As filed with the Securities and Exchange Commission on October 1, 1997
File No. 333-______
811-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 /X/
Pre-Effective Amendment No. / /
Post-Effective Amendment No. / /
and/or
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 /X/
Amendment No. / /
THE MARSICO INVESTMENT FUND
(Exact Name of Registrant as Specified in Charter)
1200 17th Street, Suite 1300
Denver, CO 80202
(Address of Principal Executive Office) (Zip Code)
Registrant's Telephone Number, including Area Code: (303) 436-1300
-------------------------------------
Barbara M. Japha, Esq.
The Marsico Investment Fund
1200 17th Street, Suite 1300
Denver, CO 80202
(Name and address of agent for service of process)
Copies to:
Sander M. Bieber, Esq.
Dechert Price & Rhoads
1500 K Street, N.W.
Washington, D.C. 20005
------------------------------------
Registrant elects to register an indefinite number of shares of beneficial
interest under the Securities Act of 1933 pursuant to Rule 24f-2 and under the
Investment Company Act of 1940. Registrant intends to file the notice required
by Rule 24f-2 with respect to its fiscal year ending December 31, 1997 on or
before February 28, 1998.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
<PAGE>
The Marsico Investment Fund
CROSS REFERENCE SHEET
(as required by 495(a))
N-1A Item Caption in Prospectus
PART A: INFORMATION REQUIRED IN A PROSPECTUS
<TABLE>
<S> <C> <C>
Item 1. Cover Page Cover Page
Item 2. Synopsis Expense Summary
Item 3. Condensed Financial Information Supplement to Prospectus
Item 4. General Description of Registrant Overview of the Fund; Risk Factors
Item 5. Management of the Fund Management of the Trust; Service and Distribution Plan;
Custodian and Transfer and Dividend Disbursing Agent
Item 5A. Management's Discussion of Fund To be included in the Annual Report of the Registrant.
Performance
Item 6. Capital Stock and Other Securities Shareholder Services; Dividends and Distributions; Taxes;
Capital Structure; Information for Shareholders
Item 7. Purchase of Securities Being Offered Investing in the Funds; How to Purchase the Shares of the
Funds
Item 8. Redemption or Repurchase How to Sell (Redeem) Shares of the Funds
Item 9. Pending Legal Proceedings Not Applicable
PART B: INFORMATION REQUIRED IN A STATEMENT OF ADDITIONAL INFORMATION
Caption in
Prospectus or Statement of
Additional Information
Item 10. Cover Page Cover Page
Item 11. Table of Contents Table of Contents
Item 12. General Information and History Not Applicable
Item 13. Investment Objectives and Policies Investment Objectives and Policies
Item 14. Management of the Fund Trustees and Officers
Caption in
Prospectus or Statement of
Additional Information
N-1A Item
Item 15. Control Persons and Principal Trustees and Officers
Holders of Securities
Item 16. Investment Advisory and Other Management of the Fund; Service and Distribution Plan;
Services Custodian and Transfer and Dividend Disbursing Agent;
Counsel and Independent Auditors; Investment Advisory and
Other Services; Distribution Plan; Counsel & Independent
Certified Accountants
Item 17. Brokerage Allocation and Other Portfolio Turnover; Portfolio Transactions and Brokerage
Practices
Item 18. Capital Stock and Other Securities Capital Structure
Item 19. Purchase, Redemption and Pricing of Investing in the Funds; How to Purchase Shares of the
Securities Being Offered Funds; Share Price and Determination of Net Asset Value
Item 20. Tax Status Tax Status
Item 21. Underwriters Not Applicable
Item 22. Calculation of Performance Data Performance Information; Fund Performance
Item 23. Financial Statements Financial Statements
</TABLE>
<PAGE>
SUBJECT TO COMPLETION - DATED __________________
The Marsico Investment Fund
The Marsico Focus Fund
The Marsico Growth & Income Fund
1200 17th Street
Suite 1300
Denver, Colorado 80202
_____________, 1997
PROSPECTUS
The Marsico Investment Fund (the "Trust") is an open-end investment company (a
mutual fund) that currently offers two investment portfolios, The Marsico Focus
Fund and The Marsico Growth & Income Fund (collectively, the "Funds").
The Marsico Focus Fund (the "Focus Fund") is a non-diversified fund that seeks
long-term growth of capital by normally concentrating its investments in a core
position of 20-30 common stocks.
The Marsico Growth and Income Fund (the "Growth & Income Fund") is a diversified
fund that seeks long-term growth of capital with a limited emphasis on income.
Although the Growth & Income Fund normally invests at least 25% of its assets in
securities that have income potential, it emphasizes equity securities selected
for their growth potential.
Marsico Capital Management, LLC (the "Adviser") serves as the investment adviser
to the Funds. Thomas F. Marsico, President and Chief Executive Officer of the
Adviser, manages the investment program of the Funds.
The Focus Fund is designed for long-term investors who seek growth of capital
and who can tolerate the greater risks associated with investments in common
stocks. The Focus Fund is not designed as a short-term trading vehicle and
should not be relied upon for short-term financial needs.
The Growth & Income Fund is designed for long-term investors who seek growth of
capital with a limited emphasis on income. The Growth & Income Fund is not
designed for investors who desire a consistent level of income nor is it a
short-term trading vehicle and should not be relied upon for short-term
financial needs.
This Prospectus describes concisely the information about the Funds that you
ought to know before investing. Please read it carefully and retain it for
future reference.
More information about the Funds is contained in a Statement of Additional
Information that has been filed with the Securities and Exchange Commission. To
obtain a free copy, call (303) 436-1300. The Statement of Additional
Information, which may be revised from time-to-time, is dated ____________, 1997
and is hereby incorporated by reference into this Prospectus.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF SUCH STATE.
<PAGE>
TABLE OF CONTENTS
Expense Summary...............................................................4
Overview of the Funds.........................................................6
Risk Factors..................................................................10
Management of the Trust.......................................................13
Portfolio Transactions and Brokerage..........................................15
Investing in the Funds........................................................15
How to Purchase Shares of the Funds...........................................16
How to Sell (Redeem) Shares of the Funds......................................18
Shareholder Services..........................................................20
Service and Distribution Plan.................................................21
Dividends and Distributions...................................................21
Taxes.........................................................................22
Fund Performance..............................................................22
Share Price and Determination
of Net Asset Value.......................................................23
Capital Structure.............................................................24
Counsel and Independent Certified
Public Accounts..........................................................24
Custodian and Transfer and
Dividend Disbursing Agent................................................24
Information for Shareholders..................................................24
<PAGE>
EXPENSE SUMMARY
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Shareholder Transaction Expenses are charges that you pay when buying or selling
shares of the Funds. Annual Fund Operating Expenses are paid out of the Funds'
assets and include fees for portfolio management, maintenance of shareholder
accounts, general administration of the Funds, shareholder servicing, accounting
and other services.
The following table sets forth certain costs and expenses that an investor is
expected to incur either directly or indirectly as a shareholder of the Funds
based on estimated operating expenses for the current fiscal year.
SHAREHOLDER TRANSACTION EXPENSES
Focus Fund Growth & Income Fund
Maximum Sales Load Imposed on Purchases None None
Maximum Sales Load Imposed on Reinvested None None
Dividends
Deferred Sales Load None None
Redemption Fees [(a)] None None
Exchange Fees [(a)] None None
ANNUAL FUND OPERATING EXPENSES
(AS A PERCENTAGE OF AVERAGE NET ASSETS)
Focus Fund Growth & Income Fund
Management Fees ____% ____%
12b-1 Fees (b) 0.25% 0.25%
Other Expenses (after reimbursement) (c) ____% ____%
Total Fund Operating Expenses (after expense ____% ____%
reimbursement) [(d)]
EXAMPLE
The following example demonstrates the projected dollar amount of total
cumulative expenses that would be incurred over various periods with respect to
a hypothetical investment in the Funds. These amounts are based on payment by
the Funds of operating expenses at the levels set forth in the above table, and
are also based on the following assumptions:
An investor would pay the following expenses on a $1,000 investment, assuming
(i) a hypothetical 5% annual return and (ii) redemption at the end of the
following time periods:
One Year Three Years
Focus Fund _______ _______
Growth & Income Fund _______ _______
<PAGE>
Please note that the above example is an estimate of the expenses to be incurred
by shareholders of the Funds. Actual expenses may be higher or lower than those
reflected above.
(a) A fee of $____ is charged for each wire redemption, and a fee of $____ is
charged for each exchange requested by telephone.
(b) The maximum level of distribution expenses is 0.25% per annum of each
Fund's average net assets. See "Service and Distribution Plan" on page
____ for further details. The distribution expenses for long-term
shareholders may total more than the maximum sales charge that would have
been permissible if imposed entirely as an initial sales charge.
