholder of the Corporation shall be deemed to have
agreed, by his investment in any class or series with respect to
which the Board of Directors shall have adopted any such
procedure, to make the contribution referred to in the preceding
sentence in the event of any such loss.
(10) Equality. All shares of each particular class or series
shall represent an equal proportionate interest in the assets
belonging to that class or series (subject to the liabilities
belonging to that class or series), and each share of any
particular class or series shall be equal to each other share of
that class or series. The Board of Directors may from time to time
divide or combine the shares of any particular class or series
into a greater or lesser number of shares of that class or series
without thereby changing the proportionate beneficial interest in
the assets belonging to that class or series or in any way
affecting the rights of shares of any other class or series.
(11) Conversion or Exchange Rights. Subject to compliance
with the requirements of the 1940 Act, the Board of Directors
shall have the authority to provide that holders of shares of any
class or series shall have the right to convert or exchange said
shares into shares of one or more other classes or series of
shares in accordance with such requirements and procedures as may
be established by the Board of Directors.
(12) Fractional Shares. The Corporation may issue and sell
fractions of shares having pro rata all the rights of full shares,
including, without
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limitation, the right to vote and to receive dividends, and
wherever the words "share" or "shares" are used in this Charter 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.
(13) Stock Certificates. The Corporation shall not be
obligated to issue certificates representing shares of any class
or series unless it shall receive a written request therefor from
the record holder thereof in accordance with procedures
established in the By-Laws or by the Board of Directors.
(14) Transfer Restrictions. If, in the opinion of the Board
of Directors of the Corporation, concentration of ownership of
shares of Common Stock may cause the Corporation to be deemed a
personal holding company within the meaning of the Internal
Revenue Code of 1986, as amended, the Corporation may at any time
and from time to time refuse to give effect on the books of the
Corporation to any transfer or transfers of any share or shares of
Common Stock in an effort to prevent such personal holding company
status.
(c) Subject to the foregoing and to the requirements of the 1940
Act, the power of the Board, of Directors to classify and reclassify any of the
shares of capital stock shall include, without limitation, subject to the
provisions of this Charter, authority to classify or reclassify any unissued
shares of such stock into one or more classes or series of common stock, special
stock or other stock, and to subdivide and resubdivide shares of any class or
series into one or more subclasses or subseries of such class or series, by
determining, fixing, or altering one or more of the following:
(1) The distinctive designation of such class or series and
the number of shares to constitute such class or series; provided
that, unless otherwise prohibited by the terms of such or any
other class or series, the number of shares of any class or series
may be decreased by the Board of Directors in connection with any
classification or reclassification of unissued shares and the
number of shares of such class or series may be increased by the
Board of Directors in connection with any such classification or
reclassification, and any shares of any class or series which have
been redeemed, purchased, otherwise acquired or converted into
shares of Common Stock or
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any other class or series shall become part of the authorized
capital stock and be subject to classification and
reclassification as provided in this Section.
(2) Whether or not and, if so, the rates, amounts and times
at which, and the conditions under which, dividends shall be
payable on shares of such class or series, whether any such
dividends shall rank senior or junior to or on a parity with the
dividends payable on any other class or series of stock, and the
status of any such dividends as cumulative, cumulative to a
limited extent or non-cumulative and as participating or
non-participating.
(3) Whether or not shares of such class or series shall have
voting rights, in addition to any voting rights provided by law
and, if so, the terms of such voting rights.
(4) Whether or not shares of such class or series shall have
conversion or exchange privileges and, if so, the terms and
conditions thereof, including provision for adjustment of the
conversion or exchange rate in such events or at such times as the
Board of Directors shall determine.
(5) Whether or not shares of such class or series shall be
subject to redemption and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they
shall be redeemable and the amount per share payable in case of
redemption, which amount may vary under different conditions and
at different redemption dates; and whether or not there shall be
any sinking fund or purchase account in respect thereof, and if
so, the terms thereof.
(6) The rights of the holders of shares of such class or
series upon the liquidation, dissolution or winding up of the
affairs of, or upon any distribution of the assets of, the
Corporation, which rights may vary depending upon whether such
liquidation, dissolution or winding up is voluntary or involuntary
and, if voluntary, may vary at different dates, and whether such
rights shall rank senior or junior to or on a parity with such
rights of any other class or series of stock.
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(7) whether or not there shall be any limitations
applicable, while shares of such class or series are outstanding,
upon the payment of dividends or making of distributions on, or
the acquisition of, or the use of moneys for purchase or
redemption of, any stock of the Corporation, or upon any other
action of the Corporation, including action under this Section,
and, if so, the terms and conditions thereof.
(8) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of
such class or series, not inconsistent with law and this Charter
of the Corporation.
(d) Unless otherwise prohibited by law, so long as the Corporation
is registered as an open-end investment company under the 1940 Act, the Board of
Directors shall have the power and authority, without the approval of the
holders of any outstanding shares, to increase or decrease the number of shares
of capital stock or the number of shares of capital stock of any class or series
that the Corporation has authority to issue.
SEVENTH: The number of directors of the Corporation shall be five,
which number may be increased or decreased pursuant to the By-Laws of the
Corporation, but shall never be less than the minimum number permitted by the
General Laws of the State of Maryland now or hereafter in force. The names of
the directors who will serve until the first annual meeting and until their
successors are elected and qualify are as follows:
Shirley L. Clayton, Richard L. Holbrook, David R. Rahn,
David B. Shippey and James C. Van Horne
EIGHTH: The following provisions are hereby adopted for the purpose
of defining, limiting and regulating the powers of the Corporation and of the
directors and stockholders:
(1) The Board of Directors of the Corporation is hereby empowered
to authorize the issuance from time to time of shares of its stock of any class
or series, whether now or hereafter authorized, or securities convertible into
shares of its stock of any class or series, whether now or hereafter authorized,
for such consideration (which shall consist only of cash or securities) as may
be deemed advisable by the Board of Directors and without any action by the
stockholders.
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(2) No holder of any stock or any other securities of the
Corporation, whether now or hereafter authorized, shall have any preemptive
right to subscribe for or purchase any stock or any other securities of the
Corporation other than such, if any, as the Board of Directors, in its sole
discretion, may determine and at such price or prices and upon such other terms
as the Board of Directors, in its sole discretion, may fix; and any stock or
other securities which the Board of Directors may determine to offer for
subscription may, as the Board of Directors in its sole discretion shall
determine, be offered to the holders of any class, series or type of stock or
other securities at the time outstanding to the exclusion of the holders of any
or all other classes, series or types of stock or other securities at the time
outstanding.
(3) The Board of Directors of the Corporation shall have power from
time to time and in its sole discretion to determine whether and to what extent
and at what times and places and under what conditions and regulations the
books, accounts and documents of the Corporation, or any of them, shall be open
to the inspection of stockholders, except as otherwise provided by statute,
regulation or the By-Laws, and, except as so provided, no stockholder shall have
any right to inspect any book, account or document of the Corporation unless
authorized so to do by resolution of the Board of Directors.
(4) Unless the By-Laws otherwise provide and subject to any formal
employment agreements between the Corporation and any officer or employee, any
officer or employee of the Corporation (other than a director) may be removed at
any time with or without cause by the Board of Directors or by any committee or
superior officer upon whom such power of removal may be conferred by the By-Laws
or by authority of the Board of Directors.
(5) Notwithstanding any provision of law requiring the
authorization of any action by a greater proportion than a majority of the total
number of shares of all classes or series of capital stock or of the total
number of shares of any class or series of capital stock entitled to vote as a
separate class or series, such action shall be valid and effective if authorized
by the affirmative vote of the holders of a majority of the total number of
shares of all classes or series outstanding and entitled to vote thereon or of
the class or series entitled to vote thereon as a separate class or series, as
the case may be, except as otherwise provided in this Charter.
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(6) The Corporation shall indemnify (A) its directors and officers,
whether serving the corporation or at its request any other entity, to the full
extent required or permitted by the General Laws of the State of Maryland now or
hereafter in force, including the advance of expenses under the procedures and
to the full extent permitted by law, and (B) its other employees and agents to
such extent as shall be authorized by the Board of Directors or the
Corporation's By-Laws and be permitted by law. The foregoing rights of
indemnification shall not be exclusive of any other rights to which those
seeking indemnification may be entitled. The Board of Directors may take such
action as is necessary to carry out these indemnification provisions and is
expressly empowered to adopt, approve and amend from time to time such by-laws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment of this
Charter of the Corporation shall limit or eliminate the right to indemnification
provided hereunder with respect to acts or omissions occurring prior to such
amendment or repeal. Nothing contained herein shall be construed to authorize
the Corporation to indemnify any director or officer of the Corporation against
any liability to the Corporation or to any holders of securities of the
Corporation to which he is subject by reason of willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties involved in the conduct of
his office.
(7) To the fullest extent permitted by Maryland statutory and
decisional law and the 1940 Act, as amended or interpreted, no director or
officer of the Corporation shall be personally liable to the Corporation or its
stockholders for money damages; provided, however, that nothing herein shall be
construed to protect any director or officer of the Corporation against any
liability to which such director or officer would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence, or reckless disregard of
the duties involved in the conduct of his office. No amendment, modification or
repeal of this Article EIGHTH, Section 7 shall adversely affect any right or
protection of a director or officer that exists at the time of such amendment,
modification or repeal.
(8) The Corporation reserves the right from time to time to make
any amendments of its Charter which may now or hereafter be authorized by law,
including any amendments changing the terms or contract rights, as expressly set
forth in its Charter, of any of its outstanding stock by classification,
reclassification or otherwise.
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The enumeration and definition of particular powers of the Board of
Directors included in the foregoing shall in no way be limited or restricted by
reference to or inference from the terms of any other clause of this or any
other Article of this Charter of the Corporation, or construed as or deemed by
inference or otherwise in any manner to exclude or limit any powers conferred
upon the Board of Directors under the General Laws of the State of Maryland now
or hereafter in force.
NINTH: The duration of the Corporation shall be perpetual.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation,
acknowledging the same to be my act, on June 12, 1990.
WITNESS:
/s/ Janice A. McGarvey /s/ Timothy F. Cox
- ------------------------------------- ---------------------------------
Timothy F. Cox
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Exhibit A
BAILARD, BIEHL & KAISER
INTERNATIONAL FUND GROUP, INC.
BY-LAWS
ARTICLE I.
STOCKHOLDERS
SECTION 1.01. Annual Meeting. The Corporation is not required to
hold an annual meeting in any year in which the election of directors is not
required to be acted upon under the Investment Company Act of 1940, as amended
(the "1940 Act"). If the election of directors is required to be acted upon
under the 1940 Act then such meeting (or the first such meeting in any year)
shall be designated as the annual meeting of stockholders for that year. If the
1940 Act requires the Corporation to hold a meeting of stockholders to elect
directors, the meeting shall, unless otherwise required by the 1940 Act, be held
no later than 120 days after the occurrence of the event requiring the meeting.
Except as the Charter or statute provides otherwise, any business may be
considered at an annual meeting without the purpose of the meeting having been
specified in the notice. Failure to hold an annual meeting does not invalidate
the Corporation's existence or affect any otherwise valid corporate acts.
SECTION 1.02. Special Meeting. At any time in the interval
between annual meetings, a special meeting of the stockholders may be called by
the Chairman of the Board or the President or by a majority of the Board of
Directors by vote at a meeting or in writing (addressed to the Secretary of the
Corporation) with or without a meeting. Special meetings of the stockholders
shall be called as may be required by law.
SECTION 1.03. Place of Meetings. Meetings of stockholders shall
be held at such place in the United States as is set from time to time by the
Board of Directors.
SECTION 1.04. Notice of Meetings; Waiver of Notice. Not less
than ten nor more than 90 days before each stockholders' meeting, the Secretary
shall give written notice of the meeting to each stockholder entitled to vote at
the meeting and each other stockholder entitled to notice of the meeting. The
notice shall state the time and place of the meeting and, if the meeting is a
special meeting or notice of the purpose is required by statute, the purpose of
the meeting. Notice is given to a stockholder when it is personally delivered to
him, left at his residence or usual
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place of business, or mailed to him at his address as it appears on the records
of the Corporation. Notwithstanding the foregoing provisions, each person who is
entitled to notice waives notice if he before or after the meeting signs a
waiver of the notice which is filed with the records of stockholders, meetings,
or is present at the meeting in person or by proxy.
SECTION 1.05. Quorum; Voting. Unless statute or the Charter
provides otherwise, at a meeting of stockholders the presence in person or by
proxy of stockholders entitled to cast a majority of all the votes entitled to
be cast at the meeting constitutes a quorum, and a majority of all the votes
cast at a meeting at which a quorum is present is sufficient to approve any
matter which properly comes before the meeting, except that a plurality of all
the votes cast at a meeting at which a quorum is present is sufficient to elect
a director.
SECTION 1.06. Adjournments. Whether or not a quorum is present,
a meeting of stockholders convened on the date for which it was called may be
adjourned from time to time without further notice by a majority vote of the
stockholders present in person or by proxy to a date not more than 120 days
after the original record date. Any business which might have been transacted at
the meeting as originally notified may be deferred and transacted at any such
adjourned meeting at which a quorum shall be present.
SECTION 1.07. General Right to Vote; Proxies. Unless the Charter
provides for a greater or lesser number of votes per share or limits or denies
voting rights, each outstanding share of stock, regardless of class, is entitled
to one vote on each matter submitted to a vote at a meeting of stockholders. In
all elections for directors, each share of stock may be voted for as many
individuals as there are directors to be elected and for whose election the
share is entitled to be voted. A stockholder may vote the stock he owns of
record either in person or by written proxy signed by the stockholder or by his
duly authorized attorney in fact. Unless a proxy provides otherwise, it is not
valid more than 11 months after its date.
SECTION 1.08. List of Stockholders. At each meeting of
stockholders, a full, true and complete list of all stockholders entitled to
vote at such meeting, showing the number and class or series of shares held by
each and certified by the transfer agent for such class or series or by the
Secretary, shall be furnished by the Secretary.
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SECTION 1.09. Conduct of Business and Voting. At all meetings of
stockholders, unless the voting is conducted by inspectors, the proxies and
ballots shall be received, and all questions touching the qualification of
voters and the validity of proxies, the acceptance or rejection of votes and
procedures for the conduct of business not otherwise specified by these By-Laws,
the Charter or law, shall be decided or determined by the chairman of the
meeting. If demanded by stockholders, present in person or by proxy, entitled to
cast 10% in number of votes entitled to be cast, or if ordered by the chairman,
the vote upon any election or question shall be taken by ballot and, upon like
demand or order, the voting shall be conducted by two inspectors, in which event
the proxies and ballots shall ball be received, and all questions touching the
qualification of voters and the validity of proxies and the acceptance or
rejection of votes shall be decided, by such inspectors. Unless so demanded or
ordered, no vote need be by ballot and voting need not be conducted by
inspectors. The stockholders at any meeting may choose an inspector or
inspectors to act at such meeting, and in default of such election the chairman
of the meeting may appoint an inspector or inspectors. No candidate for election
as a director at a meeting shall serve as an inspector thereat.
