FIRST EAGLE SOGEN FUNDS, INC.
1221 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
December 31, 1999
Xxxxxxx and X. Xxxxxxxxxxxx Advisers, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Investment Advisory Contract
Dear Sirs:
First Eagle SoGen Funds, Inc., (the "Company"), a Maryland corporation
consisting of four portfolios, First Eagle SoGen International Fund, First Eagle
SoGen Overseas Fund, First Eagle SoGen Gold Fund and First Eagle SoGen Money
Fund (referred to herein individually as a "Fund" or collectively as the
"Funds"), is engaged in the business of an investment company. The Company's
Board of Directors has selected you to act as the investment adviser of the
Company, as more fully set forth below, and you are willing to act as such
investment adviser and to perform such services under the terms and conditions
hereinafter set forth. Accordingly, the Company agrees with you as follows:
1. Delivery of Corporate Documents. The Company has furnished you with
copies properly certified or authenticated of each of the following:
(a) Articles of Incorporation of the Company.
(b) By-Laws of the Company as in effect on the date hereof.
(c) Statement of Rules adopted by the Board of Directors of the
Company.
(d) Current Registration Statement of the Company with copies of
Exhibits
(e) Resolutions of the Board of Directors of the Company selecting you
as investment adviser and approving the form of this Agreement.
The Company will furnish you from time to time with copies properly certified or
authenticated, of any amendments of or supplements to the foregoing, if any.
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2. Advisory Services. You will regularly provide the Company with
investment research, advice and supervision and will furnish continuously an
investment program for the Company's Portfolio consistent with the Fund's
investment objective, policies and restrictions set forth in the Company's
Registration Statement under the Securities Act of 1933, as amended (the
"Registration Statement") , and the current prospectus and statement of
additional information included therein (the "Prospectus"). You will recommend
what securities shall be purchased for each of the Funds, what portfolio
securities shall be sold by each Fund, and what portion of each Fund's assets
shall be held uninvested, subject always to such investment objectives, policies
and restrictions and to the provisions of the Company's Articles of
Incorporation, By-Laws, Statement of Rules, and the requirements of the
Investment Company Act of 1940, as amended (the " 1940 Act"), as each of the
same shall be from time to time in effect. You shall advise and assist the
officers of the Company in taking such steps as are necessary or appropriate to
carry out the decisions of its Board of Directors and any appropriate committees
of such Board regarding the foregoing matters and general conduct of the
investment business of the Company.
3. Allocation of Charges and Expenses. You will pay the compensation
and expenses of all officers of the Company and will furnish, without expense to
the Company, the services of such of your officers and employees as may duly be
elected officers or directors of the Company, subject to their individual
consent to serve and to any limitations imposed by law. You will pay the
Company's office rent and ordinary office expenses and will provide investment,
advisory, research and statistical facilities and all clerical services relating
to research, statistical and investment work. (It is understood that the
foregoing provision does not obligate you to pay for the maintenance of the
Company's general ledger and securities cost ledger or for daily pricing of the
Company's securities, but that it does obligate you, without expense to the
Company, to oversee the provision of such services by the Company's agent.) You
will not be required hereunder to pay any expenses of the Company other than
those above enumerated in this paragraph 3. In particular, but without limiting
the generality of the foregoing, you will not be required to pay hereunder:
brokers' commissions; legal or auditing expenses; taxes or governmental fees;
any direct expenses of issue, sale, underwriting, distribution, redemption or
repurchase of the Company's; the expenses of registering or qualifying
securities for sale; the cost of preparing and distributing reports and notices
to stockholders; the fees or disbursements of dividend, disbursing, shareholder,
transfer or other agent; or the fees or disbursements of custodians of the
Company's assets.
4. Compensation of the Adviser. For all services to be rendered and
payments made as provided in paragraphs 2 and 3 hereof, you will receive a
monthly fee after the last day of each month, in accordance with Schedule A
attached hereto.