(c) Such expenses include custodian, transfer agency and administration fees
and other customary Fund expenses.
(d) The Adviser has voluntarily agreed to limit the total expenses of each
Fund (excluding interest, taxes, brokerage and extraordinary expenses) to
an annual rate of ____% of the Focus Fund's average net assets and ____%
of the Growth & Income Fund's average net assets until __________. After
such date, the expense limitations may be terminated or revised at any
time.
The purpose of the preceding table is to assist investors in understanding the
various costs and expenses that an investor in the Funds will bear, directly or
indirectly. The preceding example should not be considered representative of
past or future investment returns and operating expenses which may be more or
less than those shown.
<PAGE>
OVERVIEW OF THE FUNDS
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This section takes a closer look at each Funds' investment objective, policies
and the securities in which it invests. Please carefully review the "Risk
Factors" section of this Prospectus for a more detailed discussion of the risks
associated with certain investment techniques and refer to Appendix A for a more
detailed description of investment terms used throughout this Prospectus. You
should carefully consider your own investment goals, time horizon and risk
tolerance before investing in the Funds.
Policies that are noted as "fundamental" cannot be changed without a shareholder
vote. All other policies, including the Funds' investment objectives, are not
fundamental and may be changed by the Trustees of the Trust (the "Trustees")
without a shareholder vote. You will be notified of any such changes that are
material. If there is a material change in the Funds' objectives or policies,
you should consider whether either Fund remains an appropriate investment for
you.
THE FOCUS FUND
INVESTMENT OBJECTIVE
The investment objective of the Focus Fund is long-term growth of capital. It is
a non-diversified fund that pursues its objective by normally concentrating its
investments in a core position of 20-30 common stocks.
TYPES OF INVESTMENTS
The Focus Fund invests primarily in common stocks selected for their growth
potential. The Focus Fund may invest to a lesser degree in other types of
securities, including preferred stock, warrants, convertible securities and debt
securities. The portfolio manager generally takes a "bottom up" approach to
building the portfolio. In other words, the portfolio manager seeks to identify
individual companies with earnings growth potential that may not be recognized
by the market at large. Although themes may emerge in the Focus Fund, securities
are generally selected without regard to any defined industry sector or other
similarly defined selection procedure. Realization of income is not a
significant investment consideration. Any income realized on the Focus Fund's
investments will be incidental to its objective.
The Focus Fund may also invest up to 25% of its assets in mortgage- and
asset-backed securities, up to 10% of its assets in zero coupon, pay-in-kind and
step coupon securities, and without limit in indexed/structured securities. The
Focus Fund will invest less than 35% of its assets in high-yield/high-risk
securities. The Focus Fund may also purchase high-grade commercial paper,
certificates of deposit, and repurchase agreements. Such securities may offer
growth potential because of anticipated changes in interest rates, credit
standing, currency relationships or other factors. The Focus Fund may also
invest in short-term debt securities as a means of receiving a return on idle
cash.
When the Focus Fund's portfolio manager believes that market conditions are not
favorable for profitable investing or when the portfolio manager is otherwise
unable to identify favorable investment opportunities, the Focus Fund's
investments may be hedged to a greater degree and/or its cash or similar
investments may increase. In other words, the Focus Fund does not always stay
fully invested in stocks and bonds. Cash or similar investments are a residual -
they represent the assets that remain after the portfolio manager has committed
available assets to desirable investment opportunities. When the Focus Fund's
cash position increases, it may not participate in stock market advances or
declines to the extent that it would if it remained more fully invested in
common stocks.
The Focus Fund may invest without limit in foreign equity and debt securities.
The Focus Fund may invest directly in foreign securities denominated in a
foreign currency and not publicly traded in the United States. Other ways of
investing in foreign securities include depositary receipts or shares, and
<PAGE>
passive foreign investment companies. Foreign securities are generally selected
on a stock-by-stock basis without regard to any defined allocation among
countries or geographic regions. However, certain factors such as expected
levels of inflation, government policies influencing business conditions, the
outlook for currency relationships, and prospects for economic growth among
countries, regions or geographic areas may warrant greater consideration in
selecting foreign securities. See "Risk Factors" on page __. The Focus Fund may
use options, futures, forward currency contracts, and other types of derivatives
for hedging purposes or for non-hedging purposes such as seeking to enhance
return. See "Risk Factors" on page __. The Focus Fund may purchase securities on
a when-issued, delayed delivery or forward commitment basis.
INVESTMENT POLICIES
In investing its assets, the Focus Fund will follow the general policies listed
below. The percentage limitations included in these policies and elsewhere in
this Prospectus apply only at the time of purchase of the security. For example,
if the Focus Fund exceeds a limit as a result of market fluctuations or the sale
of other securities, it will not be required to dispose of any securities.
Classification. The Investment Company Act of 1940, as amended (the "1940 Act")
classifies investment companies as either diversified or non-diversified. The
Fund is deemed to be a non-diversified fund under the 1940 Act, however, the
Fund has adopted the following requirements as operating policies:
- -- The Focus Fund may not own more than 10% of the outstanding voting shares
of any issuer.
- -- With respect to 50% of its total assets, the Focus Fund will not purchase a
security of any issuer (other than cash items and U.S. government
securities, as defined in the 1940 Act) if such purchase would cause the
Focus Fund's holdings of that issuer to amount to more than 5% of the
Fund's total assets.
- -- The Focus Fund will invest no more than 25% of its total assets in a single
issuer (other than U.S. government securities).
- -- The Focus Fund reserves the right to become a diversified fund by limiting
the investments in which more than 5% of its total assets are invested.
A non-diversified fund has the ability to take larger positions in a smaller
number of issuers. Because the appreciation or depreciation of a single stock
may have a greater impact on the net asset value of a non-diversified fund, its
share price can be expected to fluctuate more than a comparable diversified
fund.
Industry Concentration. As a fundamental policy, the Focus Fund will not invest
25% or more of its total assets in any particular industry (excluding U.S.
government securities).
Portfolio Turnover. The Focus Fund generally intends to purchase securities for
long-term investment rather than short-term gains. However, short-term
transactions may result from liquidity needs, securities having reached a price
or yield objective, changes in interest rates or the credit standing of an
issuer, or by reason of economic or other developments not foreseen at the time
of the investment decision. Changes are made in the Focus Fund's portfolio
whenever its portfolio manager believes such changes are desirable. Portfolio
turnover rates are generally not a factor in making buy and sell decisions.
To a limited extent, the Focus Fund may purchase securities in anticipation of
relatively short-term price gains. The Focus Fund may also sell one security and
simultaneously purchase the same or a comparable security to take advantage of
short-term differentials in bond yields or securities prices. Increased
portfolio turnover may result in higher costs for brokerage commissions, dealer
mark-ups and other transaction costs and may also result in taxable capital
gains.
Illiquid Investments. The Focus Fund may invest up to 15% of its net assets in
illiquid investments, including restricted securities or private placements that
<PAGE>
are not deemed to be liquid by the Advisor. An illiquid investment is a security
or other position that cannot be disposed of quickly in the normal course of
business. Some securities cannot be sold to the U.S. public because of their
terms or because of SEC regulations. The Advisor will follow guidelines
established by the Trustees in making liquidity determinations for Rule 144A
securities and other securities, including privately placed commercial paper.
Borrowing and Lending. The Focus Fund may borrow money and lend securities or
other assets, as follows:
- -- As a fundamental policy, the Focus Fund may borrow money for temporary or
emergency purposes in amounts up to 33-1/3% of its total assets.
- -- The Focus Fund may mortgage or pledge securities as security for borrowings
in amounts up to 15% of its net assets.
- -- As a fundamental policy, the Focus Fund may lend securities or other assets
if, as a result, no more than 25% of its total assets would be lent to
other parties.
Please refer to the Statement of Additional Information for other fundamental
and non-fundamental policies of the Focus Fund.
THE GROWTH & INCOME FUND
INVESTMENT OBJECTIVE
The investment objective of the Growth & Income Fund is long-term capital growth
and current income. The Fund is a diversified fund. Under normal circumstances,
the Fund pursues its objective by investing up to 75% of its assets in equity
securities selected primarily for their growth potential and at least 25% of its
assets in securities that have income potential. The Growth & Income Fund
normally emphasizes the growth component. However, in unusual circumstances, the
Growth & Income Fund may reduce the growth component of its portfolio to 25% of
its assets.