SECTION 1.10. Informal Action by Stockholders. Any action
required or permitted to be taken at a meeting of stockholders may be taken
without a meeting if there is filed with the records of stockholders meetings an
unanimous written consent which sets forth the action and is signed by each
stockholder entitled to vote on the matter and a written waiver of any right to
dissent signed by each stockholder entitled to notice of the meeting but not
entitled to vote at it.
ARTICLE II.
BOARD OF DIRECTORS
SECTION 2.01. Function of Directors. The business and affairs of
the Corporation shall be managed under the direction of its Board of Directors.
All powers of the Corporation may be exercised by or under authority of the
Board of Directors, except as conferred on or reserved to the stockholders by
statute or by the Charter or By-Laws.
SECTION 2.02. Number of Directors. The Corporation shall have at
least three directors; provided that, if there is no stock outstanding, the
number of Directors may be less than three but not less than one, and, if there
is stock outstanding and so long as there are less than three stockholders, the
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number of Directors may be less than three but not less than the number of
stockholders. The Corporation shall have the number of directors provided in the
Charter until changed as herein provided. A majority of the entire Board of
Directors may alter the number of directors set by the Charter to not exceeding
25 nor less than the minimum number then permitted herein, but the action may
not affect the tenure of office of any director.
SECTION 2.03. Election and Tenure of Directors. At each annual
meeting, the stockholders shall elect directors to hold office until the next
annual meeting and until their successors are elected and qualify.
SECTION 2.04. Removal of Director. Unless statute or the Charter
provides otherwise, the stockholders may remove any director, with or without
cause, by the affirmative vote of at least two-thirds of all the votes entitled
to be cast for the election of directors.
SECTION 2.05. Vacancy on Board. The stockholders may elect a
successor to fill a vacancy on the Board of Directors which results from the
removal of a director. A director elected by the stockholders to fill a vacancy
which results from the removal of a director serves for the balance of the term
of the removed director. A majority of the remaining directors, whether or not
sufficient to constitute a quorum, may fill a vacancy on the Board of Directors
which results from any cause except an increase in the number of directors and a
majority of the entire Board of Directors may, fill a vacancy which results from
an increase in the number of directors. A director elected by the Board of
Directors to fill a vacancy serves until the next annual meeting of stockholders
and until his successor is elected and qualifies. Notwithstanding the foregoing,
no vacancies occurring in the Board of Directors may be filled by vote of the
remaining members of the Board if immediately after filling any such vacancy
less than two-thirds of the directors then holding office shall have been
elected to such office by the holders of the outstanding voting securities of
the Corporation at any annual or special meeting. In the event that at any time
less than a majority of the directors of the Corporation holding office at that
time were* so elected by the holders of the outstanding voting securities, the
Board of Directors of the Corporation shall forthwith cause to be held as
promptly as possible, and in any event within sixty (60) days, a meeting of such
holders for the purpose of electing directors to fill any existing vacancies in
the Board of Directors, unless such period is extended by order of the
Securities and Exchange Commission.
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SECTION 2.06. Regular Meetings. After each meeting of
stockholders at which directors shall have been elected, the Board of Directors
shall meet as soon as practicable for the purpose of organization and the
transaction of other business. In the event that no other time and place are
specified by resolution of the Board, the President or the Chairman, with notice
in accordance with Section 2.08, the Board of Directors shall meet immediately
following the close of, and at the place of, such stockholders' meeting. Any
other regular meeting of the Board of Directors shall be held on such date and
at any place as may be designated from time to time by the Board of Directors.
SECTION 2.07. Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board or the
President or by a majority of the Board of Directors by vote at a meeting, or in
writing with or without a meeting. A special meeting of the Board of Directors
shall be held on such date and at any place as may be designated from time to
time by the Board of Directors. In the absence of designation such meeting shall
be held at such place as may be designated in the call.
SECTION 2.08. Notice of Meeting. Except as provided in Section
2.06, the Secretary shall give notice to each director of each regular and
special meeting of the Board of Directors. The notice shall state the time and
place of the meeting. Notice is given to a director when it is delivered
personally to him, left at his residence or usual place of business, or sent by
telegraph, facsimile transmission or telephone, at least 24 hours before the
time of the meeting or, in the alternative by mail to his address as it shall
appear on the records of the Corporation, at least 72 hours before the time of
the meeting. Unless the By-Laws or a resolution of the Board of Directors
provides otherwise, the notice need not state the business to be transacted at
or the purposes of any regular or special meeting of the Board of Directors. No
notice of any meeting of the Board of Directors need be given to any director
who attends, or to any director who, in writing executed and filed with the
records of the meeting either before or after the holding thereof, waives such
notice. Any meeting of the Board of Directors, regular or special, may adjourn
from time to time to reconvene at the same or some other place, and no notice
need be given of any such adjourned meeting other than by announcement.
SECTION 2.09. Action by Directors. Unless statute or the Charter
or By-Laws requires a greater proportion, the action of a majority of the
directors present at a meeting at which a quorum is present is action of the
Board of Directors.
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A majority of the entire Board of Directors shall constitute a quorum for the
transaction of business. In the absence of a quorum, the directors present by
majority vote and without notice other than by announcement may adjourn the
meeting from time to time until a quorum shall attend. At any such adjourned
meeting at which a quorum shall be present, any business may be transacted which
might have been transacted at the meeting as originally notified. Any action
required or permitted to be taken at a meeting of the Board of Directors may be
taken without a meeting, if an unanimous written consent which sets forth the
action is signed by each member of the Board and filed with the minutes of
proceedings of the Board.
SECTION 2.10. Meeting by Conference Telephone. Members of the
Board of Directors may participate in a meeting by means of a conference
telephone or similar communications equipment if all persons participating in
the meeting can hear each other at the same time. Participation in a meeting by
these means constitutes presence in person at a meeting.
SECTION 2.11. Compensation. By resolution of the Board of
Directors a fixed sum and expenses, if any, for attendance at each regular or
special meeting of the Board of Directors or of committees thereof, and other
compensation for their services as such or on committees of the Board of
Directors, may be paid to directors. Directors who are full-time employees of
the Corporation need not be paid for attendance at meetings of the board or
committees thereof for which fees are paid to other directors. A director who
serves the Corporation in any other capacity also may receive compensation for
such other services, pursuant to a resolution of the directors.
ARTICLE III.
COMMITTEES
SECTION 3.01. Committees. The Board of Directors may appoint
from among its members an Executive Committee and other committees composed of
two or more directors and delegate to these committees any of the powers of the
Board of Directors, except the power to declare dividends or other distributions
on stock, elect directors, issue stock other than as provided in the next
sentence, recommend to the stockholders any action which requires stockholder
approval, amend the By-Laws, or approve any merger or share exchange which does
not require stockholder 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
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specified by the Board by resolution or by adoption of a stock option or other
plan, may f ix 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 3.02. Committee Procedure. Each committee may fix rules
of procedure for its business. A majority of the members of a committee shall
constitute a quorum for the transaction of business and the act of a majority of
those present at a meeting at which a quorum is present shall be the act of the
committee. The members of a committee present at any meeting, whether or not
they constitute a quorum, may appoint a director to act in the place of an
absent member. Any action required or permitted to be taken at a meeting of a
committee may be taken without a meeting, if an unanimous written consent which
sets forth the action is signed by each member of the committee and filed with
the minutes of the committee. The members of a committee may conduct any meeting
thereof by conference telephone in accordance with the provisions of Section
2.10.
ARTICLE IV.
OFFICERS
SECTION 4.01. 'Executive and other Officers. The Corporation
shall have a President, a Secretary, and a Treasurer. It may also have a
Chairman of the Board. The Board of Directors shall designate who shall serve as
chief executive officer, who shall have general supervision of the business and
affairs of the Corporation, and may designate a chief operating officer, who
shall have supervision of the operations of the Corporation. In the absence of
any designation the Chairman of the Board, if there be one, shall serve as chief
executive officer and the President shall serve as chief operating officer. In
the absence of the Chairman of the Board, or if there be none, the President
shall be the chief executive officer. The same person may hold both offices. The
Corporation may also have one or more Vice-Presidents, assistant officers, and
subordinate officers as may be established by the Board of Directors. A person
may hold more than one office in the Corporation except that no person may serve
concurrently as both President and Vice-President of the Corporation. The
Chairman of the Board shall be a director. other officers may be directors.
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SECTION 4.02. Chairman of the Board. The Chairman of the Board,
if one be elected, shall preside at all meetings of the Board of Directors and
of the stockholders at which he shall be present. Unless otherwise specified by
the Board of Directors, he shall be the chief executive officer of the
Corporation and perform the duties customarily performed by chief executive
officers, and may perform any duties of the President. In general, he shall
perform all such duties as are from time to time assigned to him by the Board of
Directors.
SECTION 4.03. President. Unless otherwise provided by resolution
of the Board of Directors, the President, in the absence of the Chairman of the
Board, shall preside at all meetings of the Board of Directors and of the
stockholders at which he shall be present. Unless otherwise specified by the
Board of Directors, the President shall be the chief operating officer of the
Corporation and perform the duties customarily performed by chief operating
officers. He may sign and execute, in the name of the Corporation, all
authorized deeds, mortgages, bonds, contracts or other instruments cases in
which the signing and execution thereof been expressly delegated to some other
officer or except in shall have agent of the Corporation. In general, he shall
perform such other duties usually performed by a president of a corporation and
such other duties as are from time to time assigned to him by the Board of
Directors or the chief executive officer of the Corporation.
SECTION 4.04. Vice-Presidents. The Vice-President or
Vice-Presidents, at the request of the chief executive officer or the President,
or in the President's absence or during his inability to act, shall perform the
duties and exercise the functions of the President, and when so acting shall
have the powers of the President. If there be more than one Vice-President, the
Board of Directors may determine which one or more of the Vice-Presidents shall
perform any of such duties or exercise any of such functions, or if such
determination is not made by the Board of Directors, the chief executive
officer, or the President may make such determination; otherwise any of the
Vice-Presidents may perform any of such duties or exercise any of such
functions. The Vice-President or Vice-Presidents shall have such other powers
and perform such other duties, and have such additional descriptive designations
in their titles (if any), as are from time to time assigned to them by the Board
of Directors, the chief executive officer, or the President.
SECTION 4.05. Secretary. The Secretary shall keep the minutes of
the meetings of the stockholders, of the Board of Directors and of any
committees, in books provided for the
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purpose; he shall see that all notices are duly given in accordance with the
provisions of the By-Laws or as required by law; he shall be custodian of the
records of the Corporation; he may witness any document on behalf of the
Corporation, the execution of which is duly authorized, see that the corporate
seal is affixed where such document is required or desired to be under its seal,
and, when so affixed, may attest the same; and, in general, he shall perform all
duties incident to the office of a secretary of a corporation, and such other
duties as are from time to time assigned to him by the Board of Directors, the
chief executive officer, or the President.
SECTION 4.06. Treasurer. The Treasurer shall have charge of and
be responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by the Board of
Directors; he shall render to the President and to the Board of Directors,
whenever requested, an account of the financial condition of the Corporation;
and, in general, he shall perform all the duties incident to the office of a
treasurer of a corporation, and such other duties as are from time to time
assigned to him by the Board of Directors, the chief executive officer, or the
President.
SECTION 4.07. Assistant and Subordinate Officers. The assistant
and subordinate officers of the Corporation are all officers below the office of
Vice-President, Secretary, or Treasurer. The assistant or subordinate officers
shall have such duties as are from time to time assigned to them by the Board of
Directors, the chief executive officer, or the President.
SECTION 4.08. Election, Tenure and Removal of Officers. The
Board of Directors shall elect the officers. The Board of Directors may from,
time to time authorize any committee or officer to appoint assistant and
subordinate officers. Election or appointment of an officer, employee or agent
shall not of itself create contract rights. All officers shall be appointed to
hold their offices, respectively, during the pleasure of the Board. The Board of
Directors (or, as to any assistant or subordinate officer, any committee or
officer authorized by the Board) may remove an officer at any time. The removal
of an officer does not prejudice any of his contract rights. The Board of
Directors (or, as to any assistant or subordinate officer, any committee or
officer authorized by the Board) may fill a vacancy which occurs. in any office
for the unexpired portion of the term.
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SECTION 4.09. Compensation. The Board of Directors shall have
power to f ix the salaries and other compensation and remuneration, of whatever
kind, of all officers of the Corporation. No officer shall be prevented from
receiving such salary by reason of the f act that he is also a director of the
Corporation. The Board of Directors may authorize any committee or officer, upon
whom the power of appointing assistant and subordinate officers may have been
conferred, to fix the salaries, compensation and remuneration of such assistant
and subordinate officers.
ARTICLE V.
STOCK
SECTION 5.01. Certificates for Stock. No stockholder is entitled
to certificates which represent. and certify the shares of stock he holds in the
Corporation however, upon a stockholder's written request to the Corporation,
the Corporation may, but is not required to, issue such certificates. Each stock
certificate shall include on its face the name of the Corporation, the name of
the stockholder or other person to whom it is issued, and the class or series of
stock and number of shares it represents. It shall be in such form, not
inconsistent with law or with the Charter, as shall be approved by the Board of
Directors or any officer or officers designated for such purpose by resolution
of the Board of Directors. Each stock certificate shall be signed by the
Chairman of the Board, the President, or a Vice-President, and countersigned by
the Secretary, an Assistant Secretary, the Treasurer, or an Assistant Treasurer.
Each certificate may be sealed with the actual corporate seal or a facsimile of
it or in any other form and the signatures may be either manual or facsimile
signatures. A certificate is valid and may be issued whether or not an officer
who signed it is still an officer when it is issued.
SECTION 5.02. Transfers. The Board of Directors shall have power
and authority to make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates of stock; and
may appoint transfer agents and registrars thereof. The duties of transfer agent
and registrar may be combined.
SECTION 5.03. Record Dates and Closing of Transfer Books. The
Board of Directors may set a record date or direct that the stock transfer books
be closed for a stated period for the purpose of making any proper determination
with respect to stockholders, including which stockholders are entitled to
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notice of a meeting, vote at a meeting, receive a dividend, or be allotted other
rights. The record date may not be prior to the close of business on the day the
record date is fixed nor, subject to Section 1.06, more than 90 days before the
date on which the action requiring the determination will be taken; the transfer
books may not be closed for a period longer than 20 days; and, in the case of a
meeting of stockholders, the record date or the closing of the transfer books
shall be at least ten days before the date of the meeting.
SECTION 5.04. Stock Ledger. The Corporation shall maintain a
stock ledger which contains the name and address of each stockholder and the
number of shares of stock of each class which the stockholder holds. The stock
ledger may be in written form or in any other form which can be converted within
a reasonable time into written form for visual inspection. The original or a
duplicate of the stock ledger shall be kept at the offices of a transfer agent
for the particular class or series of stock, or, if none, at the principal
office in the State of Maryland or the principal executive offices of the
Corporation.
SECTION 5.05. Record Owners. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and other distributions, and to vote or
consent as such owner, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise required by the laws of the State of Maryland.
SECTION 5.06. Lost Stock Certificates. The Board of Directors of
the corporation may determine the conditions for issuing a new stock certificate
in place of one which is alleged to have been lost, stolen, or destroyed, or the
Board of Directors may delegate such power to any officer or officers of the
Corporation. In their discretion, the Board of Directors or such officer or
officers may refuse to issue such new certificate save upon the order of some
court having jurisdiction in the premises.