If this Agreement is terminated with respect to a Fund as of any day
not the last day of a month, such Fund's fee shall be paid as promptly as
possible after such date of termination. If this Agreement shall be effective
for less than the whole of any month, such fee shall be based on the average
daily value of the net assets of each Fund in the part of the month for which
this Agreement shall be effective and shall be that proportion of such fee as
the number of business days (days on which the New York Stock Exchange is open
all or part of the day for unrestricted trading)
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in such period bears to the number of business days in such month. The average
daily value of the net assets of each Fund shall in all cases be based only on
business days for the period or month and shall be computed in accordance with
applicable provisions of the Articles of Incorporation of the Company.
5. Purchase and Sale of Securities. You shall purchase securities from
or through and sell securities to or through such persons, brokers or dealers
(including any of your affiliates) as you shall deem appropriate in order to
carry out the Company's brokerage policy as set forth from time to time in the
Registration Statement and Prospectus, or as the Board of Directors of the
Company may require from time to time. You acknowledge that you will comply with
all applicable provisions of the 1940 Act, Investment Advisers Act of 1940, as
amended (the "Investment advisers Act") and the Securities Exchange Act of 1934,
as amended, including without limitation the provisions of Section 28(3)
thereof, with respect to the allocation of portfolio transactions. When
purchasing securities from or through, and selling securities to or through, any
such persons, brokers or dealers that may be affiliated with you, you shall
comply with all applicable provisions of the 1940 Act, including without
limitation Section 17 thereof and the rules and regulations thereunder, and
Section 206 of the Investment Advisers Act and the rules and regulations
thereunder. In providing the Company with investment management and supervision,
it is recognized that you will seek the best combination of price (inclusive of
brokerage commissions) and execution, and, consistent with such policy, may give
consideration to the research, statistical and other services furnished by
brokers or dealers as such Board may direct or authorize from time to time.
Notwithstanding the above, it is understood that it is desirable for
the Company that you have access to research services provided by brokers who
execute brokerage transactions at a higher cost to the Company than may result
when allocating brokerage to other brokers on the basis of seeking the best
combination of price (inclusive of brokerage commissions) and execution. Such
research services include written reports, responses to specific inquiries,
interviews with analysts, invitations to meetings arranged by brokers with the
managements of companies in the Company's portfolio or in which the Company may
invest and may include other types of research from time to time approved by the
Board of Directors of the Company. Only research services provided to you for
the benefit of the Company will be considered in selecting brokers to effect
portfolio transactions for the Company unless otherwise authorized by such
Board. You are authorized to place orders for the purchase and sale of
securities for the Company with brokers who provide such research services,
subject to review by the Board of Directors of the Company from time to time,
but not less frequently than quarterly, with respect to the extent and
continuation of this practice. It is understood that the services provided by
such brokers may be useful to you and your affiliates in connection with their
services to other clients as well as the Company. You acknowledge that you will
comply with all applicable provisions of the 1940 Act, Investment Advisers Act
and the Securities Exchange Act of 1934, as amended, including without
limitation the provisions of Section 28(e) thereof, with respect to the
allocation of portfolio transactions.
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Nothing herein shall prohibit the Board of Directors of the Company
from approving the payment by the Company of additional compensation to others
for consulting services, supplemental research and security and economic
analysis.
6. Services to Other Accounts. The Company understands that you and
your affiliates now act, will continue to act, and may in the future act as
investment adviser to fiduciary and other managed accounts, and the Company has
no objection to you and your affiliates so acting, provided that whenever a Fund
and one or more other accounts advised by you (the "Managed Accounts") are
prepared to purchase, or desire to sell, the same security, available
investments or opportunities for sales will be allocated in a manner that is
equitable to each entity. In such situations, you may place orders for a Fund
and each Managed Account simultaneously, and if all such orders are not filled
at the same price, you may cause the Fund and each Managed Account to pay or
receive the average of the prices at which the orders were filled for the Fund
and all Managed Accounts. If all such orders cannot be executed fully under
prevailing market conditions, you may allocate the traded securities between the
Fund and the Managed Accounts in a manner you consider appropriate, taking into
account the size of the order placed for the Fund and each such Managed Account
and, in the event of a sale, the size of the pre-sale position of the Fund and
each such Managed Account, as well as any other factors you deem relevant. The
Company recognizes that in some cases this procedure may affect adversely the
price paid or received by a Fund or the size of the position purchased or sold
by such Fund. In addition, the Company understands that the persons employed by
you to provide service to the Company in connection with the performance of your
duties under this Agreement will not devote their full time to that service.