TYPES OF INVESTMENTS
The Growth & Income Fund may invest in any combination of common stock,
preferred stock, warrants, convertible securities and debt securities. However,
it is expected that the Growth & Income Fund will emphasize investments in
common stocks. The Growth & Income Fund may shift assets between the growth and
income components of its portfolio based on the portfolio manager's analysis of
relevant market, financial and economic conditions. If the portfolio manager
believes that growth securities will provide better returns than the yields then
available or expected on income-producing securities, then the Growth & Income
Fund will place a greater emphasis on the growth component. The portfolio
manager generally takes a "bottom up" approach to building the portfolio. In
other words, he seeks to identify individual companies with earnings growth
potential that may not be recognized by the market at large. Although themes may
emerge in the Growth & Income Fund, securities are generally selected without
regard to any defined industry sector or other similarly defined selection
procedure.
Because income is a part of the investment objective of the Growth & Income
Fund, the portfolio manager may also consider dividend-paying characteristics in
selecting equity securities for the Growth & Income Fund. The Growth & Income
Fund may also find opportunities for capital growth from debt securities because
of anticipated changes in interest rates, credit standing, currency
relationships or other factors. Investors in the Growth & Income Fund should
keep in mind that the Fund is not designed to produce a consistent level of
income.
The Growth & Income Fund may also invest up to 25% of its assets in mortgage-
and asset-backed securities, up to 10% of its assets in zero coupon, pay-in-kind
and step coupon securities, and without limit in indexed/structured securities.
The Growth & Income Fund will invest less than 35% of its assets in
<PAGE>
high-yield/high-risk securities. The Growth & Income Fund may also purchase
high-grade commercial paper, certificates of deposit, and repurchase agreements.
The Growth & Income Fund may also invest in short-term debt securities as a
means of receiving a return on idle cash.
When the Growth & Income Fund's portfolio manager believes that market
conditions are not favorable for profitable investing or when the portfolio
manager is otherwise unable to locate favorable investment opportunities, the
Growth & Income Fund's investments may be hedged to a greater degree and/or its
cash or similar investments may increase. In other words, the Growth & Income
Fund does not always stay fully invested in stocks and bonds. Cash or similar
investments are a residual -- they represent the assets that remain after the
portfolio manager has committed available assets to desirable investment
opportunities. When the Growth & Income Fund's cash position increases, it may
not participate in stock market advances or declines to the extent that it would
if it remained more fully invested in common stocks.
The Growth & Income Fund may invest without limit in foreign equity and debt
securities. The Growth & Income Fund may invest directly in foreign securities
denominated in a foreign currency and not publicly traded in the United States.
Other ways of investing in foreign securities include depositary receipts or
shares, and passive foreign investment companies. Foreign securities are
generally selected on a company-by-company basis without regard to any defined
allocation among countries or geographic regions. However, certain factors such
as expected levels of inflation, government policies influencing business
conditions, the outlook for currency relationships, and prospects for economic
growth among countries, regions or geographic areas may warrant greater
consideration in selecting foreign securities. See "Risk Factors" on page __.
The Growth & Income Fund may use options, futures, forward currency contracts
and other types of derivatives for hedging purposes or for non-hedging purposes
such as seeking to enhance return. See "Risk Factors" on page __. The Fund may
purchase securities on a when-issued, delayed delivery or forward commitment
basis.
INVESTMENT POLICIES
In investing its portfolio assets, the Growth & Income Fund will follow the
general policies listed below. The percentage limitations included in these
policies and elsewhere in this Prospectus apply at the time of purchase of the
security. For example, if the Growth & Income Fund exceeds a limit as a result
of market fluctuations or the sale of other securities, it will not be required
to dispose of any securities.
Classification. The Growth & Income Fund qualifies as a diversified fund under
the 1940 Act and is subject to the following requirements:
- -- As a fundamental policy, the Growth & Income Fund may not own more than 10%
of the outstanding voting shares of any issuer.
- -- As a fundamental policy, with respect to 75% of its total assets, the
Growth & Income Fund will not purchase a security of any issuer (other than
cash items and U.S. government securities, as defined in the 1940 Act) if
such purchase would cause the Growth & Income Fund's holdings of that
issuer to amount to more than 5% of the Growth & Income Fund's total
assets.
- -- The Growth & Income Fund will invest no more than 25% of its total assets
in a single issuer (other than U.S. government securities).
Industry Concentration. As a fundamental policy, the Growth & Income Fund will
not invest 25% or more of its total assets in any particular industry (excluding
U.S. government securities).
Portfolio Turnover. The Growth & Income Fund generally intends to purchase
securities for long-term investment rather than short-term gains. However,
short-term transactions may result from liquidity needs, securities having
reached a price or yield objective, changes in interest rates or the credit
<PAGE>
standing of an issuer, or by reason of economic or other developments not
foreseen at the time of the investment decision. Changes are made in the Growth
& Income Fund's portfolio whenever its portfolio manager believes such changes
are desirable. Portfolio turnover rates are generally not a factor in making buy
and sell decisions.
To a limited extent, the Growth & Income Fund may purchase securities in
anticipation of relatively short-term price gains. The Growth & Income Fund may
also sell one security and simultaneously purchase the same or a comparable
security to take advantage of short-term differentials in bond yields or
securities prices. Increased portfolio turnover may result in higher costs for
brokerage commissions, dealer mark-ups and other transaction costs and may also
result in taxable capital gains.
Illiquid Investments. The Growth & Income Fund may invest up to 15% of its net
assets in illiquid investments, including restricted securities or private
placements that are not deemed to be liquid by the Advisor. An illiquid
investment is a security or other position that cannot be disposed of quickly in
the normal course of business. Some securities cannot be sold to the U.S. public
because of their terms or because of SEC regulations. The Adviser will follow
guidelines established by the Trustees in making liquidity determinations for
Rule 144A securities and other securities, including privately placed commercial
paper.
Borrowing and Lending. The Growth & Income Fund may borrow money and lend
securities or other assets, as follows:
- -- As a fundamental policy, the Growth & Income Fund may borrow money for
temporary or emergency purposes in amounts up to 33-1/3% of its total
assets.
- -- The Growth & Income Fund may mortgage or pledge securities as security for
borrowings in amounts up to 15% of its net assets.
- -- As a fundamental policy, the Growth & Income Fund may lend securities or
other assets if, as a result, no more than 25% of its total assets would be
lent to other parties.
A complete list of the Funds' objectives, policies and restrictions, both
fundamental and non-fundamental, is set forth in the Statement of Additional
Information. In order to provide a degree of flexibility, the Funds' investment
objectives, as well as other policies which are not deemed fundamental, may be
modified by the Board of Trustees without shareholder approval. Any change in
the Funds' investment objectives may result in the Funds having investment
objectives different from the objectives which the shareholder considered
appropriate at the time of investment in the Funds. However, the Funds will not
change any of their investment objectives, policies or investment restrictions
without written notice to shareholders sent at least 30 days in advance of any
such change.
RISK FACTORS
- --------------------------------------------------------------------------------
Investing in Common Stocks. The fundamental risk associated with any common
stock fund is the risk that the value of the stocks it holds might decrease.
Stock values may fluctuate in response to the activities of an individual
company or in response to general market and/or economic conditions.
Historically, common stocks have provided greater long-term returns and have
entailed greater short-term risks than other investment choices. Smaller or
newer issuers are more likely to realize more substantial growth as well as
suffer more significant losses than larger or more established issuers.
Investments in such companies can be both more volatile and more speculative.
Special Situations. The Funds may invest in "special situations" from time to
time. A special situation arises when, in the opinion of the Funds' portfolio
manager, the securities of a particular issuer will be recognized and appreciate
in value due to a specific development with respect to that issuer. Developments
creating a special situation might include, among others, a new product or
<PAGE>
process, a technological breakthrough, a management change or other
extraordinary corporate event, or differences in market supply of and demand for
the security. Investment in special situations may carry an additional risk of
loss in the event that the anticipated development does not occur or does not
attract the expected attention.
Foreign Securities. Investments in foreign securities, including those of
foreign governments, may involve greater risks than investing in comparable
domestic securities.
Securities of some foreign companies and governments may be traded in the United
States, but most foreign securities are traded primarily in foreign markets. The
risks of foreign investing include:
- -- Currency Risk. The Fund may buy the local currency when it buys a foreign
currency denominated security and sell the local currency when it sells the
security. As long as the Fund holds a foreign security, its value will be
affected by the value of the local currency relative to the U.S. dollar.
When the Fund sells a foreign denominated security, its value may be worth
less in U.S. dollars even though the security increases in value in its
home country. U.S. dollar denominated securities of foreign issuers may
also be affected by currency risk.
- -- Political and Economic Risk. Foreign investments may be subject to
heightened political and economic risks, particularly in underdeveloped or
developing countries which may have relatively unstable governments and
economies based on only a few industries. In some countries, there is the
risk that the government may take over the assets or operations of a
company or that the government may impose taxes or limits on the removal
of the Fund's assets from that country. The Fund may invest in emerging
market countries. Emerging market countries involve greater risks such as
immature economic structures, national policies restricting investments by
foreigners, and different legal systems.