ARTICLE VI.
FINANCE
SECTION 6.01. Checks, Drafts, Etc. All checks, drafts and orders
for the payment of money, notes and other evidences of indebtedness, issued in
the name of the
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Corporation, shall, unless otherwise provided by resolution of the Board of
Directors, be signed by the President, a Vice-President or an Assistant
Vice-President and countersigned by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary.
SECTION 6.02. Annual Statement of Affairs. The President or the
Controller shall prepare annually a full and correct statement of the affairs of
the Corporation, to include a balance sheet and a financial statement of
operations for the preceding fiscal year. The statement of affairs shall be
placed on file at the Corporation's principal office within 120 days after the
end of the fiscal year.
SECTION 6.03. Fiscal Year. The fiscal year of the Corporation
shall be the twelve calendar month period ending September 30 in each year,
unless otherwise provided by the Board of Directors.
SECTION 6.04. Dividends. If declared by the Board of Directors
at any meeting thereof, the Corporation may pay dividends on its shares in cash,
property, or in shares of the capital stock of the Corporation, unless such
dividend is contrary to law or to a restriction contained in the Charter.
ARTICLE VII.
SUNDRY PROVISIONS
SECTION 7.01. Books and Records. The Corporation shall keep
correct and complete books and records of its accounts and transactions and
minutes of the proceedings of its stockholders and Board of Directors and of any
executive or other committee when exercising any of the powers of the Board of
Directors. The books and records of the Corporation may be in written form or in
any other form which can be converted within a reasonable time into written form
for visual inspection. Minutes shall be recorded in written form but may be
maintained in the form of a reproduction. The original or a certified copy of
the By-Laws shall be kept at. the principal office of the Corporation.
SECTION 7.02. Corporate Seal. The Board of Directors shall
provide a suitable seal, bearing the name of the Corporation, which shall be in
the charge of the Secretary. The Board of Directors may authorize one or more
duplicate seals and provide for the custody thereof. If the Corporation is
required to place its corporate seal to a document,. it is sufficient to meet
the requirement of any law, rule, or
-12-
<PAGE>
regulation relating to a corporate seal to place the word "Seal" adjacent to the
signature of the person authorized to sign the document on behalf of the
Corporation.
SECTION 7.03. Bonds. The Board of Directors may require any
officer, agent or employee of the Corporation to give a bond to the Corporation,
conditioned upon the faithful discharge of his duties, with one or more sureties
and in such amount as may be satisfactory to the Board of Directors.
SECTION 7.04. Voting Upon Shares in Other Corporations. Stock of
other corporations or associations, registered in the name of the Corporation,
may be voted by the President, a Vice-President, or a proxy appointed by either
of them. The Board of Directors, however, may by resolution appoint some other
person to vote such shares, in which case such person shall be entitled to vote
such shares upon the production of a certified copy of such resolution.
SECTION 7.05. Notices. Any notice or other document which is
required by these By-Laws to be mailed shall be deposited in the United States
mails or sent by overnight courier, postage prepaid, or sent by facsimile
transmission.
SECTION 7.06. Execution of Documents. A person who holds more
than one office in the Corporation may not act in more than one capacity to
execute, acknowledge, or verify an instrument required by law to be executed,
acknowledged, or verified by more than one officer.
SECTION 7.07 Federal Supremacy. If at a time when the
Corporation is registered as an investment company under the 1940 Act, any of
the foregoing provisions of these By-Laws or of the Charter or the law of State
of Maryland shall conflict or be inconsistent with any applicable provision of
the 1940 Act, the applicable provision of the 1940 Act shall be controlling and
the Corporation shall not take any action which is in conflict or inconsistent
therewith.
SECTION 7.08 Determination Binding. Any determination made in
good faith, so far as accounting matters are involved, in accordance with
accepted accounting practice by or pursuant to the direction of the Board of
Directors: (i) as to the amount of the assets, obligations or liabilities of the
Corporation; (ii) as to the amount of the net income of the Corporation from
dividends and interest for any period or amounts at any time legally available
for the payment of dividends; (iii) as to the amount of any reserves or charges
set up and the propriety thereof; (iv) as to the time of or purpose for creating
any reserves or charges or as to the use,
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<PAGE>
alteration or cancellation of any reserves or charges (whether or not any
obligation or liability for which such reserves or charges shall have been
created shall have been paid or discharged or shall be then or thereafter
required to be paid or discharged); (v) as to the closing price or closing bid
or asked price or current bid or asked price of any security owned or held by
the Corporation; (vi) as to the market value of any security or fair value of
any other asset owned by the Corporation; (vii) as to the number of shares of
capital stock of the Corporation outstanding or deemed to be outstanding; (viii)
as to the impracticability or impossibility of liquidating securities in orderly
fashion; (ix) as to any other matters relating to the issue, sale, repurchase
and/or other acquisition or disposition of securities or shares of the capital
stock of the Corporation; and (x) as to whether any transaction constitutes a
purchase of any securities on margin" a sale of any securities "short," or any
underwriting of the sale of, or a participation in any underwriting or selling
group in connection with the public distribution of, any securities; shall be
final upon the Corporation and all holders of shares of its capital stock,
subject to any contrary determinations pursuant to appropriate judicial
proceedings.
SECTION 7.09. Amendments. Subject to the special provisions of
Section 2.02, (a) any and all provisions of these By-Laws may be altered or
repealed and new by-laws may be adopted at any annual meeting of the
stockholders, or at any special meeting called for that purpose, and (b) the
Board of Directors shall have the power, at any regular or special meeting
thereof, to make and adopt new by-laws, or to amend, alter or repeal any of the
By-Laws of the Corporation.
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INVESTMENT MANAGEMENT AGREEMENT
THIS AGREEMENT, dated and effective as of this 1st day of
October, 1993, is made and entered into by and between BAILARD, BIEHL & KAISER
INTERNATIONAL FUND GROUP, INC., a Maryland corporation (hereinafter called the
"Company"), and BAILARD, BIEHL & KAISER, INC., a California corporation
(hereinafter called the "Adviser").
WHEREAS, the Company is engaged in business as an open-end
management investment company and is so registered under the Investment Company
Act of 1940 (the "1940 Act"); and
WHEREAS, the Adviser is engaged principally in the business of
rendering investment management services and is so registered under the
Investment Advisers Act of 1940; and
WHEREAS, the Company is authorized to issue shares of capital
stock in separate series (the "Series") with each Series representing interests
in a separate portfolio of securities and other assets; and
WHEREAS, the Company is currently offering shares in two
series, the Bailard, Biehl & Kaiser International Fixed-Income Fund (the
"Fixed-Income Fund") and the Bailard, Biehl & Kaiser International Equity Fund
(the "Equity Fund") (collectively, the "Initial Series"); and
WHEREAS, the Company desires to retain the Adviser to render
investment management services as described hereunder with respect to the
Initial Series and the Adviser is willing so to do.
NOW, THEREFORE, WITNESSETH: That it is hereby agreed between
the parties hereto as follows:
1. Appointment of the Adviser.
(a) Initial Series. The Company hereby appoints the Adviser to
act as adviser and investment manager to the Initial Series for the period and
on the terms herein set forth. The Adviser accepts such appointment and agrees
to render the services herein set forth, for the compensation herein provided.
(b) Additional Series. In the event that the Company
establishes one or more series of shares other than the Initial Series with
respect to which it desires to retain the Adviser to render management and
investment advisory services hereunder, it shall so notify
<PAGE>
the Adviser in writing, indicating the advisory fee which will be payable with
respect to the additional series of shares. If the Adviser is willing to render
such services, it shall so notify the Company in writing, whereupon such series
of shares shall become a Series hereunder.
The Adviser shall, for all purposes herein, be deemed an
independent contractor and not an agent of the Company.
2. Investment Management Services of the Adviser.
(a) Subject to the supervision of the Company's Board of
Directors ("Board"), the Adviser agrees to provide supervision of the portfolio
of each Series and to determine what securities or other property shall be
purchased or sold by each Series, giving due consideration to the policies of
each Series as expressed in the Company's Articles of Incorporation, By-laws,
Form N-1A Registration Statement ("Registration Statement") under the 1940 Act
and under the Securities Act of 1933 (the "1933 Act"), and prospectus as in use
from time to time, as well as to the factors affecting the status of each Series
as a "regulated investment company" under the Internal Revenue Code of 1986. In
its duties hereunder, the Adviser shall further be bound by any and all
determinations by the Board relating to investment policy, which determinations
shall in writing be communicated to the Adviser.
(b) Except with respect to assets placed with a Sub-Adviser as
provided hereinbelow, the Adviser shall provide adequate facilities and
qualified personnel for the placement of, and shall place orders for the
purchase, or other acquisition, and sale, or other disposition, of portfolio
securities for each Series. With respect to such transactions, the Adviser,
subject to such direction as may be furnished from time to time by the Board,
shall endeavor as the primary objective to obtain the most favorable prices and
executions of orders. Subject to such primary objective, the Adviser may place
orders with brokerage firms which have sold shares of any Series. The Adviser is
specifically authorized to allocate portfolio brokerage and portfolio principal
transactions business to firms that provide brokerage and research services or
facilities and to cause the Series to pay a member of a securities exchange, or
any other securities broker or dealer, an amount of commission for effecting a
securities transaction in excess of the amount of commission another member of
an exchange, broker or dealer would have charged for effecting that transaction,
if the Adviser determines in good faith that such amount of commission is
reasonable in relation to the commissions paid by other similarly situated
investors and the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the overall responsibilities of the Adviser with respect to the
Series and other accounts over which the Adviser has investment discretion. The
authority to pay higher brokerage commissions, as provided in the preceding
sentence, shall not apply with respect to portfolio transactions the commission
rates for which are fixed, rather than negotiated. The receipt by the Adviser of
any such brokerage and research services shall not be deemed to give rise to any
requirement for abatement of the compensation payable to the
2
<PAGE>
Adviser pursuant to Section 4 hereof.
(c) On occasions when the Adviser deems the purchase or sale
of a security or other asset to be in the best interests of a Series as well as
other clients of the Adviser, the Adviser, to the extent permitted by applicable
laws and regulations, may aggregate the securities or other assets to be so sold
or purchased when the Adviser believes that to do so will be in the best
interests of the Series. In such event, allocation of the securities or other
assets so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Adviser in the manner the Adviser considers to
be the most equitable and consistent with its fiduciary obligations to the
Series and to such other clients.
3. Administrative Duties of the Adviser . The Adviser will
administer the affairs of each Series subject to the supervision of the Board
and the following terms, and provided that nothing herein contained shall be
deemed to relieve or deprive the Board of its responsibility for control of the
conduct of the affairs of the Company.
(a) (i) The Adviser will supervise all aspects of the
operations of each Series, including the oversight of transfer agency,
custodial, pricing and accounting services, except as hereinafter set
forth. The Adviser will oversee the computation by unaffiliated service
providers of the net asset value and the net income of each Series as
described in the currently effective Registration Statement, or as more
frequently as the Board shall request such computation.
(ii) The Adviser will provide the Company with such
corporate, administrative and clerical personnel (including officers of
the Company) and services as are reasonably deemed necessary or
advisable by the Board.
(b) The Adviser will oversee the maintenance of all books and
records of the Company, and will furnish the Board with such periodic and
special reports as the Board reasonably may request. In compliance with the
requirements of Rule 3la-3 under the 1940 Act, the Adviser hereby agrees that
all records which it maintains for the Company are the property of the Company,
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
any records which it maintains for the Company and which are required to be
maintained by Rule 31a-1 under the 1940 Act, and further agrees to surrender
promptly to the Company any records which it maintains for the Company upon
request by the Company.
(c) The Adviser will arrange, but not pay, for the periodic
preparation, updating, filing and dissemination (as applicable) of each Series'
prospectus, statement of additional information, proxy material, tax returns and
required reports with or to the Series' shareholders, the Securities and
Exchange Commission and other appropriate federal or state regulatory
authorities.
(d) The Adviser will provide the Company with, or obtain for
it, adequate
3
<PAGE>
office space and all necessary office equipment and services, including
telephone service, utilities, stationery supplies and similar items.
4. Investment Management Fees.
(a) Each Series shall pay to the Adviser on or before the
tenth (10th) day of each month, as compensation for the services rendered by the
Adviser during the preceding month, an amount to be computed by applying to the
average daily net asset value of such Series the applicable annual rates set
forth on Appendix A hereto.
(b) The fees on Appendix A shall be computed and accrued daily
at one three-hundred-sixty-fifth (1/365th) of the applicable rates set forth
therein. The net asset value of each Series shall be determined in the manner
set forth in the Registration Statement at the 4:00 p.m. closing of the New York
Stock Exchange on each day the New York Stock Exchange is open. In the event of
termination other than at the end of a calendar month, the monthly fee shall be
prorated for the portion of the month prior to termination and paid on or before
the tenth (10th) day subsequent to termination.
(c) The Adviser agrees to reduce the investment management fee
payable to it under this Agreement by the amount by which the expenses of the
Company for any fiscal year of the Company shall exceed the most stringent
limits prescribed by any state in which the Company shares are offered for sale.
The expense limitation commitment of the Adviser is subject to the qualification
that if, as a result of so fully reimbursing the Company for such excess
expenses, less than 90% of the Company's gross income would be derived from
qualifying sources described in Section 851(b)(2) of the Internal Revenue Code
of 1986 or any successor provisions (which include dividends, interest, payments
with respect to securities loans and gains from the sale of stock, certain other
securities or foreign currencies and certain other income), treating as income
for this purpose any expense reimbursement, then the Adviser will reimburse the
Company only in such an amount as will not result in less than 90% of the
Company's gross income being received from qualifying sources and any
unreimbursed portion of the excess will be carried forward for a period of up to
three fiscal years. Costs incurred in connection with the purchase or sale of
portfolio securities, including brokerage fees and commissions, which are
capitalized in accordance with generally accepted accounting principles
applicable to investment companies, shall be accounted for as capital items and
not as expenses. Expenses shall be excluded from the calculation of the
applicable expense limitations to the fullest extent authorized by applicable
law. Proper accruals shall be made by the Company for any projected reduction of
investment management fees hereunder and corresponding amounts shall be withheld
from the fees paid by the Company to the Adviser, subject to recovery by the
Adviser of any amounts withheld in excess of the actual reduction for any fiscal
year. Any additional reduction computed at the end of the fiscal year shall be
deducted from the fee for the last month of such fiscal year (or thereupon
promptly paid by the Adviser).
4
<PAGE>
(e) The above provision in subsection (d) with respect to
expense limitation shall be calculated and administered separately with respect
to each Series, as opposed to the Company in the aggregate, if and to the extent
so required by state securities authorities.