Moreover, nothing contained in this Agreement will be deemed to limit or
restrict your right or the right of any of your affiliates to engage in and
devote time and attention to other businesses or to render services of whatever
kind or nature including serving as investment adviser to, or employee, officer,
director or trustee of, other investment companies.
7. Avoidance of Inconsistent Position. If any occasion should arise in
which you give any advice to clients of yours concerning the shares of the
Company, you will act solely as investment counsel for such clients and not in
any way on behalf of the Company except to the extent that you are acting as
principal underwriter of the Shares of the Funds In connection with purchases or
sales of portfolio securities for the account of a Fund, neither you nor any of
your directors, officers or employees will act as a principal.
8. Limitation of Liability of Adviser. You shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Company in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on your part
in the performance of your duties or from reckless disregard by you of your
obligations and duties under this Agreement.
9. Use of Name. If you cease to act as the Company's investment
adviser, or, in any event, if you so request in writing, the Company agrees to
take all necessary action to change the name of the Company and the Funds to a
name not including the term "First Eagle". You may from
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time to time make available without charge to the Company for its use such marks
or symbols not owned by you, including the logo in the form of a stylized globe
or marks or symbols containing the term "First Eagle" or any variation thereof,
as you may consider appropriate. Any such marks or symbols so made available
will remain your property and you shall have the right, upon notice in writing,
to require the Company to cease the use of such xxxx or symbol at any time.
10. Duration and Termination of this Agreement. This Agreement shall
remain in force until December 31, 2001, and from year to year thereafter with
respect to each Fund, but only so long as such continuance is specifically
approved at least annually by the Board of Directors of the Company with respect
to each Fund or by vote of a majority of the outstanding voting securities of
such Fund. In addition, the Company may not renew or perform this Agreement
unless the terms thereof and any renewal thereof have been approved with respect
to each Fund by the vote of a majority of directors of the Company who are not
interested persons of you or of the Company cast in person at a meeting called
for the purpose of voting on such approval. This Agreement may, on 60 days'
written notice, be terminated with respect to each Fund at any time without the
payment of any penalty, by the Board of Directors of the Company, by vote of a
majority of the outstanding voting securities of the Company, or by you. This
Agreement shall automatically terminate in the event of its assignment. In
interpreting the provisions of this paragraph 9, the definitions contained in
Section 2(a) of the 1940 Act, as amended, and any Rules thereunder (particularly
the definitions of "interested person", "assignment", "voting security" and
"vote of a majority of the outstanding voting securities") shall be applied.
11. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the "party" against which enforcement of the change, waiver,
discharge or termination is sought.
12. Notices. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered or mailed by
registered mail, postage prepaid, to you or to the Company at 1221 Avenue of the
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require, or
to impose any duty upon, either of the parties to do anything in violation of
any applicable laws or regulations.
14. Captions; Counterparts. The captions in this Agreement are included
for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Company, whereupon this letter shall become a binding
contract.
Yours very truly,
FIRST EAGLE SOGEN FUNDS, INC.
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby accepted.
XXXXXXX AND S. BLEICHROEDER ADVISERS, INC.
By:
----------------------------------------
Name:
Title:
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SCHEDULE A
FIRST EAGLE SOGEN FUNDS, INC.
Pursuant to Section 4 of the investment advisory agreement between the
First Eagle SoGen Funds, Inc. and Xxxxxxx and X. Xxxxxxxxxxxx, Inc. ("A&SB
Advisers"), the parties agree that A&SB Advisers shall be paid on a monthly
basis an investment advisory fee at the annual rate for each of the Funds as set
forth below:
First Eagle SoGen Overseas Fund: 0.75 of 1% of the average daily value of the First
Eagle SoGen Overseas Fund's net assets
First Eagle SoGen Gold Fund: 0.75 of 1% of the average daily value of the First
Eagle SoGen Gold Fund's net assets
First Eagle SoGen Money Fund: 0.40 of 1% of the average daily value of the First
Eagle SoGen Money Fund's net assets
First Eagle SoGen Global Fund: 1% of the average daily value of the First Eagle SoGen
Global Fund's net assets on the first $25,000,000 and
0.75% of the average daily value of the First Eagle
SoGen Global Fund's net assets in excess of $25,000,000
IN WITNESS WHEREOF, the undersigned have approved this schedule
effective as of the ___ day of ____________, 1999.