- -- Regulatory Risk. There may be less government supervision of foreign
markets. Foreign issuers may not be subject to the uniform accounting,
auditing and financial reporting standards and practices applicable to
domestic issuers. There may be less publicly available information about
foreign issuers than domestic issuers.
- -- Market Risk. Foreign securities markets, particularly those of
underdeveloped or developing countries, may be less liquid and more
volatile than domestic markets. Certain markets may require payment for
securities before delivery and delays may be encountered in settling
securities transactions. In some foreign markets, there may not be
protection against failure by other parties to complete transactions. There
may be limited legal recourse against an issuer in the event of a default
on a debt instrument.
- -- Transaction Costs. Transaction costs of buying and selling foreign
securities, including brokerage, tax and custody costs, are generally
higher than those involved in domestic transactions.
Foreign securities purchased indirectly (e.g., depositary receipts) are subject
to many of the above risks, including currency risk, because their values depend
on the performance of a foreign security denominated in its home currency.
Futures, Options and Other Derivative Instruments. The Funds may enter into
futures contracts on securities, financial indices and foreign currencies and
options on such contracts ("futures contracts") and may invest in options on
securities, financial indices and foreign currencies ("options"), forward
contracts and interest rate swaps and swap-related products (collectively
"derivative instruments"). The Funds intend to use derivative instruments
primarily to hedge the value of its portfolio against potential adverse
movements in securities prices, foreign currency markets or interest rates. To a
limited extent, the Funds may also use derivative instruments for non-hedging
purposes such as seeking to increase the Funds' income or otherwise seeking to
enhance return. Please refer to Appendix A to this Prospectus and the SAI for a
more detailed discussion of these instruments.
The use of derivative instruments exposes the Funds to additional investment
risks and transaction costs. Risks inherent in the use of derivative instruments
include:
<PAGE>
- -- the risk that interest rates, securities prices and currency markets will
not move in the direction that the portfolio manager anticipates;
- -- imperfect correlation between the price of derivative instruments and
movements in the prices of the securities, interest rates or currencies
being hedged;
- -- the fact that skills needed to use these strategies are different from
those needed to select portfolio securities;
- -- inability to close out certain hedged positions to avoid adverse tax
consequences;
- -- the possible absence of a liquid secondary market for any particular
instrument and possible exchange-imposed price fluctuation limits, either
of which may make it difficult or impossible to close out a position when
desired;
- -- leverage risk, or the risk that adverse price movements in an instrument
can result in a loss substantially greater than the Fund's initial
investment in that instrument (in some cases, the potential loss is
unlimited); and
- -- particularly in the case of privately negotiated instruments, the risk that
the counterparty will fail to perform its obligations, which could leave
the Fund worse off than if it had not entered into the position.
Although the Funds believe the use of derivative instruments will benefit the
Funds, the Funds' performance could be worse than if the Funds had not used such
instruments if the portfolio manager's judgment proves incorrect. When a Fund
invests in a derivative instrument, it may be required to segregate cash and
other liquid assets or certain portfolio securities with its custodian to
"cover" the Fund's position. Assets segregated or set aside generally may not be
disposed of so long as a Fund maintains the positions requiring segregation or
cover. Segregating assets could diminish the Fund's return due to the
opportunity losses of foregoing other potential investments with the segregated
assets.
High-Yield/High-Risk Securities. High-yield/high-risk securities (or "junk"
bonds) are debt securities rated below investment grade by the primary rating
agencies such as Standard & Poor's Ratings Services ("Standard & Poor's") and
Moody's Investors Service, Inc. ("Moody's").
The value of lower quality securities generally is more dependent on the ability
of the issuer to meet interest and principal payments (i.e., credit risk) than
is the case for higher quality securities. Conversely, the value of higher
quality securities may be more sensitive to interest rate movements than lower
quality securities. Issuers of high-yield securities may not be as strong
financially as those issuing bonds with higher credit ratings. Investments in
such companies are considered to be more speculative than higher quality
investments.
Issuers of high-yield securities are more vulnerable to real or perceived
economic changes (for instance, an economic downturn or prolonged period of
rising interest rates), political changes or adverse developments specific to
the issuer. The market for lower quality securities is generally less liquid
than the market for higher quality securities. Adverse publicity and investor
perceptions as well as new or proposed laws may also have a greater negative
impact on the market for lower quality securities.
Please refer to the SAI for a description of bond rating categories.
<PAGE>
Short Sales. The Funds may engage in "short sales against the box." This
technique involves selling either a security that the Fund owns, or a security
equivalent in kind and amount to the security sold short that a Fund has the
right to obtain, for delivery at a specified date in the future. The Fund will
enter into a short sale against the box to hedge against anticipated declines in
the market price of portfolio securities. If the value of the securities sold
short increases prior to the scheduled delivery date, a Fund loses the
opportunity to participate in the gain.
See Appendix A for risks associated with certain other investments.
MANAGEMENT OF THE TRUST
- --------------------------------------------------------------------------------
The business and affairs of the Trust are managed under the direction of the
Board of Trustees. The Statement of Additional Information contains the name and
background information of each Trustee.
INVESTMENT ADVISER
Marsico Capital Management, LLC ("Marsico Capital" or the "Adviser"), located at
1200 17th Street, Suite 1300, Denver, CO 80202, serves as the investment adviser
to the Funds pursuant to an Investment Advisory Agreement (the "Agreement")
entered into with the Trust, which provides that the Adviser will furnish
continuous investment advisory and management services to the Funds. Thomas F.
Marsico is President and Chief Executive Officer of Marsico Capital and has
voting control of the company. Prior to forming Marsico Capital in September
1997, Mr. Marsico had __________ years of experience as a securities
analyst/portfolio manager, including _____ years in which he served as Executive
Vice President and Portfolio Manager of the Janus Twenty Fund and the Janus
Growth & Income Fund.
The Adviser supervises and manages the investment portfolio of the Funds, and
subject to such policies as the Board of Trustees may determine, directs the
purchase or sale of investment securities in the day-to-day management of the
Funds' investment portfolio. Under the Agreement, the Adviser, at its own
expense and without reimbursement from the Trust, furnishes office space and all
necessary office facilities, equipment and executive personnel for making the
investment decisions necessary for managing that Funds and maintaining its
organization, and will pay the salaries and fees of all officers and directors
of the Trust (except the fees paid to disinterested Trustees). For the
foregoing, the Adviser receives a monthly fee of _______ and ______ on the
average daily net assets of the Focus Fund and Growth & Income Fund,
respectively.
BACKGROUND OF PORTFOLIO MANAGER
Mr. Marsico manages the investment program of the Funds and is primarily
responsible for the day-to-day management of the Funds' portfolios. The
cumulative total return for the Janus Twenty Fund and the Janus Growth & Income
Fund during the periods when Mr. Marsico served as Portfolio Manager of both
Funds was _____% and _____%, respectively. At _______________, the date on which
Mr. Marsico ceased serving as the Portfolio Manager to both the Janus Twenty
Fund and the Janus Growth & Income Fund, the Janus Twenty Fund had
$_____________ in net assets, and the Janus Growth & Income Fund had $__________
in net assets. As Executive Vice President and Portfolio Manager of the Janus
Twenty Fund and the Janus Growth & Income Fund, Mr. Marsico had full
discretionary authority over the selection of investments for those funds.
Average annual returns for the one-year, three-year and five-year periods ended
________________ and for the entire period during which Mr. Marsico managed
those funds compared with the performance of the Standard & Poor's 500 Composite
Stock Price Index were:
<PAGE>
<TABLE>
<S> <C> <C> <C>
Janus Twenty Fund(1) Janus Growth & Income Fund(a) S&P 500 Index(2)
One Year
Three Years
Five Years
During Period of Janus Twenty:
Management by
Mr. Marsico Janus Growth & Income
</TABLE>
Historical performance is not indicative of future performance. The Janus Twenty
Fund and the Janus Growth & Income Fund are separate funds and their historical
performance is not indicative of the potential performance of the Focus Fund and
the Growth & Income Fund, respectively. Share prices and investment returns will
fluctuate reflecting market conditions, as well as changes in company- specific
fundamentals of portfolio securities.