5. Expenses.
(a) The Adviser assumes and shall pay for the cost of
maintaining the staff and personnel necessary to perform its obligations under
this Agreement, and shall, at its own expense, provide the office space,
equipment and facilities which it is obligated to provide under Section 2 and
Section 3 hereof. Except as otherwise expressly provided herein, the Company
assumes and shall pay or cause to be paid all expenses of the Company,
including, without limitation: (a) all costs and expenses incident to (i) the
registration of the Company under the 1940 Act or (ii) any public offering of
capital stock ("Shares") of the Series, for cash or otherwise, including costs
and expenses relating to the registration of Shares under the Securities Act of
1933 (the "1933 Act"), the qualification of Shares under state securities laws,
the printing or other reproduction and distribution of any registration
statement (and all amendments thereto) under the 1933 Act, the preliminary and
final prospectuses included therein, and any other necessary documents incident
to such public offering (other than costs and expenses incident to the
reproduction and distribution of prospectuses to prospective new investors and
the advertising of Shares); (b) the charges and expenses of any custodian
appointed by the Company for the safekeeping of its cash, portfolio securities
and other property; (c) the investment management fees payable hereunder to the
Adviser; (d) the charges and expenses of auditors and bookkeepers; (e) the
charges and expenses of any Share transfer, dividend agent or registrar
appointed by the Company; (f) broker's commissions chargeable to the Company in
connection with portfolio securities transactions to which a Series is a party;
(g) all taxes, including securities issuance and transfer taxes, and
organizational fees payable by the Company to Federal, state or other
governmental agencies; (h) the costs and expenses of engraving or printing of
certificates representing Shares; (i) fees involved in registering and
maintaining registrations of the Company and of Shares with the Securities and
Exchange Commission and various states and other jurisdictions; j) all expenses
of meetings of shareholders and the Board of Directors of the Company and of
preparing, printing and mailing proxy statements and quarterly, semiannual,
annual and any other reports to shareholders; (k) fees and travel expenses of
Board members and officers of the Company; l) all fees and expenses incident to
any dividend or distribution reinvestment program; (m) charges and expenses of
legal counsel in connection with matters relating to the Company, including
without limitation, legal services rendered in connection with the Company's
organization, financial structure and relations with its shareholders, issuance
of Shares, and registrations and qualifications of Shares under Federal, state
and other laws; (n) association dues; (o) interest payable on Series borrowings;
(p) fees and expenses of obtaining any exemptions from any provisions of any
Federal, state or other securities laws; (q) fees or expenses incurred incident
to the obtaining of any rulings of, or advice from, the U.S. Internal Revenue
Service or any other taxing authority incident to the taxation of a Series or
its shareholders; (r) costs of information obtained from sources
5
<PAGE>
other than the Adviser or its affiliated persons (as defined in the 1940 Act)
relating to the pricing and valuation of securities; and (s) postage.
(b) The payment or assumption by the Adviser of any expense of
the Company or any Series that the Adviser is not required by this Agreement to
pay or assume shall not obligate the Adviser to pay or assume the same or any
similar expense of the Company or any Series on any subsequent occasion.
(c) The Company will reimburse the Adviser for any expenses of
the Company paid, but not assumed by, the Adviser from time to time upon
presentation to the Company of an itemized schedule of such expenses.
6. Other Business of the Adviser . Nothing contained in this
Agreement shall be construed to prohibit the Adviser from performing investment
advisory, management, or distribution services for other investment companies
and other persons or companies, or to prohibit affiliates of the Adviser from
engaging in such businesses or in other related or unrelated businesses.
7. Indemnification . The Company agrees (i) not to hold the
Adviser or any of its officers or employees liable for, and (ii) to indemnify or
insure the Adviser and its officers and employees ("Indemnified Parties")
against, any costs and liabilities the Indemnified Parties may incur as a result
of any claim against the Indemnified Parties in the good faith exercise of their
powers hereunder or arising out of an act or omission of the Company's custodian
of assets, or of any broker or agent selected by the Adviser in a commercially
reasonable manner, excepting matters as to which the Indemnified Parties shall
be finally adjudged to have been guilty of willful misfeasance, bad faith, gross
negligence, reckless disregard of duty or breach of fiduciary duty (all as used
in the 1940 Act) or otherwise in violation of applicable law.
8. Term of Agreement .
(a) This Agreement shall become effective with respect to the
initial Series on the date hereof (the "Effective Date") and, with respect to
any additional Series, on the date of receipt by the Company of notice from the
Adviser in accordance with Section l(b) hereof that the Adviser is willing to
serve as Adviser with respect to such Series. Unless terminated as herein
provided, this Agreement shall remain in full force and effect until December
31, 1994 with respect to the Initial Series and, with respect to each additional
Series, until the December 31 following the first anniversary of the date on
which such Series becomes a Series hereunder, and shall continue in full force
and effect for periods of one year thereafter with respect to each Series so
long as such continuance with respect to any such Series is approved at least
annually (i) by either the Board or by a vote of a majority (as defined in the
1940 Act) of the outstanding voting securities of such Series, and (ii) in
either event by the vote of a majority of the Directors of the Company who are
not
6
<PAGE>
parties to this Agreement or "interested persons" (as defined in the 1940 Act)
of any such party, cast in person at a meeting called for the purpose of voting
on such approval.
Any approval of this Agreement by a majority (as defined in
the 1940 Act) of the outstanding voting securities of any Series shall be
effective to continue this Agreement with respect to any such Series
notwithstanding (i) that this Agreement has not been approved by the holders of
a majority (as defined in the 1940 Act) of the outstanding voting securities of
any other Series not affected thereby, and (ii) that this Agreement has not been
approved by the vote of a majority (as defined in the 1940 Act) of the
outstanding voting securities of the Company, unless such approval shall be
required by any applicable law or otherwise.
(b) This Agreement may be terminated with respect to any
Series at any time, without payment of any penalty, by the Board or by the vote
of a majority (as defined in the 1940 Act) of the outstanding voting securities
of the affected Series, on 60 days written notice to the Adviser, or by the
Adviser on 180 days written notice to the Company.
(c) This Agreement shall automatically and immediately
terminate in the event of its assignment.
9. Delegation of the Adviser's Duties as Investment Manager .
With respect to one or more of the Series, the Adviser may enter into one or
more agreements ("Sub-Advisory Contract") with a sub-adviser (a "Sub-Adviser")
in which the Adviser delegates to such Sub-Adviser the performance of any or all
of the services specified in Sections 2 and 3 of this Agreement, provided that:
(i) each Sub-Advisory Contract imposes on the Sub-Adviser bound thereby all the
duties and conditions to which the Adviser is subject with respect to the
covered services under Sections 2 and 3 of this Agreement; (ii) each
Sub-Advisory Contract meets all requirements of the 1940 Act and rules
thereunder; and (iii) the Adviser shall not enter into a Sub-Advisory Contract
unless it is approved by the Board and the shareholders of the affected Series,
if required by the 1940 Act, prior to implementation.
10. Miscellaneous Matters.
(a) This Agreement supersedes any prior agreement between the
parties relating to the subject matter hereof, including, without limitation,
the Investment Management Agreement dated August 1, 1990.
(b) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
(c) All notices or communications hereunder shall be in
writing and, if sent to the Adviser shall be mailed by certified or registered
mail, or delivered, faxed, or
7
<PAGE>
telegraphed and confirmed in writing to the Adviser at 2755 Campus Drive, San
Mateo, California 94403, Att'n: [Burnice E. Sparks], and if to the Company shall
be mailed by certified or registered mail, or delivered, faxed, or telegraphed
and confirmed in writing to the Company at 2755 Campus Drive, San Mateo,
California 94403, Att'n: Tina Thomas, with a copy to Orrick, Herrington &
Sutcliffe, 400 Sansome Street, San Francisco, California 94111, Att'n: Andre W.
Brewster, Esq.
11. Choice of Law. This Agreement shall be construed in
accordance with the laws of the State of California and the 1940 Act. To the
extent that the applicable laws of the State of California conflict with the
applicable provisions of the 1940 Act, the latter shall control.
12. Interpretation. This Agreement has been negotiated at
arm's length and between persons sophisticated and knowledgeable in the matters
dealt with in this Agreement. Accordingly, any rule of law (including California
Civil Code section 1654) or legal decision that would require interpretation of
any ambiguities in this Agreement against the party that has drafted it is not
applicable and is waived. The provisions of this Agreement shall be interpreted
in a reasonable manner to effect the purpose of the parties and this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in duplicate originals by their officers thereunto duly
authorized as of the date first above written.
BAILARD, BIEHL & KAISER BAILARD, BIEHL & KAISER, INC.
INTERNATIONAL FUND GROUP, INC.
By /s/ Burnice E. Sparks By /s/ P. M. Hill
---------------------------------- ---------------------------------
President President
Burnice E. Sparks, Jr. Peter M. Hill
- ------------------------------------ -----------------------------------
(Print Name) (Print Name)
8
<PAGE>
APPENDIX A
to Investment Management Agreement
Equity Fund: .95% of average daily net assets
- -----------
Fixed-Income Fund: .75% of average daily net assets
- -----------------
A-1
<PAGE>
BAILARD, BIEHL & KAISER
[GRAPHIC OMITTED]
September 5, 1997
950 Tower Lane, Suite 1900
Foster City, CA 94404-2131
Telephone 415 571 5800
Facsimile 415 573 7128
Bailard, Biehl & Kaiser International Fund Group, Inc.
950 Tower Lane, Ste. #1900
Foster City, CA 94404-2131
Re: Investment Management Agreement
Ladies and Gentlemen:
Reference is made to the Investment Management Agreement (the
"Agreement") between Bailard,. Biehl & Kaiser, Inc. ("BB&K") and the Bailard,
Biehl & Kaiser International Fund Group, Inc., (the "Client") dated October 1,
1993. With reference to Section 7 and any other provisions of the Agreement
which purport to indemnify or hold harmless BB&K or its officers or employees,
BB&K represents and warrants to Client, and Client acknowledges, that Client
does not waive any of its rights of action at common law or under the federal
and state securities laws.
Very truly yours,
Bailard, Biehl & Kaiser, Inc.
By: /s/ Burnice E. Sparks
--------------------------------
Title: President
-----------------------------
Acknowledged:
Bailard, Biehl & Kaiser International Fund Group, Inc.
By: /s/ P. M. Hill
-------------------------------------------
Title: Chairman
----------------------------------------
DISTRIBUTION AGREEMENT
----------------------
This Agreement, dated as of October 1, 1993, by and between
Bailard, Biehl & Kaiser International Fund Group, Inc., a Maryland corporation
(the "Company"), on behalf of its series, the Bailard, Biehl & Kaiser
International Equity Fund and the Bailard, Biehl & Kaiser International
Fixed-Income Fund (each a "Fund" and together the "Funds"), and BB&K Fund
Services, Inc., a California corporation (the "Distributor"),
RECITALS
A. The Company is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act").
B. The Distributor is a broker-dealer licensed to act as a
distributor of securities, is engaged in the business of selling and
distributing securities, including investment company securities, and has the
ability to create appropriate and effective sales literature, advertising and
other sales and promotional aids.
C. The Company desires to retain the Distributor to render
such services to the Funds in the manner and on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual and dependent covenants set forth herein, the Company and the Distributor
agree as follows:
AGREEMENT
1. Appointment of Distributor. The Company hereby appoints the
Distributor as its exclusive agent to act as principal underwriter and
distributor of the shares of common stock, $0.0001 par value, of the Funds (the
"Shares") during the term of this Agreement.
2. Acceptance of Appointment. The Distributor hereby accepts
such appointment and agrees to use its best efforts lawfully and properly to
promote the sale of the Shares; provided, however, that the Distributor may
suspend its efforts when, in its judgment, sales of Shares are not commercially
reasonable. The Distributor agrees that either Fund may withdraw the offering of
the Shares (a) at any time with the consent of the Distributor or (b) without
such consent when so required by the provisions of any statute, rule, regulation
or order of any governmental body or administrative agency or by order of any
court.
3. Term of Agreement. Unless sooner terminated as provided
herein, this Agreement shall be in effect for a period of two years from the
date hereof and shall continue from year to year thereafter, with respect to
each Fund, as long as it is specifically approved at least annually (a) by
either (i) the Board of Directors of the Company or (ii) the vote of a majority
of the outstanding voting securities (as defined in the 1940 Act) of that
<PAGE>
Fund and (b) by the vote of a majority of the directors of the Company who are
not parties to this Agreement or interested persons (as defined in the 1940 Act)
of any such party at a meeting called for the purpose of voting on such
continuance.
4. Duties of the Company.
(a) The Company shall use its best efforts:
(i) to maintain its registration as an open-end
management investment company under the 1940 Act and to comply
with the provisions of the 1940 Act and the rules and
regulations thereunder;
(ii) to keep authorized and registered under the
Securities Act of 1933, as amended (the "1933 Act"),
sufficient Shares to meet the reasonable requirements of the
Distributor; and
(iii) to qualify the Shares for sale and to keep
effective and renew such permits and authorizations as may be
required for the sale thereof in all jurisdictions, as the
Distributor may reasonably request.
(b) The Company shall not arbitrarily or without reasonable
cause refuse to accept or confirm orders for the purchase of Shares obtained by
the Distributor as agent of the Company and submitted by the Distributor to the
Company. The Company shall confirm each order upon receipt of a duly executed
Purchase Application in the form contained in the prospectus of each Fund, as
amended and supplemented from time to time (the "Prospectus").
(c) The Company shall not during the term of this Agreement
offer any Shares for sale through any person (as defined in Sections 2(a)(28)
and 2(a)(8) of the 1940 Act) other than the Distributor, although the Company
reserves the right to sell Shares directly. However, in the event the
Distributor is unable to continue to distribute or sell Shares either generally
or in specific jurisdictions, the Company may make arrangements for the offer
and sale of Shares generally or within the jurisdiction or jurisdictions in
which distribution or sale thereof by the Distributor has been prevented;
provided that, if the Distributor has removed all material obstacles to resuming
the offer and sale generally or within such jurisdictions within 90 days from
the date it becomes unable to continue such distribution or sale, then the right
of the Company to distribute Shares through persons other than the Distributor
shall be extinguished, subject only to the provisions of Section 2 hereof.
5. Duties of the Distributor.
(a) The Distributor is, and shall use its best efforts to
continue to be, a member in good standing of the National Association of
Securities Dealers, Inc. ("NASD"), a broker-dealer registered with the
Securities and Exchange Commission under the Securities Exchange Act of 1934 and
a broker-dealer licensed in the jurisdictions in which its activities on behalf
of the Funds require it to be so licensed.
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<PAGE>
(b) The Distributor shall not purchase any Shares except from
or on behalf of the Funds as agent.
(c) The Distributor shall not directly or indirectly withhold
orders for the purchase of Shares, purchase Shares in anticipation of orders or
accept conditional orders.
(d) The Distributor shall, to the extent it deems necessary in
its sole discretion, prepare, print and distribute advertising and sales
literature relating to the Funds and the Shares and shall pay all costs incurred
in connection therewith, including related travel, telephone and overhead
expenses. Any dissemination by the Distributor of such advertising and sales
literature shall be in compliance with applicable Federal and state securities
laws and regulations. The Distributor shall provide copies of such advertising
and sales literature to the Company in order to permit the Company to timely
file such advertising and sales literature with the Securities and Exchange
Commission, the NASD and any other regulatory authorities, as may be required.
The Distributor shall not use any such material to which the Company reasonably
and promptly objects.
(e) Except with respect to sales and repurchases of Shares,
the Distributor shall act as principal in all matters relating to promotion of
the Funds and shall enter into all of its engagements, agreements and contracts
as principal on its own account.