FIRST EAGLE SOGEN FUNDS, INC.
By:
--------------------------------------
Name:
Title:
XXXXXXX AND S. BLEICHROEDER ADVISERS, INC.
By:
--------------------------------------
Name:
Title:
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FIRST EAGLE SOGEN FUNDS, INC.
RULE 12b-1 DISTRIBUTION PLAN AND AGREEMENT
RULE 12b-1 DISTRIBUTION PLAN AND AGREEMENT dated December __, 1999
between FIRST EAGLE SOGEN FUNDS, INC., a Maryland corporation (the "Company"),
and XXXXXXX AND X. XXXXXXXXXXXX, INC., a New York corporation ("A&SB").
The Company is an open-end management investment company and is
registered as such under the Investment Company Act of 1940, as amended (the
"Act"). The Company currently offers shares of four separate portfolios: First
Eagle SoGen Global Fund, First Eagle SoGen Overseas Fund, First Eagle SoGen Gold
Fund and First Eagle SoGen Money Fund. A&SB acts as the principal underwriter of
the Company pursuant to an Underwriting Agreement dated as of December __, 1999.
As permitted by Rule 12b-1 (the "Rule") under the Act, the Company
desires to adopt a Distribution Plan and Agreement (the "Plan") pursuant to
which SoGen Global Fund, SoGen Overseas Fund and SoGen Gold Fund (referred to
herein as "Global Fund," "Overseas Fund" and "Gold Fund" or "the Fund(s)') may
make certain payments to A&SB for expenses incurred in connection with the
distribution of the Class A shares of each of the Funds. The Company's Board of
Directors has determined that there is a reasonable likelihood that the Plan
will benefit each of the Funds and its' shareholders.
Accordingly, the Company hereby adopts this Plan, and the parties
hereto enter into this Plan, on the following terms and conditions:
1. Each of the Funds shall pay A&SB a monthly distribution-related
fee on the first business day of each quarter in such an amount
as A&SB may request, provided that each such payment shall be
based upon the average daily value of each Fund's net assets
attributable to each Fund's Class A shares (as determined on each
business day at the time set forth in each Fund's currently
effective Prospectus for determining net asset value per share)
during the preceding month and shall be calculated at an annual
rate not in excess of 0.25%. For purposes of calculating each
such monthly fee, the value of a Fund's net assets attributable
to Class A shares shall be computed in the manner specified in
that Fund's currently effective Prospectus, Statement of
Additional Information and Articles of Incorporation for the
computation of the value of the Fund's net assets in connection
with the determination of the net asset value of shares of the
Fund, but shall, with respect to Global Fund, exclude from such
calculation that portion of Global Fund's net assets attributable
to shares of Global Fund sold before the effective date of the
Rule 12b-1 Distribution Plan and Agreement relating to SoGen
Global Fund, Inc. dated November 14, 1985 as amended and restated
as of February 4, 1994 or any stock dividends on such shares
whether payable after
B-1
or before such effective date. For purposes of this Plan, a
"business day" is any day the New York Stock Exchange is open for
trading.
2. A&SB shall be obligated to use all amounts received from each
Fund under this Plan for (i) payments to broker-dealers and other
financial intermediaries for their assistance in the distribution
of the Fund's Class A shares and (ii) otherwise promoting the
sale of the Fund's Class A shares, such as by paying for the
printing and distribution of Prospectuses sent to prospective
investors, the preparation, printing and distribution of sales
literature and the expenses associated with media advertisements
and telephone correspondence. No broker-dealer shall receive
payments under the Plan which, on an annualized basis, exceed
0.25% of net asset value of Fund Class A accounts originated by
the broker-dealer. All other agreements relating to the
implementation of this Plan (the "related agreements") shall be
in writing, and such agreements shall be subject to termination,
without penalty, on not more than sixty days' written notice to
any other party to the agreement, in accordance with the
provisions of clauses (a) and (b) of paragraph 6 hereof.