ADMINISTRATION
Pursuant to an Administration and Fund Accounting Agreement (the Administration
Agreement), ____________________________ (the "Administrator"),
______________________________________, prepares and files all federal income
and excise tax returns and state income tax returns (other than those required
to be made by the Trust's Custodian or Transfer Agent), oversees the Trust's
insurance relationships, reviews drafts of the Trust's registration statement
and proxy statements, prepares securities registration compliance filings
pursuant to state securities laws, compiles data for and prepares required
notices and reports to the Securities and Exchange Commission, prepares
financial statements for annual and semiannual reports to investors, monitors
compliance with the Funds' investment policies and restrictions, performs
securities valuations, calculates daily net asset values of the Funds, maintains
all general ledger accounts and related subledgers, prepares and monitors the
Funds' expense accruals and causes all appropriate expenses to be paid from Fund
assets, monitors the Funds' status as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, maintains and/or coordinates
with the other service providers the maintenance of the accounts, books and
other documents required pursuant to Rule 31a-1 under the 1940 Act, and
generally assists in the Trust's administrative operations. The Administrator,
at its own expense and without reimbursement from the Trust, furnishes office
space and all necessary office facilities, equipment, supplies and clerical and
executive personnel for performing the services required to be performed by it
under the Administration Agreement. For the foregoing, the Administrator
receives from the Funds a fee, computed daily and payable monthly, based on the
Funds' average net assets at the annual rate of ________.
The Trust pays all of its own expenses, including, without limitation, the cost
of preparing and printing its registration statements required under the
Securities Act of 1933 and the 1940 Act and any amendments thereto, the expense
of registering its shares with the Securities and Exchange Commission and in the
a Average annual total return reflects changes in share prices and reinvestment
of dividends and distributions and is net of fund expenses.
b The Standard & Poor's 500 Composite Stock Price Index is an unmanaged index
of common stocks that is considered to be generally representative of the
United States stock market. The Index is adjusted to reflect reinvestment
of dividends.
<PAGE>
various states, advisory and administration fees, costs of organization and
maintenance of corporate existence, the printing and distribution costs of
prospectuses mailed to existing investors, reports to investors, reports to
government authorities and proxy statements, costs of meetings of shareholders,
fees paid to trustees who are not interested persons of the Investment Adviser,
interest charges, taxes, legal expenses, association membership dues, auditing
services, insurance premiums, brokerage commissions and expenses in connection
with portfolio transactions, fees and expenses of the custodian of the Trust's
assets, charges of securities pricing services, printing and mailing expenses
and charges and expenses of dividend disbursing agents, accounting services and
stock transfer agents.
PORTFOLIO TRANSACTIONS AND BROKERAGE
- --------------------------------------------------------------------------------
Subject to the supervision of the Trustees, decisions to buy and sell securities
for the Funds and negotiation of their brokerage commission rates are made by
the Adviser. In selecting a broker to execute each particular transaction, the
Adviser may take a number of factors into consideration, only one of which may
be the best net price available. Among the additional factors the Adviser may
take into consideration when selecting a broker are the research and investment
services that a broker may provide. Accordingly, the cost of the brokerage
commissions to the Funds in any transaction may be greater than that available
from other brokers if the difference is reasonably justified by other aspects of
the portfolio execution services being offered. See "Portfolio Transaction and
Brokerage" in the Statement of Additional Information.
INVESTING IN THE FUNDS
- --------------------------------------------------------------------------------
Shares of the Funds may be purchased directly from The Marsico Investment Fund.
They may also be purchased through an account that you maintain with a
securities broker or other financial institution ("Financial Service Agents").
See "How to Purchase Shares of the Funds -- Purchases Through Financial Service
Agents" on page ____.
If you wish to purchase shares of the Funds directly, please refer to the
purchase instructions described under "How to Purchase Shares of the Funds" on
page ____.
All purchases must be made in U.S. dollars and checks must be drawn on U.S.
banks. No cash will be accepted. A $20 fee will be charged against an investor's
account for any payment check returned to the Transfer Agent for insufficient
funds, stop payment, closed account or other reasons. The investor will also be
responsible for any losses suffered by the Fund as a result. Trust management
reserves the right to reject any purchase order for Fund shares.
If you have any questions, a Fund telephone representative will be pleased to
provide the information that you need. Please call the following toll-free
number: _______________________.
<PAGE>
HOW TO PURCHASE SHARES OF THE FUNDS
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
BY MAIL OR COURIER To Open an Account To Add to an Account
Complete and sign the Purchase Make your check payable to either The
Application. Make your check payable to Marsico Focus Fund or The Marsico Growth
either The Marsico Focus Fund or The & Income Fund and mail it to the address
Marsico Growth & Income Fund. By Mail, at the left. Put your account name,
send to: address and account number on your
The Marsico Investment Fund check. Subsequent investment forms will
[address] be included with each shareholder
statement. A shareholder wishing to add
By Overnight Courier, send to: to an account should complete this form
The Marsico Investment Fund and include it with the check.
[add appropriate address] Alternatively, include with your check a
note indicating your account number, your
name and your address.
BY TELEPHONE Telephone transactions may not be used Call (________) to make your purchase
for initial purchases. If you want to from a bank checking or money market
make subsequent telephone transactions, account by electronic funds transfer.
please select this service on your Specify account name, address and account
Purchase Application or call (________) number. This service must be established
to set up the account. by you in advance by following the
instructions at the left.
BY WIRE First, call (Administrator) at Follow instructions at the left. Please
(________) to notify them that you note that wires may be rejected if they
intend to purchase shares by wire and to do not contain complete account
verify wire instructions. Then, wire information.
funds care of ( )
--------------------
ABA #: (________)
Credit: (________)
Account #: (________)
Further credit: The Marsico Focus Fund
or The Marsico Growth & Income Fund
Shareholder Account #:
Shareholder Name/
Registration:
Include your name, address and taxpayer
identification number.
</TABLE>
<PAGE>
The minimum purchase requirements, which may be altered in certain
circumstances, are:
Initial Investment Additional Investment
Regular Accounts $1,000 $100
IRAs and IRA Rollovers 500 100
Non-Working Spousal IRAs 250 100
SEP-IRAs 500 100
Gifts to Minors 500 50
Automatic Investment Plan 50 50
PURCHASES BY MAIL
Your Purchase Application, if properly filled out and accompanied by payment in
the form of a check made payable to either the Marsico Focus Fund or the Marsico
Growth & Income Fund, will be processed upon receipt by the Transfer Agent. If
the Transfer Agent receives your order and payment by the close of regular
trading (currently 4:00 p.m. New York City time) on the New York Stock Exchange
("NYSE"), your shares will be purchased at the net asset value calculated at the
close of regular trading on that day. If received after that time, your shares
will be purchased at the net asset value determined as of the close of regular
trading on the next business day.
PURCHASES THROUGH FINANCIAL SERVICE AGENTS
If you are investing through a Financial Service Agent, please refer to their
program materials for any additional special provisions or conditions that may
be different from those described in this Prospectus. Financial Service Agents
have the responsibility of transmitting purchase orders and funds, and of
crediting their customers' accounts following redemptions, in a timely manner in
accordance with their customer agreements and this Prospectus.
If you place an order for shares of either Fund through a Financial Service
Agent, in accordance with such Financial Service Agent's procedures and such
Financial Service Agent then transmits your order to the Transfer Agent before
the close of regular trading on the NYSE on that day, then your purchase will be
processed at the net asset value calculated at the close of regular trading on
the NYSE on that day. The Financial Service Agent must promise to send to the
Transfer Agent immediately available funds in the amount of the purchase price
within five business days for the order.
PURCHASES BY TELEPHONE
Only bank accounts held at domestic financial institutions that are Automated
Clearing House (ACH) members can be used for telephone transactions. Telephone
transactions may not be used for initial purchases. Your account must already be
established prior to initiating telephone purchases. Your shares will be
purchased at the net asset value determined as of the close of regular trading
on the date that the Transfer Agent receives payment for shares purchased by
electronic funds transfer through the ACH system. Most transfers are completed
within three business days after your call to place the order. To preserve
flexibility, the Funds may revise or remove the ability to purchase shares by
phone, or may charge a fee for such service, although currently, the Funds do
not expect to charge a fee. Investors in the Funds may also request by telephone
a change of address, a change in investments made through an Automatic
Investment Plan (see page __), and a change in the manner in which dividends are
received (see page __).
<PAGE>
The Funds will employ reasonable procedures to confirm that instructions
communicated by telephone are genuine. Such procedures may include, among
others, requiring some form of personal identification prior to acting upon
telephone instructions, providing written confirmations of all such
transactions, and/or tape recording all telephone instructions. Assuming
procedures such as the above have been followed, the Funds will not be liable
for any loss, cost, or expense for acting upon an investor's telephone
instructions or for any unauthorized telephone redemption. As a result of this
policy, the investor will bear the risk of any loss unless the Funds have failed
to follow such procedure(s).