(f) The Distributor shall perform its duties and obligations
hereunder in a manner that complies with the terms of the registration statement
of the Company filed with the Securities and Exchange Commission, as amended or
supplemented from time to time (the "Registration Statement"), the Articles of
Incorporation and the By-Laws of the Company, the requirements of the 1940 Act
and the securities laws and regulations of the United States and of the
jurisdictions in which the Distributor does business or offers Shares on behalf
of the Funds, and shall conduct its affairs in accordance with the Rules of Fair
Practice of the NASD. Unless otherwise expressly provided or authorized, the
Distributor shall have no authority to act for or represent the Company or the
Funds in any way, or otherwise be deemed an agent of the Company or the Funds.
(g) The Distributor shall maintain all books and records with
respect to the Funds required by subparagraph (d) of Rule 3la-1 under the 1940
Act.
(h) The services provided by the Distributor under this
Agreement are not exclusive, and the Distributor is free to engage in any other
business and may render services similar to those provided hereunder to other
issuers, including other investment companies.
6. Public Offering Price of Shares to be Maintained. The
Shares shall be offered and sold only at the public offering price described in
the Prospectus, which shall be the then current net asset value per Share (as
described in the Prospectus). Provisions of the Prospectus and the Purchase
Application contained therein pertaining to the public offering price are
specifically incorporated herein by reference.
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<PAGE>
7. Distributor's Compensation. The Distributor shall receive
no distribution fee, sales commission or other payment for its services
hereunder.
8. Indemnification .
(a) The Company shall indemnify and hold harmless the
Distributor (including for purposes of this Section 8(a), each person deemed to
be a controlling person of the Distributor) against any loss, liability, claim,
damage or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damage or expense and reasonable counsel
fees incurred in connection therewith), based upon the 1933 Act, the 1940 Act or
any state securities statute or at common law, on the ground that the
Registration Statement, or the Prospectus or Statement of Additional Information
contained therein, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, unless such statement or omission was made in reliance
upon, and in conformity with, written information furnished to the Company in
connection therewith by or on behalf of the Distributor. However, in no case
shall the Company indemnify the Distributor against any liability to which the
Distributor is subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of the reckless
disregard of its obligations and duties under this Agreement. The Company shall
not be liable to indemnify the Distributor pursuant to this Section 8(a) with
respect to any claim made against the Distributor unless the Distributor has
notified the Company in writing within a reasonable time after service upon it
of first legal process giving information about the nature of the claim, but
failure to notify the Company of any such claim shall not relieve it from any
liability that it may have to the Distributor otherwise than on account of the
indemnity agreement contained herein. The Company shall be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any such liability, but if the
Company elects to assume the defense, such defense shall be conducted by counsel
chosen by it and satisfactory to the Distributor. In the event the Company
elects to assume the defense of any such suit and retain such counsel, the
Distributor shall bear the fees and expenses of any additional counsel retained
by it. If the Company does not elect to assume the defense of any such suit, it
shall reimburse the Distributor for the reasonable fees and expenses of any
counsel retained by it. The Company shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of any of the Shares.
(b) The Distributor shall indemnify and hold harmless the
Company and each Fund (including for purposes of this Section 8(b) each person
deemed to be a controlling person of the Company or either Fund) against any
loss, liability, claim, damage or expense described in Section 8(a) hereof, but
only to the extent that any such loss, liability, claim, damage or expense
relates to material statements or omissions made in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
the Distributor for use in connection with the Registration Statement, the
Prospectus or the Statement of Additional Information as described in Section
8(a).
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<PAGE>
9. Termination. This Agreement may be terminated with respect
to each Fund at any time, without payment of any penalty, by the Board of
Directors of the Company or by the vote of a majority of the outstanding voting
securities (as defined in the 1940 Act) of such Fund on not more than 60 days'
nor less than 30 days' written notice to the Distributor, or by the Distributor
on like notice to the Company. In the absence of the issuance of an order by the
Securities and Exchange Commission providing an exemption from the provisions of
Section 15(b) of the 1940 Act, this Agreement shall automatically terminate in
the event of its assignment (as defined in the 1940 Act).
10. Other Provisions.
(a) This Agreement shall not be construed as authorizing any
broker-dealer or other person (other than the Distributor) to act as agent of
any of the Company, the Funds or the Distributor.
(b) All records that the Distributor maintains for the Funds
are the property of the Company, and the Distributor shall surrender promptly to
the Company any of such records upon the Company's request. The Distributor will
preserve for the periods prescribed by Rule 3la-2 under the 1940 Act any such
records as are required to be maintained by it pursuant to this Agreement.
(c) The obligations assumed by the Company pursuant to this
Agreement with respect to each Fund shall be limited in all cases to the assets
of such Fund, and neither the Distributor nor any other person shall be entitled
to seek satisfaction of any such obligation from the assets of the other Fund.
(d) This Agreement shall be governed by the laws of the State
of California and the applicable provisions of the 1940 Act.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers duly authorized as of the day and
year first above written.
BAILARD, BIEHL & KAISER
INTERNATIONAL FUND GROUP, INC.
By: /s/ P. M. Hill
-------------------------------------
Title: Chairman
----------------------------------
BB&K FUND SERVICES, INC.
By: /s/ Tina Thomas
-------------------------------------
Title: Treasurer
----------------------------------
6
CUSTODIAN AGREEMENT
AGREEMENT made this 12th day of June, 1990, between BAILARD, BIEHL &
KAISER INTERNATIONAL FUND GROUP, INC. (the "Company") on behalf of the Bailard,
Biehl. & Kaiser International Equity Fund and the Bailard, Biehl & Kaiser
International Fixed-Income Fund portfolio that may be designated from time (the
"Funds"), and Brown Brothers Harriman and any other separate to time by the
Company & Co. (the "Custodian")
WITNESSETH: That in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The Company hereby employs and appoints the Custodian as a custodian
for the term and Subject to the provisions of this Agreement. The Custodian
shall not be under any duty or obligation to require the Company to deliver to
it any securities or funds owned by the Company and shall have no responsibility
or liability for or on account of securities or funds not so delivered. The
Company will deposit with the Custodian copies of the Articles of Incorporation
and By-Laws (or comparable documents) of the Company arid all amendments
thereto, and copies of such votes and other proceedings of the Company as may be
necessary for or convenient to the Custodian in the performance of its duties.
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2. Except for-securities and funds held by subcustodians appointed
pursuant to the provisions of Section 3 hereof, the Custodian shall have and
perform the following powers and duties:
A. Safekeeping - To keep safely the securities of each Fund that have
been delivered to the Custodian and from time to time to receive delivery of
securities for safekeeping.
B. Manner of Holding Securities - To hold securities of each Fund (1)
by physical possession of the share certificates or other instruments
representing such securities in registered or bearer form, or (2) in book-entry
form by a Securities System (as said term is defined in Section 2U).
C. Registered Name; Nominee - To hold registered securities of each
Fund (1) in the name or any nominee name of the Custodian or the Fund, or in the
name or any nominee name of any agent appointed pursuant to Section 6E, or (2)
in street certificate form, so-called, and in any case with or without any
indication of fiduciary capacity.
D. Purchases - Upon receipt of Proper Instructions, as defined in
Section X on Page 15, insofar as funds are available for the purpose, to pay for
and receive securities purchased for the account of the Fund, payment being made
only upon receipt of the securities (1) by the Custodian, or (2) by a clearing
corporation of a national securities exchange of which the Custodian is a
member, (3) by a Securities System or (4) by a Subcustodian. However, (i) in the
case of repurchase agreements
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entered into by the Fund, the Custodian may release funds to a Securities System
or to a Subcustodian prior to the receipt of advice from the Securities System
or Subcustodian that the securities underlying such repurchase agreement have
been transferred by book entry into the Account (as defined in Section 2U) of
the Custodian maintained with such Securities System or Subcustodian, so long as
the payment instructions to such Securities System or Subcustodian include a
requirement that delivery is only against payment of securities, and (ii) in the
case of time deposits, call account deposits, currency deposits, and other
deposits, contracts or options pursuant to Sections 2L, 2M and 2N, the Custodian
may make payment therefor without receiving an instrument evidencing said
deposit so long as the payment instructions detail specific securities to be
acquired.
E. Exchanges - Upon receipt of Proper Instructions, to exchange
securities held by it for the account of a Fund for other securities in
connection with any reorganization, recapitalization, split-up of shares, change
of par value, conversion or other event, and to deposit any such securities in
accordance with the terms of any reorganization or protective plan. Without such
instructions, the Custodian may surrender securities in temporary form for
definitive securities, may surrender securities for transfer into a name or
nominee name as permitted in Section 2C, and may surrender securities for a
different number of certificates or instruments representing the
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<PAGE>
same number of shares or same principal amount of indebtedness, provided the
securities to be issued are to be delivered to the Custodian and further
provided Custodian shall at the time of surrendering securities or instruments
receive a receipt or other evidence of ownership thereof.
F. Sales of Securities - Upon receipt of Proper Instructions, to make
delivery of securities which have been sold for the account of a Fund, but only
against payment therefor (1) in cash, by a certified check, bank cashier's
check, bank credit, or bank wire transfer, or (2) by credit to the account of
the Custodian with a clearing corporation of a national securities exchange of
which the Custodian is a member, or (3) by credit to the account of the
Custodian or an Agent of the Custodian with a Securities System.
G. Depositary Receipts - Upon receipt of Proper Instructions, to
instruct a subcustodian appointed pursuant to Section 3 hereof (a
"Subcustodian") or an agent of the Custodian appointed pursuant to Section 6E
hereof (an "Agent") to surrender securities to the depositary used by an issuer
of American Depositary Receipts or International Depositary Receipts
(hereinafter collectively referred to as "ADRs") for such securities against a
written receipt therefor adequately describing such securities and written
evidence satisfactory to the Subcustodian or Agent that the depositary has
acknowledged receipt of instructions to issue with respect to such securities
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<PAGE>
ADRs in the name of the Custodian, or a nominee of the Custodian, for delivery
to the Custodian in Boston, Massachusetts, or at such other place as the
Custodian may from time to time designate.
Upon receipt of Proper Instructions, to surrender ADRs to the
issuer thereof against a written receipt therefor adequately describing the ADRs
surrendered and written evidence satisfactory to the Custodian that the issuer
of the ADRs has acknowledged receipt of instructions to cause its depositary to
deliver the securities underlying such ADRs to a Subcustodian or an Agent.
H. Exercise of Rights; Tender Offers - Upon timely receipt of Proper
Instructions, to deliver to the issuer or trustee thereof, or to the agent of
either, warrants, puts, calls, rights or similar securities for the purpose of
being exercised or sold, provided that the new securities and cash, if any,
acquired by such action are to be delivered to the Custodian, and, upon receipt
of Proper Instructions, to deposit securities upon invitations for tenders of
securities, provided that the consideration is to be paid or delivered or the
tendered securities are to be returned to the Custodian.
I. Stock Dividends, Rights, Etc. - To receive and collect all stock
dividends, rights and other items of like nature; and to deal with the same
pursuant to Proper Instructions relative thereto.
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<PAGE>
J. 0ptions - Upon receipt of Proper Instructions, to receive and retain
confirmations or other documents evidencing the purchase or writing of an option
on a security or securities index by the Fund; to deposit and maintain in a
segregated account, either physically or by book-entry in a Securities System,
securities subject to a covered call option written by the Fund; and to release
and./or transfer such securities or other assets only in accordance with a
notice or other communication evidencing the expiration, termination or exercise
of such covered option furnished by The Options Clearing Corporation, the
securities or options exchange on which such covered option is traded or such
other organi2ation as may be responsible for handling such options transactions.
K. Borrowings - Upon receipt of Proper Instructions, to deliver
securities of a Fund to lenders or their agents as collateral for borrowings
effected by the Fund, provided that such borrowed money is payable to or upon
the Custodian's order as Custodian for the Fund.
L. Demand Deposit Bank Accounts - To open and operate an account or
accounts in the name of a Fund on the Custodian's books subject only to draft or
order by the Custodian. All funds received by the Custodian from or for the
account of the Fund shall be deposited in said account(s). The responsibilities
of the Custodian to the Fund for deposits accepted on the Custodian's books
shall be that of a U. S. bank for a similar deposit.
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<PAGE>
If and when authorized by Proper Instructions, the Custodian may open
and operate an additional account(s) in such other banks or trust companies as
may be designated by a Fund in such instructions (any such bank or trust company
so designated by a Fund being referred to hereafter as a "Banking Institution"),
provided that such account(s) shall be in the name of the Custodian for account
of the Fund and subject only to the Custodian's draft or order. Such accounts
may be opened with Banking Institutions in the United States and in other
countries and may be denominated in either U. S. Dollars or other currencies as
the Fund may determine. All such deposits shall be deemed to be portfolio
securities of the Fund and accordingly the responsibility of the Custodian
therefor shall be the same as and no greater than the Custodian's responsibility
in respect of other portfolio securities of the Fund.
M. Interest Bearing Call or Time Deposits - To place interest bearing
fixed term and call deposits with such banks and in such amounts as a Fund may
authorize pursuant to Proper Instructions. Such deposits may be placed with the
Custodian or with Subcustodians or other Banking Institutions as the Fund may
determine. Deposits may be denominated in U. S. Dollars or other currencies and
need not be evidenced by the issuance or delivery of a certificate to the
Custodian, provided that the Custodian shall include in its record:3 with
respect to the assets of the Fund, appropriate notation as to the amount and
currency of each
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<PAGE>
such deposit, the accepting Banking Institution, and other appropriate details.
Such deposits, other than those placed with the Custodian, shall be deemed
portfolio securities of the Fund and the responsibilities of the Custodian
therefor shall be the same as those for demand deposit bank accounts placed with
other banks, as described in Section L of this agreement. The responsibility of
the Custodian for such deposits accepted on the Custodian's books shall be that
of a U. S. bank for a similar deposit.
N. Foreign Exchange Transactions - Pursuant to Proper Instructions, to
enter into foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf and for the account of a Fund.
Such transactions may be undertaken by the Custodian with such Banking
Institutions, including the Custodian and Subcustodian(s) as principals, as
approved and authorized by the Fund. Foreign exchange contracts and options
other than those executed with the Custodian, shall be deemed to be portfolio
securities of the Fund and the responsibilities of the Custodian therefor shall
be the same as those for demand deposit bank accounts placed with other banks as
described in Section 2-L of this agreement.
0. Futures Contracts - Upon receipt of Proper Instructions, to receive
and retain confirmations evidencing the purchase or sale of a futures contract
or an option on a futures contract by a Fund; to deposit and maintain in a
segregated account, for the
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<PAGE>
benefit of any futures commission, merchant or to pay to such futures commission
merchant, assets designated by the Fund as initial, maintenance or variation
"margin" deposits intended to secure the Fund's performance of its obligations
under any futures contracts purchased or sold or any options on futures
contracts written by the Fund, in accordance with the provisions of any
agreement or agreements among any of the Fund, the Custodian and such futures
commission merchant, designated to comply with the rules of the Commodity
Futures Trading Commission and/or any contract market, the Securities and
Exchange Commission or any similar organization or organizations, regarding such
margin deposits; and to release and/or transfer assets in such margin accounts
only in accordance with any such agreements or rules.