3. This Plan shall become effective only after approval by (a) a
majority of the Board of Directors of each Fund, including a
majority of the Directors who are not "interested persons" (as
defined in the Act) of the Fund and who have no direct or
indirect financial interest in the operation of the Plan or in
any related agreements (the "Independent Directors"), pursuant to
a vote cast in person at a meeting called for the purpose of
voting on the Plan, and (b) the holders of a majority of the
outstanding voting securities of each class of shares of that
Fund (as defined in the Act). Related agreements shall be subject
to approval by the Company's Directors in the manner provided in
clause (a) of the preceding sentence.
4. This Plan and any related agreements shall continue in effect
with respect to a Fund for a period of more than one year from
the date of their adoption or execution only so long as such
continuance is approved at least annually by a majority of the
Board of Directors of the Company, including a majority of
Independent Directors, pursuant to a vote cast in person at a
meeting called for the purpose of voting on the continuance of
this Plan and any related agreements.
5. This Plan may be amended at any time with respect to a Fund with
the approval of a majority of the Board of Directors of the
Company, provided that (a) any material amendment of this Plan
must be approved by the Company's Directors in accordance with
procedures set forth in paragraph 4 hereof, and (b) any amendment
to increase materially the amount to be expended by a Fund
pursuant to this Plan must also be approved by the vote of the
holders of a majority of the
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outstanding voting securities of each affected class of shares of
that Fund (as defined in the Act).
6. This Plan may be terminated with respect to a class or a Fund at
any time, without the payment of any penalty, by (a) the vote of
a majority of the Board of Directors of the Company, (b) the vote
of a majority of the Independent Directors or (c) the vote of the
holders of a majority of the outstanding voting securities of
each affected class of shares of that Fund (as defined in the
Act).
7. While this Plan is in effect, the selection and nomination of the
Directors who are not "interested persons" of the Company (as
defined in the Act) shall be committed to the discretion of the
Directors then in office who are not "interested persons" of the
Company.
8. To the extent that this Plan constitutes a plan of distribution
adopted pursuant to the Rule, it shall remain in effect as such
so as to authorize the use of a Fund's assets in the amounts and
for the purposes set forth herein, notwithstanding the occurrence
of the Plan's assignment (as defined in the Act). To the extent
this Plan concurrently constitutes an agreement relating to the
implementation of the plan of distribution, it shall terminate
automatically in the event if its assignment, and a Fund may
continue to make payments pursuant to this Plan only (a) upon the
approval of the Board of Directors in accordance with the
procedures set forth in paragraph 4 hereof, and (b) if the
obligations of A&SB under this Plan are to be performed by any
organization other than A&SB, upon such organization's adoption
and assumption in writing of all provisions of this Plan as a
party hereto.
9. A&SB shall give the Company the benefit of A&SB's best judgment
and efforts in rendering services under this Plan. As an
inducement to A&SB's undertaking to render these services, the
Company agrees that A&SB shall not be liable under this Plan for
any mistakes in judgment or in any other event whatsoever except
for lack of good faith, provided that nothing in this Plan shall
be deemed to protect or purport to protect A&SB against any
liability to the Company or its stockholders to which A&SB would
otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of A&SB's duties under
this Plan or by reason of A&SB's reckless disregard of its
obligation and duties hereunder.
10. A&SB may also make payments out of its own funds for costs and
expenses associated with the distribution and sale of a Fund's
Class A shares, including payments to the persons and for the
purposes set forth in Section 2 hereof.
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11. A&SB shall prepare and furnish to the Company's Board of
Directors, and the Company's Board of Directors shall review at
least quarterly, a written report setting forth all amounts
expended pursuant to this Plan and any related agreements and the
purposes for which such expenditures were made.
12. The Company shall preserve copies of this Plan, any related
agreements and any reports made pursuant to this Plan for a
period of not less than six years from the date of this Plan or
any such related agreement or report. For the first two years,
copies of such documents shall be preserved in an easily
accessible place.
13. The provisions of this Plan are severable for each class of
shares and each Fund and if provisions of the Plan applicable to
a particular class or Fund are terminated, the remainder of the
Plan provisions applicable to the other remaining classes or
Funds shall not be invalidated thereby and shall be given full
force and effect.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and on its behalf by its duly authorized representatives
as of the date first above written.