PURCHASES BY WIRE
If you purchase your initial shares by wire, you must prepare and file a
Purchase Application, marked "follow-up," with the Transfer Agent. The Transfer
Agent must receive the Purchase Application before any of the shares purchased
can be redeemed. You should contact your bank (which will need to be a
commercial bank that is a member of the Federal Reserve System) for information
on sending funds by wire, including any charges that your bank may make for
these services. Wiring instructions are listed on page __ of this Prospectus.
MISCELLANEOUS PURCHASE INFORMATION
Federal regulations require that you provide a certified taxpayer identification
number whenever you open or reopen an account. Congress has mandated that if any
shareholder fails to provide and certify to the accuracy of the shareholder's
Social Security number or other taxpayer identification number, the Fund will be
required to withhold 31% of all dividends, distributions and payments, including
redemption proceeds, from such shareholder as a backup withholding procedure.
For reasons of economy and convenience, the Funds will not issue certificates
for shares purchased.
The Funds understand that some Financial Service Agents may impose certain
conditions on their clients which are in addition to or different from those
described in this Prospectus, and, to the extent permitted by applicable
regulatory authorities, may charge their clients direct fees. Certain Financial
Service Agents may receive compensation from the Funds. Certain Financial
Service Agents may enter into agreements with the Funds which permit them to
confirm purchase orders on behalf of customers by phone, with payment to follow
no later than the Funds' pricing on the following business day. If payment is
not received by such time, the Financial Service Agent could be held liable for
resulting fees or losses.
HOW TO SELL (REDEEM) SHARES OF THE FUNDS
- --------------------------------------------------------------------------------
You may sell (redeem) your shares at any time. Ordinarily, the Funds make
payment by check for the shares redeemed within three business days after
receiving your properly completed request. However, the right of redemption may
be suspended or payment may be postponed under unusual circumstances such as
when trading on the New York Stock Exchange is restricted or when it is not
reasonably practical for the Funds to determine the fair market value of their
net assets. Payment of redemption proceeds with respect to shares purchased by
check will not be made until the check or payment received for investment has
cleared, which may take up to 15 calendar days from the purchase date.
Payment of the redemption proceeds for shares of the Funds where an investor
requests wire payment will normally be made in federal funds on the next
business day. The Transfer Agent will wire redemption proceeds only to the bank
and account designated on the Purchase Application or in written instructions
subsequently received by the Transfer Agent, and only if the bank is a
commercial bank that is a member of the Federal Reserve System. The Transfer
Agent currently charges a $______ fee for each payment made by wire of
redemption proceeds, which fee will be deducted from the investor's account.
<PAGE>
PROCEDURE FOR REQUESTING REDEMPTION
You may request the sale of your shares either by mail or courier or by
telephone as described below.
By Mail:
Sale requests should be mailed to:
The Marsico Investment Fund
- ----------------------
- ----------------------
By Overnight Courier:
The requests should be sent to:
The Marsico Investment Fund
(Insert appropriate address)
The selling price of each share being redeemed will be the net asset value per
share next calculated after receipt of all required documents in good order.
Good order means that the request must include:
- - Your Marsico Investment Fund account number
- - The name of the fund the shares of which you want to redeem
- - The number of shares or dollar amount to be sold (redeemed)
- - The signatures of all account owners exactly as they are registered on the
account
- - Any required signature guarantees
- - Any supporting legal documentation that is required in the case of estates,
trusts, corporations or partnerships
- - In the case of shares being redeemed from an IRA or IRA/SEP Plan, a statement
of whether or not federal income tax should be withheld (in the absence of any
statement, federal tax will be withheld)
A signature guarantee of each owner is required to redeem shares in the
following situations: (i) if you change ownership on your account; (ii) when you
want the redemption proceeds sent to a different address from that registered on
the account; (iii) if the proceeds are to be made payable to someone other than
the account's owner(s); (iv) any redemption transmitted by federal wire transfer
to your bank; and (v) if a change of address request has been received by the
Fund or the Transfer Agent within the last 15 days. In addition, signature
guarantees are required for all redemptions of $25,000 or more from any
shareholder account.
Signature guarantees are designed to protect both you and the Fund from fraud.
Signature guarantees can be obtained from most banks, credit unions or savings
associations, or from broker/dealers, municipal securities broker/dealers,
government securities broker/dealers, national securities exchanges, registered
securities associations or clearing agencies deemed eligible by the Securities
and Exchange Commission. Notaries public cannot provide signature guarantees.
By Telephone:
Shares of the Funds may also be sold by calling the Transfer Agent at
(____________). In order to utilize this procedure for telephone redemption, a
shareholder must have previously elected this procedure in writing, which
election will be reflected in the records of the Transfer Agent, and the
redemption proceeds must be mailed directly to the investor or transmitted to
the investor's predesignated account at a domestic bank. To change the
designated account, send a written request with signature(s) guaranteed to the
Transfer Agent. To change the address, call the Transfer Agent at (____________)
or send a written request with signature(s) guaranteed to the Transfer Agent.
Any written redemption requests received within 15 days after an address change
<PAGE>
must be accompanied by a signature guarantee and no telephone redemptions will
be allowed within 15 days of such a change. The Funds reserve the right to limit
the number of telephone redemptions by an investor. Once made, telephone
redemption requests may not be modified or canceled. The selling price of each
share being redeemed will be the Fund's per share net asset value next
calculated after receipt by the Transfer Agent of the telephone redemption
request.
The Funds will not be liable for following instructions communicated by
telephone that they reasonably believe to be genuine. See "Purchases by
Telephone" on page __ for discussion of liability for telephone errors.
During periods of substantial economic or market changes, telephone redemptions
may be difficult to implement. If an investor is unable to contact the Transfer
Agent by telephone, shares may also be redeemed by delivering the redemption
request to the Transfer Agent by mail as previously described.
REDEMPTION AT THE OPTION OF THE FUND
The Funds reserve the right to redeem shares held in any account if the net
asset value remains below $500 in order to relieve the Funds of the cost of
maintaining very small accounts. Before such involuntary redemption, the Funds
will give the shareholder 30 days written notice to bring the account up to $500
before any action is taken. This minimum balance requirement does not apply to
IRAs and other tax-sheltered investment accounts. The right of redemption shall
not apply if the value of a shareholder's account drops below $500 as the result
of market action.
SHAREHOLDER SERVICES
- --------------------------------------------------------------------------------
AUTOMATIC INVESTMENT PLAN
The Funds offer an Automatic Investment Plan whereby an investor may
automatically purchase shares of the Funds on a regular basis ($50 minimum per
transaction). Under the Automatic Investment Plan, an investor's designated bank
or other financial institution debits a pre-authorized amount on the investor's
account each month or quarter and applies the amount to the purchase of a Fund
shares. The Automatic Investment Plan must be implemented with a financial
institution that is a member of the Automated Clearing House (ACH). Also, the
designated Fund must have a currently effective registration in those states in
which it is required. Applications to establish the Automatic Investment Plan
are available from the Funds.
Using an Automatic Investment Plan facilitates dollar-cost averaging whereby
investing equal dollar amounts periodically in a fluctuating market leads to
buying more shares at lows and fewer shares at highs. Of course, dollar-cost
averaging cannot assure a profit or protect the investor against losses in a
declining market.
RETIREMENT PLANS
The Funds offer the following retirement plans that may allow investors to
shelter some of their income from taxes. Application forms, as well as
descriptions of applicable service fees and certain limitations on contributions
and withdrawals, are available from the Transfer Agent or the Funds upon
request.
Individual Retirement Account ("IRA"). The individual investor can select the
shares of the Marsico Focus Fund or the Marsico Growth & Income Fund to fund
either an IRA, Rollover IRA or a non-working spousal IRA. To establish an IRA,
please complete the IRA Application, and if the assets are being moved from an
existing IRA, please complete the IRA Transfer Form.
Earnings on investments held in an IRA are not taxed until withdrawal. However,
the size of the deduction, if any, allowed for IRA contributions is limited for
individuals who are active participants in an employer-maintained retirement
plan and whose incomes exceed specific limits.
<PAGE>
The Funds' minimum initial investment for an IRA is $500 ($250 for spousal
IRAs). The minimum subsequent investment in each case is $100.
Simplified Employee Pension Plan ("SEP/IRA"). The Funds offer a simplified
employee pension (SEP) plan for employers, including self-employed individuals
who wish to purchase shares of the Funds with tax-deductible contributions not
exceeding annually for any one participant the lesser of $30,000 or 15% of
earned income. Under the SEP plan, employer contributions are made directly to
the IRA accounts of eligible participants. An employer may also provide for
salary reduction contributions within certain limits under a SEP plan.