P. Stock Loans - Upon receipt of Proper Instructions, to deliver
securities of a Fund, in connection with loans of securities by the Fund, to the
borrower thereof upon the receipt of the cash collateral, if any, for such
borrowing. In the event U. S. Government securities are to be used as
collateral, the Custodian will not release the securities to be loaned until it
has received confirmation that such collateral has been delivered to the
Custodian. The Custodian and the Funds understand that the timing of receipt of
such confirmation will normally require that the delivery of securities to be
loaned will be made one day after receipt of the U. S. Government collateral.
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<PAGE>
Q. Collections - To collect, receive and deposit in said account or
accounts all income and other payments with respect to the securities held
hereunder, and to execute ownership and other certificates and affidavits for
all federal and state tax purposes in connection with receipt of income or other
payments with respect to securities of a Fund or in connection with transfer of
securities, and pursuant to Proper Instructions to take such other actions with
respect to collection or receipt of funds or transfer of securities which
involve an investment decision.
R. Dividends, Distributions and Redemptions - Upon receipt of Proper
Instructions from a Fund, or upon receipt of instructions from the Fund's
shareholder servicing agent or agent with comparable duties (the "Shareholder
Servicing Agent") (given by such person or persons and in such manner on behalf
of the Shareholder Servicing Agent as the Fund shall have authorized), the
Custodian shall release funds or securities to the Shareholder Servicing Agent
or otherwise apply funds or securities, insofar as available, for the payment of
dividends or other distributions to Fund shareholders. Upon receipt of Proper
Instructions from a Fund, or upon receipt of instructions from the Shareholder
Servicing Agent (given by such person or persons and in such manner on behalf of
the Shareholder Servicing Agent as the Fund shall have authorized), the
Custodian shall release funds or securities, insofar as available, to the
Shareholder
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<PAGE>
Servicing Agent or as such Agent shall otherwise instruct for payment to Fund
shareholders who have delivered to such Agent a request for repurchase or
redemption of their shares of capital stock of the Fund.
S. Proxies, Notices, Etc. - Promptly to deliver or mail to a Fund all
forms of proxies and all notices of meetings and any other notices or
announcements affecting or relating to securities owned by the Fund that are
received by the Custodian, and upon receipt of Proper Instructions, to execute
and deliver or cause its nominee to execute and deliver such proxies or other
authorizations as may be required. Neither the Custodian nor its nominee shall
vote upon any of such securities or execute any proxy to vote thereon or give
any consent or take any other action with respect thereto (except as otherwise
herein provided) unless ordered to do so by Proper Instructions.
T. Nondiscretionary Details - Without the necessity of express
authorization from a Fund, (1) to attend to all nondiscretionary details in
connection with the sale, exchange, substitution, purchase, transfer or other
dealings with securities, funds or other property of that Fund held by the
Custodian except as otherwise directed from time to time by the Directors of the
Company, and (2) to make payments to itself or others for minor expenses of
handling securities or other similar items relating to the Custodian's duties
under this Agreement, provided that all such payments shall be accounted for to
the Fund.
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<PAGE>
U. Bills - Upon receipt of Proper Instructions, to pay or cause to be
paid, insofar as funds are available for the purpose, bills, statements, or
other obligations of a Fund.
V. Deposit of Fund Assets in Securities Systems - The Custodian may
deposit and/or maintain securities owned by a Fund in (i) The Depository Trust
Company, (ii) any book-entry system as provided in Subpart 0 of Treasury
Circular No. 300, 31 CFR 306, Subpart B of 31 CFR Part 350, or the book-entry
regulations of federal agencies substantially in the form of Subpart 0, or (iii)
any other domestic clearing agency registered with the Securities and Exchange
Commission under Section 17A of the Securities Exchange Act of 1934 which acts
as a securities depository and whose use the Fund has previously approved in
writing (each of the foregoing being referred to in this Agreement as a
"Securities System"). Utilization of a Securities System shall be in accordance
with applicable Federal Reserve Board and Securities and Exchange Commission
rules and regulations, if any, and subject to the following provisions:
1) The Custodian may deposit and/or maintain Fund securities, either
directly or through one or more Agents appointed by the Custodian (provided that
any such agent shall be qualified to act as a custodian of the Fund pursuant to
the Investment Company Act of 1940 and the rules and regulations thereunder), in
a Securities System provided that such securities are represented in an account
("Account") of the Custodian or
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<PAGE>
such Agent in the Securities System which shall not include any assets of the
Custodian or Agent other than assets held as a fiduciary, custodian, or
otherwise for customers;
2) The records of the Custodian with respect to securities of a Fund
which are maintained in a Securities System shall identify by book-entry those
securities belonging to the Fund;
3) The Custodian shall pay for securities purchased for the account of
a Fund upon (i) receipt of advice from the Securities System that such
securities have been transferred to the Account, and (ii) the making of an entry
on the records of the Custodian to reflect such payment and transfer for the
account of that Fund. The Custodian shall Transfer securities sold for the
account of a Fund upon (i) receipt of advice from the Securities System that
payment for such securities has been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to reflect such transfer and
payment for the account of the Fund. Copies of all advices from the Securities
System of transfers of securities for the account of a Fund shall identify the
Fund, be maintained for that Fund by the Custodian or an Agent as referred to
above, and be provided to that Fund at its request. The Custodian shall furnish
a Fund confirmation of each transfer to or from the account of the Fund in the
form of a written advice or notice and shall furnish to the Fund copies of daily
transaction sheets reflecting each day's transactions in the Securities System
for the account of the Fund on the next business day;
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4) The Custodian shall provide a Fund with any report obtained by the
Custodian or any Agent as referred to above on the Securities System's
accounting system, internal accounting control and procedures for safeguarding
securities deposited in the Securities System; and the Custodian and such Agents
shall send to the Fund such reports on their own systems of internal accounting
control as the Fund may reasonably request from time to time.
5) At the written request of a Fund, the Custodian will terminate the
use of any such Securities System on behalf of the Fund as promptly as
practicable.
W. Other Transfers - Upon receipt of Proper Instructions, to deliver
securities, funds and other property of a Fund to a Subcustodian or another
custodian of the Fund; and, upon receipt of Proper Instructions, to make such
other disposition of securities, funds or other property of a Fund in a manner
other than or for purposes other than as enumerated elsewhere in this Agreement,
provided that the instructions relating to such disposition shall include a
statement of the purpose for which the delivery is to be made, the amount of
securities to be delivered and the name of the person or persons to whom
delivery is to be made..
X. Investment Limitations - In performing its duties generally, and
more particularly in connection with the purchase, sale and exchange of
securities made by or for a Fund, the
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<PAGE>
Custodian may assume,-unless and until notified in writing to the contrary that
Proper Instructions received by it are not in conflict with or in any way
contrary to any provisions of the Company's Articles of Incorporation or By-Laws
(or comparable documents) or votes or proceedings of the stockholders or
Directors of the Company. The Custodian shall in no event be liable to a Fund
and shall be indemnified by the Fund for any violation which occurs in the
course of carrying out instructions given by the Fund of any investment
limitations to which the Fund is subject or other limitations with respect to
the Fund's powers to make expenditures, encumber securities, borrow or take
similar actions affecting its portfolio.
Y. Proper Instructions - Proper instructions shall mean a tested telex
from a Fund or a written request, direction, instruction or certification signed
or initialled on behalf of the Fund by one or more person or persons as the
Board of Directors of a Fund shall have from time to time authorized, provided,
however, that no such instructions directing the delivery of securities or the
payment of funds to an authorized signatory of the Fund shall be signed by such
person. Those persons authorized to give Proper Instructions may be identified
by the Board of Directors by name, title or position and will include at least
one officer empowered by the Board to name other individuals who are authorized
to give Proper Instructions on behalf of the Fund. Telephonic or other oral
instructions given
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<PAGE>
by any one of the above persons will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a person authorized to
give such instructions with respect to the transaction involved. Oral
instructions will be confirmed by tested telex or in writing in the manner set
forth above but the lack of such confirmation shall in no way affect any action
taken by the Custodian in reliance upon such oral instructions. The Company
authorizes the Custodian to tape record any and all telephonic or other oral
instructions given to the Custodian by or on behalf of a Fund (including any of
its officers, Directors, employees or agents) and will deliver to the Custodian
a similar authorization from any investment manager or adviser or person or
entity with similar responsibilities which is authorized to give Proper
Instructions on behalf of the Fund to the Custodian. Proper instructions may
relate to specific transactions or to types or classes of transactions, and may
be in the form of standing instructions.
Proper instructions may include communications effected directly
between electro-mechanical or electronic devices or systems, in addition to
tested telex, provided that the Company and the Custodian agree to the use of
such device or system.
3. Securities, funds and other property of a Fund may be held by
subcustodians appointed pursuant to the provisions of this Section 3 (a
"Subcustodian"). The Custodian may, at any time and from time to time, appoint
any bank or trust company or
- 16 -
<PAGE>
securities depository (meeting the requirements of a custodian or a foreign
custodian under the Investment Company Act of 1940 and the rules and regulations
thereunder) to act as a Subcustodian for a Fund, provided that the Fund shall
have approved in writing (1) any such bank or trust company or securities
depository and the subcustodian agreement to be entered into between such bank
or trust company and the Custodian or any Subcustodian, and (2) if the
subcustodian is a bank, trust company or securities depository organized under
the laws of a country other than the United States, the holding of securities,
cash and other property of the Fund in the country in which it is proposed to
utilize the services of such subcustodian. Upon such approval by the Fund, the
Custodian is authorized on behalf of the Fund to notify each Subcustodian of its
appointment as such. The Custodian may, at any time in its discretion, remove
any bank or trust company or securities depository that has been appointed as a
Subcustodian but will promptly notify the Fund of any such action.
Those Subcustodians, their offices or branches which each Fund has
approved to date are set forth on Appendix A hereto. Such Appendix shall be
amended from time to time as Subcustodians, branches or offices are changed,
added or deleted. A Fund shall be responsible for informing the Custodian
sufficiently in advance of a proposed investment which is to be held at a
location not listed on Appendix A, in order that there shall be sufficient time
for the Fund to give the approval
- 17 -
<PAGE>
required by the preceding paragraph and for the Custodian to put the appropriate
arrangements in place with such Subcustodian pursuant to such subcustodian
agreement.
Although a Fund does not intend to invest in a country before the
foregoing procedures have been completed, in the event that an investment is
made prior to approval, if practical, such security shall be removed to an
approved location or if not practical such security shall be held by such agent
as the Custodian may appoint. In such event, the Custodian shall be liable to a
Fund for the actions of such agent if and only to the extent the Custodian shall
have recovered from such agent for any damages caused the Fund by such agent and
provided that the Custodian shall pursue its rights against such agent.
With respect to the securities and funds held by a Subcustodian, either
directly or indirectly, including demand and interest bearing deposits,
currencies or other deposits and foreign exchange contracts as referred to in
Sections 2L, 2M, 2N, or 20 the Custodian shall be liable to a Fund if and only
to the extent that such Subcustodian or any other Subcustodian is liable to the
Custodian and the Custodian recovers under the applicable subcustodian agreement
provided that the custodian shall pursue its rights against such agent. The
Custodian shall nevertheless be liable to the Fund for its own negligence in
transmitting any instructions received by it from the Fund and for its own
negligence in connection with the delivery of any securities or funds held by it
to any such Subcustodian.
- 18 -
<PAGE>
In the event that any Subcustodian appointed pursuant to the provisions
of this Section 3 fails to perform any of its obligations under the terms and
conditions of the applicable subcustodian agreement, the Custodian shall use its
best efforts to cause such Subcustodian to perform such obligations. In the
event that the Custodian is unable to cause such Subcustodian to perform fully
its obligations thereunder, the Custodian shall forthwith upon a Fund's request
terminate such Subcustodian and, if necessary or desirable, appoint another
subcustodian in accordance with the provisions of this Section 3. At the
election of the Fund, it shall have the right to enforce, to the extent
permitted by the subcustodian agreement and applicable law, the Custodian's
rights against any such Subcustodian for loss or damage caused the Fund by such
Subcustodian.
At the written request of a Fund, the Custodian will terminate any
Subcustodian appointed pursuant to the provisions of this Section 3 in
accordance with the termination provisions under the applicable subcustodian
agreement. The Custodian will not amend any subcustodian agreement or agree to
change or permit any changes thereunder except upon the prior written approval
of the Fund.
In the event the Custodian receives a claim from a Subcustodian under
the indemnification provisions of any subcustodian agreement, the Custodian
shall promptly give written notice to the Fund of such claim. No more than
thirty days after
- 19 -
<PAGE>
written notice to the Fund of the Custodian's intention to make a payment under
such indemnification provisions, the Fund will reimburse the Custodian the
amount of such payment except in respect of any negligence or misconduct of the
Custodian or any Subcustodian.
4. The Custodian may assist generally in the preparation of reports to
Fund shareholders and others, audits of accounts, and other ministerial matters
of like nature.
5. Each Fund hereby also appoints the Custodian as its financial agent.
With respect to the appointment as financial agent, the Custodian shall have and
perform the following powers and duties:
A. Records - To create, maintain and retain such records relating to
its activities and obligations under this Agreement as are required under the
Investment Company Act of 1940 and the rules and regulations thereunder
(including Section 31 thereof and Rules 3la-1 and 3la-2 thereunder) and under
applicable Federal and State tax laws. All such records will be the property of
the Fund and in the event of termination of this Agreement shall be delivered to
the successor custodian, and the Custodian agrees to cooperate with the Fund in
execution of documents and other actions necessary or desirable in order to
substitute the successor custodian for the Custodian under this agreement.
B. Accounts - To keep books of account and render
- 20 -
<PAGE>
statements, including interim monthly and complete quarterly financial
statements, or copies thereof, from time to time as reasonably requested by
Proper Instructions.
C. Access to Records - Subject to security requirements of the
Custodian applicable to its own employees having access to similar records
within the Custodian and such regulations as may be reasonably imposed by the
Custodian, the books and records maintained by the Custodian pursuant to
Sections 5A and 5B shall be open to inspection and audit at reasonable times by
officers of, attorneys for, and auditors employed by, the Fund.
D. Calculation of Net Asset Value - To compute and determine the net
asset value per share of capital stock of the Fund as of the close of business
on the New York Stock Exchange on each day on which such Exchange is open,
unless otherwise directed by Proper Instructions. Such computation and
determination shall be made in accordance with (1) the provisions of the
Articles of Incorporation or By-Laws of the Company, as they may from time to
time be amended and delivered to the Custodian, (2) the votes of the Board of
Directors of the Company at the time in force and applicable, as they may from
time to time be delivered to the Custodian, and (3) Proper instructions from
such officers of the Company or other persons as are from time to time
authorized by the Board of Directors of the Company to give instructions with
respect to computation and determination of the net asset value. On each day
that the Custodian shall compute the net asset value
- 21 -
<PAGE>
per share of the Fund, the Custodian shall provide the Fund with written reports
which permit the Fund to verify that portfolio transactions have been recorded
in accordance with the Fund's instructions.
In computing the net asset value, the Custodian may rely upon any
information furnished by Proper Instructions, including without limitation any
information (1) as to accrual of liabilities of the Fund and as to liabilities
of the Fund not appearing on the books of account kept by the Custodian, (2) as
to the existence, status and proper treatment of reserves, if any, authorized by
the Fund, (3) as to the sources of quotations to be used in computing the net
asset value, including those listed in Appendix B, (4) as to the fair value to
be assigned to any securities or other property for which price quotations are
not readily available, and (5) as to the sources of information with respect to
"corporate actions" affecting portfolio securities of the Fund, including those
listed in Appendix B. (Information as to "corporate. actions" shall include
information as to dividends, distributions, stock splits, stock dividends,
rights offerings, conversions, exchanges, recapitalizations, mergers,
redemptions, calls, maturity dates and similar transactions, including the ex-
and record dates and the amounts or other terms thereof.)