FIRST EAGLE SOGEN FUNDS, INC.
By:
------------------------------
Name:
Title:
XXXXXXX AND X. XXXXXXXXXXXX, INC.
By:
-------------------------------
Name:
Title:
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FIRST EAGLE SOGEN FUNDS, INC.
RULE 12b-1 DISTRIBUTION PLAN AND AGREEMENT
RULE 12b-1 DISTRIBUTION PLAN AND AGREEMENT dated December __, 1999
between FIRST EAGLE SOGEN FUNDS, INC., a Maryland corporation (the "Company"),
and XXXXXXX AND S. BLEICHROEDER, INC., a New York corporation ("A&SB").
The Company is an open-end management investment company and is
registered as such under the Investment Company Act of 1940, as amended (the
"Act"). The Company currently offers shares of four separate portfolios: First
Eagle SoGen Global Fund, First Eagle SoGen Overseas Fund, First Eagle SoGen Gold
Fund and First Eagle SoGen Money Fund. A&SB acts as the principal underwriter of
the Company pursuant to an Underwriting Agreement dated as of December __, 1999.
As permitted by Rule 12b-1 (the "Rule") under the Act, the Company
desires to adopt a Distribution Plan and Agreement (the "Plan") pursuant to
which SoGen Global Fund, SoGen Overseas Fund and SoGen Gold Fund (referred to
herein as "Global Fund," "Overseas Fund" and "Gold Fund" or "the Fund(s)') may
make certain payments to A&SB for expenses incurred in connection with the
distribution of the Class A shares of each of the Funds. The Company's Board of
Directors has determined that there is a reasonable likelihood that the Plan
will benefit each of the Funds and its' shareholders.
Accordingly, the Company hereby adopts this Plan, and the parties
hereto enter into this Plan, on the following terms and conditions:
1. Each of the Funds shall pay A&SB a monthly distribution-related
fee on the first business day of each quarter in such an amount
as A&SB may request, provided that each such payment shall be
based upon the average daily value of each Fund's net assets
attributable to each Fund's Class A shares (as determined on each
business day at the time set forth in each Fund's currently
effective Prospectus for determining net asset value per share)
during the preceding month and shall be calculated at an annual
rate not in excess of 0.25%. For purposes of calculating each
such monthly fee, the value of a Fund's net assets attributable
to Class A shares shall be computed in the manner specified in
that Fund's currently effective Prospectus, Statement of
Additional Information and Articles of Incorporation for the
computation of the value of the Fund's net assets in connection
with the determination of the net asset value of shares of the
Fund, but shall, with respect to Global Fund, exclude from such
calculation that portion of Global Fund's net assets attributable
to shares of Global Fund sold before the effective date of the
Rule 12b-1 Distribution Plan and Agreement relating to SoGen
Global Fund, Inc. dated November 14, 1985 as amended and restated
as of February 4, 1994 or any stock dividends on such shares
whether payable after
B-5
or before such effective date. For purposes of this Plan, a
"business day" is any day the New York Stock Exchange is open for
trading.
2. A&SB shall be obligated to use all amounts received from each
Fund under this Plan for (i) payments to broker-dealers and other
financial intermediaries for their assistance in the distribution
of the Fund's Class A shares and (ii) otherwise promoting the
sale of the Fund's Class A shares, such as by paying for the
printing and distribution of Prospectuses sent to prospective
investors, the preparation, printing and distribution of sales
literature and the expenses associated with media advertisements
and telephone correspondence. No broker-dealer shall receive
payments under the Plan which, on an annualized basis, exceed
0.25% of net asset value of Fund Class A accounts originated by
the broker-dealer. All other agreements relating to the
implementation of this Plan (the "related agreements") shall be
in writing, and such agreements shall be subject to termination,
without penalty, on not more than sixty days' written notice to
any other party to the agreement, in accordance with the
provisions of clauses (a) and (b) of paragraph 6 hereof.