SERVICE AND DISTRIBUTION PLAN
- --------------------------------------------------------------------------------
The Funds have adopted a Service and Distribution Plan (the Plan) pursuant to
Rule 12b-1 under the 1940 Act. The Plan authorizes payments by each Fund in
connection with the distribution of its shares at an annual rate, as determined
from time-to-time by the Board of Trustees, of up to 0.25% of a Fund's average
daily net assets.
Payments may be made by the Funds under the Plan for the purpose of financing
any activity primarily intended to result in the sales of shares of the Funds as
determined by the Board of Trustees. Such activities typically include
advertising; compensation for sales and sales marketing activities of Financial
Service Agents and others, such as dealers or distributors; shareholder account
servicing; production and dissemination of prospectuses and sales and marketing
materials; and capital or other expenses of associated equipment, rent,
salaries, bonuses, interest and other overhead. To the extent any activity is
one which the Funds may finance without a Plan, the Funds may also make payments
to finance such activity outside of the Plan and not subject to its limitations.
Payments under the Plan are not tied exclusively to actual distribution and
service expenses, and the payments may exceed distribution and service expenses
actually incurred.
Administration of the Plan is regulated by Rule 12b-1 under the 1940 Act, which
includes requirements that the Board of Trustees receive and review at least
quarterly reports concerning the nature and qualification of expenses which are
made, that the Board of Trustees approve all agreements implementing the Plan
and that the Plan may be continued from year-to-year only if the Board of
Trustees concludes at least annually that continuation of the Plan is likely to
benefit shareholders.
In approving the Plan, the Trustees determined, in the exercise of their
business judgment and in light of their fiduciary duties, that there is a
reasonable likelihood that the Plan will benefit the Funds and their
shareholders.
DIVIDENDS AND DISTRIBUTIONS
- --------------------------------------------------------------------------------
The Focus Fund intends to pay dividends from net investment income and net
realized capital gains (not offset by capital loss carryovers) on an annual
basis. The Growth & Income Fund's dividends from net investment income are
declared and paid quarterly, and net realized capital gains are paid annually.
Investors may elect to reinvest all income dividends and capital gains
distributions in shares of the Funds or in cash as designated on the Purchase
Application. If the investor does not specify an election, all income dividends
and capital gains distributions will automatically be reinvested in full and
fractional shares of the Funds calculated to the nearest 1,000th of a share.
Shares will be purchased at the net asset value in effect on the business day
after the dividend record date and will be credited to the investor's account on
such date. Reinvested dividends and distributions receive the same tax treatment
as those paid in cash.
An investor may change his or her election at any time by calling the Transfer
Agent at _______________ or by sending written notification to The Marsico
Investment Fund, [address]. The election is effective for distributions with a
dividend record date on or after the date that the Transfer Agent receives
notice of the election.
<PAGE>
TAXES
- --------------------------------------------------------------------------------
FEDERAL TAXES
Below is a summary of certain federal income tax considerations affecting the
funds and their shareholders. More information is contained in the Statement of
Additional Information. Potential investors should consult their tax advisers
about the impact of owning fund shares on their particular tax situations,
including the application of any state or local taxes.
Each Fund intends to elect to be treated and to qualify each year as a regulated
investment company under Subchapter M of the Internal Revenue Code of 1986, as
amended. A regulated investment company generally is not subject to federal
income tax on its investment company taxable income distributed in a timely
manner to its shareholders.
Dividends paid by a Fund out of net ordinary income and distributions of net
short-term capital gains are taxable to the Fund's U.S. shareholders as ordinary
income. Dividends from net ordinary income may be eligible for the corporate
dividends-received deduction.
Distributions by a Fund of long-term capital gains (the excess of net long-term
capital gains over net short-term capital losses) to their U.S. shareholders are
generally taxable to the shareholders at the long-term capital gains rate
regardless of how long the shareholder has held shares of the Fund.
A dividend or capital gains distribution declared by a Fund in October, November
or December, but paid during January of the following year will be considered to
be paid on December 31 of the year it was declared.
If the value of shares is reduced below a shareholder's cost as a result of a
distribution by a Fund, the distribution will be taxable even though it, in
effect, represents a return of invested capital. Investors considering buying
shares just prior to a dividend or capital gain distribution payment date should
be aware that, although the price of shares purchased at that time may reflect
the amount of the forthcoming distribution, those who purchase just prior to the
record date for a distribution may receive a distribution which will be taxable
to them.
A dividend or capital gains distribution with respect to shares of a Fund held
by a tax-deferred or qualified plan, such as an IRA, retirement plan or
corporate pension or profit sharing plan, will not be taxable to the plan.
Distributions from such plans will be taxable to individual participants under
applicable tax rules without regard to the character of the income earned by the
qualified plan.
Shareholders will be advised annually as to the federal tax status of dividends
and capital gains distributions made by each Fund for the preceding year.
Distributions by the Funds generally will be subject to state and local taxes.
FOREIGN INCOME TAXES
Investment income received by the Funds from sources within foreign countries
may be subject to foreign income taxes withheld at the source. It is not
expected that the Funds will be able to "pass through" these taxes to
shareholders but such taxes generally will be deductible by the Fund.
FUND PERFORMANCE
- --------------------------------------------------------------------------------
From time-to-time, the Fund may advertise its "average annual total return" over
various periods of time. This total return figure shows the average percentage
change in value of an investment in the Funds from the beginning date of the
measuring period to the ending date of the measuring period. The figure reflects
changes in the price of the Funds' share and assumes that any income dividends
and/or capital gains distributions made by the Funds during the period are
reinvested in shares of the Funds. Figures will be given for recent one-, five-
<PAGE>
and ten-year periods (when applicable), and may be given for other periods as
well (such as from commencement of the Funds' operations, or on a year-by-year
basis). When considering "average" total return figures for periods longer than
one year, investors should note that the Funds' annual total return for any one
year in the period might have been greater or less than the average for the
entire period. The Funds also may use "aggregate" total return figures for
various periods, representing the cumulative change in value of an investment in
the Fund for the specific period (again reflecting changes in the Funds' share
price and assuming reinvestment of dividends and distributions). Aggregate total
returns may be shown by means of schedules, charts or graphs, and may indicate
subtotals of the various components of total return (that is, the change in
value of initial investment, income dividends and capital gains distributions).
The Funds may quote the average annual total and/or aggregate total return for
various time periods in advertisements or communications to shareholders. Each
Fund may also compare its performance to that of other mutual funds with similar
investment objectives and to stock and other relevant indices or to rankings
prepared by independent services or industry publications. For example, each
Fund's total return may be compared to data prepared by Lipper Analytical
Services, Inc., Morningstar, Value Line Mutual Fund Survey and CDA Investment
Technologies, Inc. Total return data as reported in such national financial
publications as The Wall Street Journal, The New York Times, Investor's Business
Daily, USA Today, Barron's, Money, and Forbes as well as in publications of a
local or regional nature, may be used in comparing Fund performance.
Each Fund's total return may also be compared to such indices as the:
- - Dow Jones Industrial Average
- - Standard & Poor's 500 Composite Stock Price Index
- - NASDAQ Composite OTC Index or NASDAQ Industries Index
- - Consumer Price Index
- - Russell 2000 Index
Further information on performance measurement may be found in the Statement of
Additional Information.
SHARE PRICE AND DETERMINATION OF NET ASSET VALUE
- --------------------------------------------------------------------------------
Shares are purchased at their net asset value per share. Each Fund calculates
its net asset value (NAV) as follows:
(Value of Fund Assets) - (Fund Liabilities
NAV = ------------------------------------------
(Number of Outstanding Shares)
Net asset value is determined as of the end of regular trading hours on the New
York Stock Exchange (currently 4:00 p.m. New York City time) on days that the
New York Stock Exchange is open.
A security listed or traded on a recognized stock exchange or quoted on NASDAQ
is valued at its last sale price prior to the time when assets are valued on the
principal exchange on which the security is traded or on NASDAQ. If no sale is
reported at that time, the most current bid price will be used. All other
securities for which over-the-counter market quotations are readily available
are valued at the most current bid price. Where quotations are not readily
available, the Funds' investments are valued at fair value as determined by
management and approved in good faith by the Board of Trustees. Debt securities
which will mature in more than 60 days are valued at prices furnished by a
pricing service approved by the Board of Trustees subject to review and
determination of the appropriate price by Marsico Capital Management, whenever a
furnished price is significantly different from the previous day's furnished
price. Securities which will mature in 60 days or less are valued at amortized
cost, which approximates market value.