In like manner, the Custodian shall compute and determine the net asset
value as of such other times as the Board of Directors of the Company from time
to time may reasonably request.
- 22 -
<PAGE>
Notwithstanding any other provisions of this Agreement, including
Section 6C, the following provisions shall apply with respect to the Custodian's
foregoing responsibilities in this Section 5D: The Custodian shall. be held to
the exercise of reasonable care in computing and determining net asset value as
provided in this Section 5D, but shall not be held accountable or liable for any
losses, damages or expenses the Fund or any shareholder or former shareholder of
the Fund may suffer or incur arising from or based upon errors or delays in the
determination of such net asset value unless such error or delay was due to the
Custodian's negligence, gross negligence or reckless or willful misconduct in
determination of such net asset value. (The parties hereto acknowledge, however,
that the Custodian's causing an error or delay in the determination of net asset
value may, but does not in and of itself, constitute negligence, gross
negligence or reckless or willful misconduct.) In no event shall the Custodian
be liable or responsible to a Fund, any present or former shareholder of a Fund
or any other party for any error or delay which continued or was undetected
after the date of an audit performed by the certified public accountants
employed by a Fund if, in the exercise of reasonable care in accordance with
generally accepted accounting standards, such accountants should have become
aware of such error or delay in the course of performing such audit. The
Custodian's liability for any such negligence, gross negligence or reckless or
willful misconduct
- 23 -
<PAGE>
which results in an error in determination of such net asset value shall be
limited to the direct, out-of-pocket loss a Fund, shareholder or former
shareholder shall actually incur, measured by the difference between the actual
and the erroneously computed net asset value, and any expenses a Fund shall
incur in connection with correcting the records of a Fund affected by such error
(including charges made by a Fund's registrar and transfer agent for making such
corrections) or communicating with shareholders or former shareholders of the
Fund affected by such error.
Without limiting the foregoing, the Custodian shall not be held
accountable or liable to the Fund, any shareholder or former shareholder thereof
or any other person for any delays or losses, damages or expenses any of them
may suffer or incur resulting from (1) the Custodian's failure to receive timely
and suitable notification concerning quotations or corporate actions relating to
or affecting portfolio securities of a Fund or (2) any errors in the computation
of the net asset value based upon or arising out of quotations or information as
to corporate actions if received by the Custodian either (i) from a source which
the Custodian was authorized pursuant to the second paragraph of this Section 5D
to rely upon, or (ii) from a source which in the Custodian's reasonable judgment
was as reliable a source for such quotations or information as the sources
authorized pursuant to that paragraph. Nevertheless, the Custodian will use its
best
- 24 -
<PAGE>
judgment in determining whether to verify through other sources any information
it has received as to quotations or corporate actions if the Custodian has
reason to believe that any such information might be incorrect.
In the event of any error, or delay in the determination of such net
asset value for which the Custodian may be liable, the Fund and the Custodian
will consult and make good faith efforts to reach agreement on what actions
should be taken in order to mitigate any loss suffered by the Fund or its
present or former shareholders, in order that the Custodian's exposure to
liability shall be reduced to the extent possible after taking into account all
relevant factors and alternatives. Such actions might include the Fund or the
Custodian taking reasonable steps to collect from any shareholder or former
shareholder who has received any overpayment upon redemption of shares such
overpaid amount or to collect from any shareholder who has underpaid upon a
purchase of shares the amount of such underpayment or to reduce the number of
shares issued to such shareholder. It is understood that in attempting to reach
agreement on the actions to be taken or the amount of the loss which should
appropriately be borne by the Custodian, the Fund and the Custodian will
consider such relevant factors as applicable law, the amount of the loss
involved, the Fund's desire to avoid loss of shareholder good will, the fact
that other persons or entities could have been reasonably expected to have
detected the error sooner than
- 25 -
<PAGE>
the time it was actually discovered, the appropriateness of limiting or
eliminating the benefit which shareholders or former shareholders might have
obtained by reason of the error, and the possibility that other parties
providing services to a Fund might be induced to absorb a portion of the loss
incurred.
E. Disbursements - Upon receipt of Proper Instructions, to pay or cause
to be paid, insofar as funds are available for the purpose, bills, statements
and other obligations of the Fund (including but not limited to interest
charges, taxes, management fees, compensation to Company officers and employees,
and other operating expenses of the Fund).
6. A. The Custodian shall not be liable for any action taken or omitted
in reliance upon Proper Instructions believed by it to be genuine or upon any
other written notice, request, direction, instruction, certificate or other
instrument believed by it to be genuine and signed by the proper party or
parties.
The Secretary or Assistant Secretary of the Company shall certify to
the Custodian the names, signatures and scope of authority of all persons
authorized to give Proper Instructions or any other such notice, request,
direction, instruction, certificate or instrument on behalf of each Fund, the
names and signatures of the officers of the Company, the name and address of the
Shareholder Servicing Agent, and any resolutions, votes, instructions or
directions of the Company's Board of Directors or shareholders. Such certificate
may be accepted and relied upon
- 26 -
<PAGE>
by the Custodian as conclusive evidence of the facts set forth therein and may
be considered in full force and effect until receipt of a similar certific.1te
to the contrary.
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement.
The Custodian shall be entitled, at the expense of a Fund, to receive
and act upon advice of counsel (who may be counsel for a Fund) on all matters,
and the Custodian shall be without liability for any action reasonably taken or
omitted pursuant to such advice.
B. With respect to the portfolio securities, cash and other property of
a Fund held by a Securities System, the Custodian shall be liable to that Fund
only for any loss or damage to the Fund resulting from use of the Securities
System if caused by any negligence, misfeasance or misconduct of the Custodian
or any of its agents or of any of its or their employees or from any failure of
the Custodian or any such agent to enforce effectively such rights as it may
have against the Securities System.
C. Except as may otherwise be set forth in this Agreement with respect
to particular matters, the Custodian shall be held only to the exercise of
reasonable care and diligence in carrying out the provisions of this Agreement,
provided that the Custodian
- 27 -
<PAGE>
shall not thereby be required to take any action which is in contravention of
any applicable law. However, nothing herein shall exempt the Custodian from
liability due to its own negligence or willful misconduct. The Company agrees to
indemnify and hold harmless the Custodian and its nominees from all claims and
liabilities (including counsel fees) incurred or assessed against it or its
nominees in connection with the performance of this Agreement, except such as
may arise from its or its nominee's breach of the relevant standard of conduct
set forth in this Agreement. Without limiting the foregoing indemnification
obligation of the Company, the Company agrees to indemnify the Custodian and its
nominees against any liability the Custodian or such nominee may incur by reason
of taxes assessed to the Custodian or such nominee or other costs, liability or
expense incurred by the Custodian or such nominee resulting directly or
indirectly from the fact that portfolio securities or other property of a Fund
is registered in the name of the Custodian or such nominee.
In order that the indemnification provisions contained in this
Paragraph 6-C shall apply, however, it is understood that in any case the
Company may be asked to indemnify or hold the Custodian harmless, the Company
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the Custodian will use
all reasonable care to identify and notify the Company
- 28 -
<PAGE>
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for indemnification against the Company. The
Company shall have the option to defend the Custodian against any claim which
may be the subject of this indemnification, and in the event that the Company so
elects it will so notify the Custodian, and thereupon the Company shall take
over complete defense of the claim, and the Custodian shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this Paragraph 6-C. The Custodian shall in no case confess
any claim or make any compromise in any case in which the Company will be asked
to indemnify the Custodian except with the Company's prior written consent.
It is also understood that the Custodian shall not be liable for any
loss involving any securities, currencies, deposits or other property of the
Company, whether maintained by it, a Subcustodian, an agent of the Custodian or
a Subcustodian, a Securities System, or a Banking Institution, or a loss arising
from a foreign currency transaction or contract, resulting from a Sovereign
Risk. A "Sovereign Risk" shall mean nationalizaton, expropriation, devaluation,
revaluation, confiscation, seizure, cancellation, destruction or similar action
by any governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other
- 29 -
<PAGE>
charges affecting the Company's property; or acts of war, terrorism,
insurrection or revolution; or any other similar act or event beyond the
Custodian's control.
D. The Custodian shall be entitled to receive reimbursement from a Fund
on demand, in the manner provided in Section 7, for its cash disbursements,
expenses and charges (including the fees and expenses of any Subcustodian or any
Agent) in connection with this Agreement, but excluding salaries and usual
overhead expenses.
E. The Custodian may at any time or times in its discretion appoint
(and may at any time remove) any other bank or trust company as its agent (an
"Agent") to carry out such of the provisions of this Agreement as the Custodian
may from time to time direct, provided, however, that the appointment of such
Agent (other than an Agent appointed pursuant to the third paragraph of Section
3) shall not relieve the Custodian of any of its responsibilities under this
Agreement.
F. Upon request, a Fund shall deliver to the Custodian such proxies,
powers of attorney or other instruments as may be reasonable and necessary or
desirable in connection with the performance by the Custodian or any
Subcustodian of their respective obligations under this Agreement or any
applicable subcustodian agreement.
7. Each Fund shall pay the Custodian a custody fee based on such fee
schedule as may from time to time be agreed upon in
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<PAGE>
writing by the Custodian and the Fund. Such fee, together with all amounts for
which the Custodian is to be reimbursed in accordance with Section 6D, shall. be
billed to each Fund in such a manner as to permit payment by a direct cash
payment to the Custodian or by placing Fund portfolio transactions with the
Custodian resulting in an agreed-upon amount of commissions being paid to the
Custodian resulting in an agreed-upon period of time.
8. This Agreement shall continue in full force and effect until
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid, to the other party, such termination to take effect not sooner
than seventy five (75) days after the date of such delivery or mailing. In . the
event of termination the Custodian shall be entitled to receive prior to
delivery of the securities, funds and other property held by it all accrued fees
and unreimbursed expenses the payment of which is contemplated by Sections 6D
and 7, upon receipt by the Fund of a statement setting forth such fees and
expenses.
In the event of the appointment of a successor custodian, it is agreed
that the funds and securities owned by a Fund and held by the Custodian or any
Subcustodian shall be delivered to the successor custodian, and the Custodian
agrees to cooperate with the Company in execution of documents and performance
of other actions necessary or desirable in order to substitute the successor
custodian for the Custodian under this Agreement.
9. This Agreement constitutes the entire understanding and
- 31 -
<PAGE>
agreement of the parties hereto with respect to the subject matter hereof. No
provision of this Agreement may be amended or terminated except by a statement
in writing signed by the party against which enforcement of the amendment or
termination is sought.
In connection with the operation of this Agreement, the Custodian and
the Company may agree in writing from time to time on such provisions
interpretative of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement. No
interpretative or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement.
10. This instrument is executed and delivered in The Commonwealth of
Massachusetts and shall be governed by and construed according to the laws of
said Commonwealth.
11. Notices and other writings delivered or mailed postage prepaid to
the Fund addressed to the Company at 2755 Campus Drive, San Mateo, CA 94403 or
to such other address as the Company may have designated to the Custodian in
writing, or to the Custodian at 40 Water Street, Boston, Massachusetts 02109,
Attention: Manager, Securities Department, or to such other address as the
Custodian may have designated to the Company in writing, shall be deemed to have
been properly delivered or given hereunder to the respective addressee.
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<PAGE>
12. This Agreement shall be binding on and shall inure to the benefit
of the Company and the Custodian and their respective successors and assigns,
provided that neither party hereto may assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of the other
party.
13. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original. This Agreement shall become effective when
one or more counterparts have been signed and delivered by each of the parties.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in its name and behalf on the day and year first above written.
BAILARD, BIEHL & KAISER BROWN BROTHERS HARRIMAN & CO
INTERNATIONAL FUND GROUP, INC.
By /s/ Richard F. Holbrook /s/ [ILLEGIBLE]
------------------------------------ ----------------------------------
Partner
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<PAGE>
AMENDMENT TO THE
----------------
CUSTODIAN AGREEMENT
-------------------
Amendment made as of December 22, 1995 (the "Amendment"), between
Bailard, Biehl & Kaiser International Fund Group, Inc. (the "Company") and Brown
Brothers Harriman & Co. (the "Custodian") to the Custodian Agreement dated June
12, 1990, on behalf of Bailard, Biehl & Kaiser International Equity Fund and
Bailard (the "Fund"), Biehl & Kaiser International Fixed-Income Fund (the
"Fund") and any other separate portfolio that may be designated from time to
time by the Fund and Brown Brothers Harriman & Co.
In consideration of the mutual covenants and agreements herein
contained, the Fund and the Custodian agree that the Custodian Agreement is
hereby amended as follows:
I . Section [y], proper Instructions, is amended in its entirety as
follows:
" [y]. Proper Instructions - Proper instructions shall include, in
order of preference, authenticated electro-mechanical communications including
SWIFT and tested telex; a written request signed by two or more authorized
persons as set forth below; telefax transmissions and oral instructions. Each of
the foregoing methods of communicating proper instructions is described and
defined below and may from time to time be further described and defined in
written operating memoranda between the Custodian and the Fund.
Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices or systems, including
authenticated SWIFT and tested telex transmissions. The media through which such
Proper Instructions shall be transmitted and the data which must be contained in
such Proper Instructions in order for such instruction to be complete shall be
set forth in certain operating memoranda to which the Custodian and the Fund
shall from time to time agree. The Fund shall be responsible for sending
instructions which meet the requirements set forth therein and the Custodian
shall be only be responsible for acting on instructions which meet such
requirements. The Custodian shall not be liable for direct or consequential
losses resulting from technical failures of any kind in respect of instructions
sent via electro-mechanical or electronic communications.
<PAGE>
Proper Instructions shall include a written request, direction,
instruction or certification signed or initialed on behalf of the Fund by two or
more persons as the Board of Trustees or Directors of the Fund shall have from
time to time authorized, provided, however, that no such instructions directing
the delivery of securities or the payment of funds to an authorized signatory of
the Fund shall be signed by such persons. Those persons authorized to give
proper instructions may be identified by the Board of Trustees or Directors by
name, title or position and will include at least one officer empowered by the
Board to name other individuals who are authorized to give proper instructions
on behalf of the Fund. Telephonic or other oral instructions or instructions
given by facsimile transmission may be given by any one of the above persons and
will be considered proper instructions if the Custodian reasonably believes them
to have been given by a person authorized to give such instructions with respect
to the transaction involved.
With respect to telefax transmissions, the Fund and the Custodian
hereby acknowledge that (i) receipt of legible instructions cannot be assured,
(ii) the Custodian cannot verify that authorized signatures on telefax
instructions are original, and (iii) the Custodian shall not be responsible for
losses or expenses incurred through actions taken in reliance on such telefax
instructions.