3. This Plan shall become effective only after approval by (a) a
majority of the Board of Directors of each Fund, including a
majority of the Directors who are not "interested persons" (as
defined in the Act) of the Fund and who have no direct or
indirect financial interest in the operation of the Plan or in
any related agreements (the "Independent Directors"), pursuant to
a vote cast in person at a meeting called for the purpose of
voting on the Plan, and (b) the holders of a majority of the
outstanding voting securities of each class of shares of that
Fund (as defined in the Act). Related agreements shall be subject
to approval by the Company's Directors in the manner provided in
clause (a) of the preceding sentence.
4. This Plan and any related agreements shall continue in effect
with respect to a Fund for a period of more than one year from
the date of their adoption or execution only so long as such
continuance is approved at least annually by a majority of the
Board of Directors of the Company, including a majority of
Independent Directors, pursuant to a vote cast in person at a
meeting called for the purpose of voting on the continuance of
this Plan and any related agreements.
5. This Plan may be amended at any time with respect to a Fund with
the approval of a majority of the Board of Directors of the
Company, provided that (a) any material amendment of this Plan
must be approved by the Company's Directors in accordance with
procedures set forth in paragraph 4 hereof, and (b) any amendment
to increase materially the amount to be expended by a Fund
pursuant to this Plan must also be approved by the vote of the
holders of a majority of the
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outstanding voting securities of each affected class of shares of
that Fund (as defined in the Act).
6. This Plan may be terminated with respect to a class or a Fund at
any time, without the payment of any penalty, by (a) the vote of
a majority of the Board of Directors of the Company, (b) the vote
of a majority of the Independent Directors or (c) the vote of the
holders of a majority of the outstanding voting securities of
each affected class of shares of that Fund (as defined in the
Act).
7. While this Plan is in effect, the selection and nomination of the
Directors who are not "interested persons" of the Company (as
defined in the Act) shall be committed to the discretion of the
Directors then in office who are not "interested persons" of the
Company.
8. To the extent that this Plan constitutes a plan of distribution
adopted pursuant to the Rule, it shall remain in effect as such
so as to authorize the use of a Fund's assets in the amounts and
for the purposes set forth herein, notwithstanding the occurrence
of the Plan's assignment (as defined in the Act). To the extent
this Plan concurrently constitutes an agreement relating to the
implementation of the plan of distribution, it shall terminate
automatically in the event if its assignment, and a Fund may
continue to make payments pursuant to this Plan only (a) upon the
approval of the Board of Directors in accordance with the
procedures set forth in paragraph 4 hereof, and (b) if the
obligations of A&SB under this Plan are to be performed by any
organization other than A&SB, upon such organization's adoption
and assumption in writing of all provisions of this Plan as a
party hereto.
9. A&SB shall give the Company the benefit of A&SB's best judgment
and efforts in rendering services under this Plan. As an
inducement to A&SB's undertaking to render these services, the
Company agrees that A&SB shall not be liable under this Plan for
any mistakes in judgment or in any other event whatsoever except
for lack of good faith, provided that nothing in this Plan shall
be deemed to protect or purport to protect A&SB against any
liability to the Company or its stockholders to which A&SB would
otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of A&SB's duties under
this Plan or by reason of A&SB's reckless disregard of its
obligation and duties hereunder.
10. A&SB may also make payments out of its own funds for costs and
expenses associated with the distribution and sale of a Fund's
Class A shares, including payments to the persons and for the
purposes set forth in Section 2 hereof.
B-7
11. A&SB shall prepare and furnish to the Company's Board of
Directors, and the Company's Board of Directors shall review at
least quarterly, a written report setting forth all amounts
expended pursuant to this Plan and any related agreements and the
purposes for which such expenditures were made.
12. The Company shall preserve copies of this Plan, any related
agreements and any reports made pursuant to this Plan for a
period of not less than six years from the date of this Plan or
any such related agreement or report. For the first two years,
copies of such documents shall be preserved in an easily
accessible place.
13. The provisions of this Plan are severable for each class of
shares and each Fund and if provisions of the Plan applicable to
a particular class or Fund are terminated, the remainder of the
Plan provisions applicable to the other remaining classes or
Funds shall not be invalidated thereby and shall be given full
force and effect.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and on its behalf by its duly authorized representatives
as of the date first above written.
FIRST EAGLE SOGEN FUNDS, INC.
By:
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Name:
Title:
XXXXXXX AND X. XXXXXXXXXXXX, INC.
By:
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Name:
Title:
B-8