The Custodian may act on oral instructions provided such instructions
will be confirmed by authenticated electro-mechanical communications in the
manner set forth above but the lack of such confirmation shall in no way affect
any action taken by the Custodian in reliance upon such oral instructions. The
Fund authorizes the Custodian to tape record any and all telephonic or other
oral instructions given to the Custodian by or on behalf of the Fund (including
any of its officers, Directors, Trustees, employees or agents or any investment
manager or adviser or person or entity with similar responsibilities which is
authorized to give proper instructions on behalf of the Fund to the Custodian.)
Proper instructions may relate to specific transactions or to types or
classes or transactions, and may be in the form of standing instructions."
<PAGE>
Except as amended above, all the provisions of the Custodian Agreement
as hereto effect shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
Bailard, Biehl & Kaiser International BROWN BROTHERS HARRIMAN & CO.
Fund Group, Inc.
_____________________________________ _________________________________
(signature)
_____________________________________ _________________________________
(name/title)
ADMINISTRATION AGREEMENT
------------------------
THIS AGREEMENT is made as of the ' 1st day of October , 1991 by and
between the Bailard, Biehl & Kaiser International Fixed-Income and Equity Funds
(the "Funds"), two separate series of the Bailard, Biehl & Kaiser International
Fund Group, Inc. , a Maryland Corporation (the "Company"), and INVESTMENT
COMPANY ADMINISTRATION CORPORATION, a New Jersey Corporation (the
"Administrator");
WITNESSETH
WHEREAS, the Funds are non-diversified series of an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Company wishes to retain the Administrator to provide
certain administrative services in connection with the management of the Funds'
operations and the Administrator is willing to furnish such services:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints the Administrator to
provide certain administrative services, hereinafter enumerated, in connection
with the management of the Funds' operations for the period and on the terms set
forth in this Agreement. The Administrator accepts such appointment and agrees
to comply with all relevant provisions of the 1940 Act, applicable rules and
regulations thereunder, and other applicable law.
2. Services on a Continuing Basis. Subject to the overall supervision
of the Board of Directors of the Company and Bailard, Biehl & Kaiser Inc., (the
"Manager"), the Administrator will perform the following services on a regular
basis which would be daily, weekly or as otherwise appropriate:
A) perform the services in Schedule 1 attached; and
B) such additional services as may be agreed upon by the Funds and the
Administrator.
<PAGE>
3. Responsibility of the Administrator. The Administrator shall be
under no duty to take any action on behalf of the Funds except as set forth
herein or as may be agreed to by the Administrator in writing. In the
performance of its duties hereunder, the Administrator shall be obligated to
exercise reasonable care and diligence and to act in good faith and to use its
best efforts. Without limiting the generality of the foregoing or any other
provision of this Agreement, the Administrator shall not be liable for delays or
errors or loss of data occurring by reason of circumstances beyond the
Administrator's control.
4. Reliance Upon Instructions. The Company agrees that the
Administrator shall be entitled to rely upon any instructions, oral or written,
actually received by the Administrator from the Board of Directors of the
Company and shall incur no liability to the Company or the Company's Manager in
acting upon such oral or written instructions, provided such instructions
reasonably appear to have been received from a person duly authorized by the
Board of Directors of the Company to give oral or written instructions on behalf
of the Funds.
5. Confidentiality. The Administrator agrees on behalf of itself and
its employees to treat confidentially all records and other information relative
to the Funds and all prior, present or potential shareholders of the Funds,
except after prior notification to, and approval of release of information in
writing by, the Funds, which approval shall not be unreasonably withheld where
the Administrator may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Funds.
6. Equipment Failures. In the event of equipment failures or the
occurrence of events beyond the Administrator's control which render the
performance of the Administrator's functions under this Agreement impossible,
the Administrator shall take reasonable steps to minimize service interruptions
and is authorized to engage the services of third parties (at the
Administrator's expense) to prevent or remedy such service interruptions.
7. Compensation. As compensation for services rendered by the
Administrator during the term of this agreement, each Fund (the International
Fixed-Income Fund and International Equity Fund) will pay to the Administrator
an annual fee equal to $40,000, payable monthly by the fifth day of the next
month.
<PAGE>
8. Indemnification. The Funds agree to indemnify and hold harmless the
Administrator from all taxes, filing fees, charges, expenses, assessments,
claims and liabilities (including without limitation, liabilities arising under
the Securities Act of 1933, the Securities Exchange Act of 1934, the 1940 Act,
and any state and foreign securities laws, all as amended from time to time) and
expenses, including (without limitation) reasonable attorneys fees and
disbursements, arising directly or indirectly from any action or thing which the
Administrator takes or does or omits to take or do at the request of or in
reliance upon the advice of the Board of Directors of the Company, provided,
that the Administrator will not be indemnified against any liability to the
Funds or to shareholders of the Funds (or any expenses incident to such
liability) arising out of the Administrator's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties and obligations
under this Agreement. The Administrator agrees to indemnify and hold harmless
the Funds, the Company, and each of its Directors from all claims and
liabilities (including, without limitation, liabilities arising under the
Securities Act of 1933, the Securities Exchange Act of 1934, the 1940 Act, and
any state and foreign securities laws, all as amended from time to time) and
expenses, including (without limitation) reasonable attorneys fees and
disbursements, arising directly or indirectly from any action or thing which the
Administrator takes or does or omits to take or do which is in violation of this
Agreement or not in accordance with instructions properly given to the
Administrator, or arising out of the Administrator's own willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties and obligations
under this Agreement. No fund or other series of the Company shall be liable for
any claim against, or expense of, any other fund or series of the Company.
9. Duration and Termination. This Agreement shall continue until
termination by the Funds (through the Board of Directors of the Company) or the
Administrator on 60 days' written notice to the other. All notices and other
communications hereunder shall be in writing. This Agreement cannot be assigned
without the prior written consent of the other party hereto.
10. Amendments. This Agreement or any part hereof may be changed or
waived only by instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
<PAGE>
11. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the services to be
performed hereunder, and supersedes all prior agreements and understandings,
relating to the subject matter hereof. The captions in this Agreement are
included for convenience of reference only and in no way define or limit any of
the provisions hereof or otherwise affect their construction or effect. This
Agreement shall be deemed to be a contract made in California and governed by
California law. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
will not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first written
above.
BAILARD, BIEHL & KAISER INTERNATIONAL
FUND GROUP, INC.
By: /s/ Bryan Brown
--------------------------------
Title: Treasurer
-----------------------------
INVESTMENT COMPANY ADMINISTRATION
CORPORATON
By: /s/ Eric Banhazl
--------------------------------
Title: Vice President
-----------------------------
<PAGE>
Schedule I
Services
A. Administration
1. Legal
a. Draft and file in conjunction with Funds' counsel the
Post-Effective Amendment and any supplements ("stickers")
to the Registration Statement for each Fund.
b. File State Registrations
c. Maintain corporate and blue sky calendars covering the
matters referred to herein.
d. Monitor Blue Sky summary reports.
e. Order checks for states that have to be renewed or amended.
f. Complete various State forms for renewals or amendments.
g. Complete blue sky sales reports for states where required.
h. Mail out copies of prospectuses and annual reports when new
ones are printed.
i. Notify all states of any change to any Fund.
j. Assist in obtaining required Fidelity Bond and Directors
and Officers Insurance, and monitor on a monthly basis
compliance with levels of Fidelity Bond Insurance required
by the Investment Company Act.
k. Prepare and distribute materials for all directors,
including annual 1099's.
l. Prepare required and pro-forma data for annual approvals of
advisory, distribution and administrative services
contracts.
m. File Rule 24F-2 Notice annually.
n. Assist in the negotiations of any contracts covering the
matters referred to herein.
o. Draft and file proxy statements in conjunction with Funds'
counsel.
p. Recommend items covering the matters referred to herein for
the agenda for the Board of Directors Meetings.
<PAGE>
q. Prepare or compile all exhibits for related agenda items
(i.e. contracts, reports, schedules).
r. Prepare and file NSAR semi-annually.
s. Coordinate the activities of the Funds' Advisers, Transfer
Agents, Custodians, Legal Counsel and Independent
Accountants, as they relate to the Adminstrator's
oversight, recordkeeping and reporting responsibilities
hereunder.
2. Operations & Administration
a. Prepare and file periodic reports to shareholders and
coordinate each proof copy with printers, independent
accountants, and attorneys prior to production of the final
product.
b. Monitor daily and periodic compliance -with respect to
Investment Company Act, Internal Revenue Code, and
Prospectus guidelines and restrictions, which includes the
items identified in Appendix A (attached) performed on a
periodic basis.
c. Frequent audit of all income and expense accruals, sales
and redemptions of capital shares, and capital shares
outstanding.
d. Evaluate expenses, project future expenses, determine
accruals, and process payments of expenses.
<PAGE>
Addendum to Administration Agreements
-------------------------------------
Effective July 1, 1995, the Administration Agreements between
Investment Company Administration Corporation and Bailard Biehl & Kaiser Fund
Group and Bailard, Biehl & Kaiser International Fund Group, Inc., dated April 1,
1994 and October 1, 199 1, respectively, are hereby amended as follows:
1. Paragraph 7 of the Agreements.
-----------------------------
7. Compensation. As compensation for services rendered by the
Administrator during the term of this agreement, each Fund will pay to
the Administrator an annual fee equal to $32,500, payable monthly by the
fifth day of the next month.
2. Schedule I of the Attachments.
-----------------------------
A. Administration
1. Legal
Paragraphs b., d., e., f, g. and I. are omitted from the
schedule of services to be provided. Paragraph c. is revised to read as
follows:
c. Maintain corporate calendars covering the matters
referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed by their officers designated below on the day and year first written
above.
BAILARD, BIEHL & KAISER FUND GROUP and
BAILARD, BIEHL & KAISER INTERNATIONAL FUND GROUP, INC
By: /s/ [ILLEGIBLE]
--------------------------
Title: Treasurer
-----------------------
INVESTMENT COMPANY ADMINISTRATION CORPORATION
By: /s/ Eric Banhazl
--------------------------
Title: Sr. Vice President
-----------------------
EXHIBIT 10.1
------------------
ORRICK, HERRINGTON
& SUTCLIFFE
Direct Dial
July 25, 1990
Bailard, Biehl & Kaiser
International Fund Group, Inc.
2755 Campus Drive
San Mateo, California 94403
Re: Bailard, Biehl & Kaiser International Fund Group, Inc.:
Post-Effective Amendment No. 14 to Registration Statement on
Form N-1A
--------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Bailard, Biehl & Kaiser
International Fund Group, Inc. (the "Fund Group"), in connection with the
preparation and filing of Post-Effective Amendment No. 14 to Registration
Statement on Form N-1A (No. 2-63270) under the Securities Act of 1933, as
amended (the "Registration Statement"), covering an unlimited number of shares
of common stock, par value $0.0001 per share (the "Shares"), of the Bailard,
Biehl Kaiser International Equity Fund series, the Bailard, Biehl Kaiser
International Fixed-Income Fund series and such other series of Shares as have
been authorized by the Fund Group's Articles of Incorporation dated June 12,
1990.
We have examined records, documents, instruments and
certificates that we have deemed relevant and necessary for the basis of our
opinion hereinafter expressed. In such examination, we have assumed the
following: (a) the authenticity of original documents and the genuineness of all
signatures; (b) the conformity to the originals of all documents submitted to us
as copies; and (c) the truth, accuracy and completeness of the information,
representations, and warranties contained in the records, documents,
instruments, and certificates we have reviewed.
-----------------------------
Old Federal Reserve Bank Building * 400 Sansome Street *
San Francisco, California 94111
Telephone 415 392 1122 * Facsimile 415 773 5759
Los Angeles 213 680 7000 * New York 212 326 8800 * Sacramento 916 447 9200
<PAGE>
------------------
ORRICK, HERRINGTON
& SUTCLIFFE
Bailard, Biehl & Kaiser
International Fund Group, Inc.
July 25, 1990
Page 2
Based on the foregoing, it is our opinion that (i) the
presently outstanding Shares of the Fund Group are legally issued, fully paid
and nonassessable by the Fund Group; and (ii) when the Shares to be offered for
sale pursuant to the Registration Statement have been duly sold, issued and paid
for as contemplated by the Registration Statement, such Shares will be, legally
issued, fully paid and nonassessable by the Fund Group.
In rendering the foregoing opinion, we have relied on the
opinion of Piper & Marbury, annexed hereto as Exhibit A, with respect to the
matters addressed therein.
We hereby consent to the use of our name in the Registration
Statement, including the Prospectus constituting a part thereof, and to the
filing of our opinion with the Securities and Exchange Commission as an exhibit
to such Registration Statement, as originally filed or as subsequently amended
or supplemented.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe
Orrick, Herrington & Sutcliffe
PIPER & MARBURY EXHIBIT 10.2
1100 CHARLES CENTER SOUTH
36 SOUTH CHARLES STREET
BALTIMORE. MARYLAND 21201-3010
301-539-2530
FACSIMILE 301-539-0489
CABLE PIPERMAR BAL
TELEX 908054
1200 NINETEENTH STREET, N.W.
WASHINGTON, D.C. 20036
202-861-3900
July 24, 1990
Bailard, Biehl & Kaiser
International Fund Group, Inc.
2755 Campus Drive
San Mateo, California 94403
Dear Sirs:
We have acted as Maryland counsel for Bailard, Biehl & Kaiser
International Fund Group, Inc., a Maryland corporation (the "Fund Group") in
connection with the registration under the Securities Act of 1933, as amended,
of up to 1,000,000,000 shares of the Fund's Common Stock, par value $.0001 per
share (the "Shares") to be issued by the Fund Group pursuant to the Fund Group's
Registration Statement on Form N-1A, filed with the Securities and Exchange
Commission (File Number 2-63270) as amended (the "Registration Statement"). In
that capacity we have examined Amendment No. 14 to the Registration Statement,
the charter and by-laws of the Fund Group and such statutes, regulations and
corporate records and documents that we have deemed necessary or advisable for
purposes of the following opinion.
Based upon the foregoing and upon such other legal considerations that
we deemed relevant and limited in all respects to applicable Maryland law, we
are of the opinion that the presently outstanding Shares (the "Outstanding
Shares") ' are, and when the Shares to be offered for sale pursuant to the
Registration Statement (the "New Shares") have been issued and sold as
described therein, such New Shares will be, legally issued, fully paid and
nonassessable.
Messrs. Orrick, Herrington and Sutcliffe may rely upon the foregoing
opiniori in rendering their opinion on the foregoing matters to the same extent
as if a counterpart of this letter had been addressed to them. We hereby consent
to the incorporation of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Piper & Marbury
EXHIBIT 10.3
[Slaughter & May Letterhead]
Orrick, Herrington & Sutcliffe,
Old Federal Reserve Bank Building,
400 Sansome Street,
San Francisco, California 94111. 15th July, 1990.
For the attention of Mr. Timothy B. Parker
- ------------------------------------------
Dear Sirs,
BAILARD, BIEHL & KAISER INTERNATIONAL GROUP FUND, INC.
- ------------------------------------------------------
We hereby consent to the use of our name in post-effective amendment No. 14 to
the Form N-1A Registration Statement (No. 2-63270) and the related prospectus
and the Statement of Additional Information of the Bailard, Biehl B Kaiser
International Equity Fund series under the caption "Tax Aspects" and to the
filing of this consent as an exhibit to post-effective Amendment No. 14.
Yours faithfully,
/s/ Slaughter & May