<PAGE>
Generally, trading in foreign securities, as well as United States Government
securities and certain cash equivalents, repurchase agreements and securities
lending agreements, is substantially completed each day at various times prior
to the close of the New York Stock Exchange. The values of such securities used
in computing the net asset value of the shares of the Funds are determined as of
such times. Foreign currency exchange rates are also generally determined prior
to the close of the New York Stock Exchange. Occasionally, events affecting the
value of such securities and such exchange rates may occur between the times at
which they are determined and the close of the New York Stock Exchange, which
will not be reflected in the computation of net asset value. If during such
periods, events occur which materially affect the value of such securities, the
securities will be valued at their fair market value as determined by management
and approved in good faith by the Board of Trustees.
For purposes of determining the net asset value per share of each Fund, all
assets and liabilities initially expressed in foreign currencies will be
converted into United States dollars at the mean between the bid and offer
prices of such currencies against United States dollars furnished by a pricing
service approved by the Board of Trustees.
CAPITAL STRUCTURE
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARES
The Trust is organized as a series fund which permits it to issue its authorized
capital stock in one or more series, each such series representing a separate
investment portfolio.
The Trust is authorized to issue an unlimited number of shares of beneficial
interest. The Board of Trustees may, at its discretion, classify additional
series within the Trust without further action by the shareholders. Each share
outstanding entitles the holder to one vote. Generally, shares of all series
will be voted together as one class, except where voting by a series is required
by law. There will normally be no meetings of the shareholders for the purpose
of electing Trustees unless and until such time as less than a majority of the
Trustees holding office have been elected by shareholders.
COUNSEL AND INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS
- --------------------------------------------------------------------------------
Dechert Price & Rhoads, 1500 K Street, N.W., Washington, D.C. 20005, has passed
upon the validity of the shares offered by this Prospectus and also acts as
counsel to the Trust.
[Insert Public Accounting Firm], has been selected to serve as independent
certified public accountants of the Trust for the fiscal year ending December
31, 1998 [confirm].
CUSTODIAN AND TRANSFER AND DIVIDEND DISBURSING AGENT
- --------------------------------------------------------------------------------
[Insert Custodian, Transfer Agent, and Dividend Disbursing Agent] has been
retained to act as Custodian of the Funds' investments, and also serves as the
Funds' Transfer and Dividend Disbursing Agent. Neither the Custodian nor the
Transfer and Dividend Disbursing Agent has any part in deciding the Funds'
investment policies or which securities are to be purchased or sold for the
Funds' portfolio.
INFORMATION FOR SHAREHOLDERS
- --------------------------------------------------------------------------------
The Funds will provide the following statements and reports to keep the investor
current regarding the status of his or her investment account:
<PAGE>
Confirmation Statements After each transaction that
affects the account balance or account
registration.
Account Statements Quarterly.
Financial Reports At least semiannually. Annual
reports will include audited financial
statements. To reduce Fund expenses, one
copy of each report will be mailed to each
taxpayer identification number even though
the investor may have more than one account
in the Fund.
Investors who have questions about their specific accounts, have general
questions or wish to have additional information should call the Funds at:
[phone number]. In addition, investors who wish to make a change in their
address of record, a change in investments made through an [Automatic Investment
Plan] or a change in the manner in which dividends are received may also do so
by calling the Fund at that number.
<PAGE>
Appendix A
GLOSSARY OF INVESTMENT TERMS
This glossary provides a more detailed description of some of the types of
securities and other instruments in which the Funds may invest. The Funds may
invest in these instruments to the extent permitted by its investment objective
and policies. The Funds are not limited by this discussion and may invest in any
other types of instruments not precluded by the policies discussed elsewhere in
this Prospectus. Please refer to the SAI for a more detailed discussion of
certain instruments.
I. EQUITY AND DEBT SECURITIES
Bonds are debt securities issued by a company, municipality, government or
government agency. The issuer of a bond is required to pay the holder the amount
of the loan (or par value) at a specified maturity and to make scheduled
interest payments.
Commercial paper is a short-term debt obligation with a maturity ranging from 1
to 270 days issued by banks, corporations and other borrowers to investors
seeking to invest idle cash. For example, the Funds may purchase commercial
paper issued under Section 4(2) of the Securities Act of 1933.
Common stock represents a share of ownership in a company and usually carries
voting rights and earns dividends. Unlike preferred stock, dividends on common
stock are not fixed but are declared at the discretion of the issuer's board of
directors.
Convertible securities are preferred stocks or bonds that pay a fixed dividend
or interest payment and are convertible into common stock at a specified price
or conversion ratio.
Depositary receipts are receipts for shares of a foreign-based corporation that
entitle the holder to dividends and capital gains on the underlying security.
Receipts include those issued by domestic banks (American Depositary Receipts),
foreign banks (Global or European Depositary Receipts) and broker-dealers
(depositary shares).
Fixed-income securities are securities that pay a specified rate of return. The
term generally includes short-and long-term government, corporate and municipal
obligations that pay a specified rate of interest or coupons for a specified
period of time and preferred stock, which pays fixed dividends. Coupon and
dividend rates may be fixed for the life of the issue or, in the case of
adjustable and floating rate securities, for a shorter period.
High-yield/High-risk securities are securities that are rated below investment
grade by the primary rating agencies (e.g., BB or lower by Standard & Poor's and
Ba or lower by Moody's). Other terms commonly used to describe such securities
include "lower rated bonds," "noninvestment grade bonds" and "junk bonds."
Mortgage- and asset-backed securities are shares in a pool of mortgages or other
debt. These securities are generally pass-through securities, which means that
principal and interest payments on the underlying securities (less servicing
fees) are passed through to shareholders on a pro rata basis. These securities
involve prepayment risk, which is the risk that the underlying mortgages or
other debt may be refinanced or paid off prior to their maturities during
periods of declining interest rates. In that case, the portfolio manager may
have to reinvest the proceeds from the securities at a lower rate. Potential
market gains on a security subject to prepayment risk may be more limited than
potential market gains on a comparable security that is not subject to
prepayment risk.
Passive foreign investment companies ("PFICs") are any foreign corporations
which generate certain amounts of passive income or hold certain amounts of
assets for the production of passive income. Passive income includes dividends,
interest, royalties, rents and annuities. Income tax regulations may require the
Fund to recognize income associated with the PFIC prior to the actual receipt of
any such income.
<PAGE>
Pay-in-kind bonds are debt securities that normally give the issuer an option to
pay cash at a coupon payment date or give the holder of the security a similar
bond with the same coupon rate and a face value equal to the amount of the
coupon payment that would have been made.
Preferred stock is a class of stock that generally pays dividends at a specified
rate and has preference over common stock in the payment of dividends and
liquidation. Preferred stock generally does not carry voting rights.
Repurchase agreements involve the purchase of a security by the Fund and a
simultaneous agreement by the seller (generally a bank or dealer) to repurchase
the security from the Fund at a specified date or upon demand. This technique
offers a method of earning income on idle cash. These securities involve the
risk that the seller will fail to repurchase the security, as agreed. In that
case, the Fund will bear the risk of market value fluctuations until the
security can be sold and may encounter delays and incur costs in liquidating the
security.
Reverse repurchase agreements involve the sale of a security by the Fund to
another party (generally a bank or dealer) in return for cash and an agreement
by the Fund to buy the security back at a specified price and time. This
technique will be used primarily to provide cash to satisfy unusually heavy
redemption requests.
Rule 144A securities are securities that are not registered for sale to the
general public under the Securities Act of 1933, but that may be resold to
certain institutional investors.
Standby commitments are obligations purchased by the Fund from a dealer that
give the Fund the option to sell a security to the dealer at a specified price.
Step coupon bonds are debt securities that trade at a discount from their face
value and pay coupon interest. The discount from the face value depends on the
time remaining until cash payments begin, prevailing interest rates, liquidity
of the security and the perceived credit quality of the issuer.
Strip bonds are debt securities that are stripped of their interest (usually by
a financial intermediary) after the securities are issued. The market value of
these securities generally fluctuates more in response to changes in interest
rates than interest-paying securities of comparable maturity.
U.S. government securities include direct obligations of the U.S. government
that are supported by its full faith and credit. Treasury bills have initial
maturities of less than one year, Treasury notes have initial maturities of one
to ten years, and Treasury bonds may be issued with any maturity but generally
have maturities of at least ten years. U.S. government securities also include
indirect obligations of the U.S. government that are issued by federal agencies
and government sponsored entities. Unlike Treasury securities, agency securities
generally are not backed by the full faith and credit of the U.S. government.
Some agency securities are supported by the right of the issuer to borrow from
the Treasury, others are supported by the discretionary authority of the U.S.
government to purchase the agency's obligations and others are supported only by
the credit of the sponsoring agency.
Variable and floating rate securities have variable or floating rates of
interest and, under certain limited circumstances, may have varying principal
amounts. These securities pay interest at rates that are adjusted periodically
according to a specified formula, usually with reference to some interest rate
index or market interest rate. The floating rate tends to decrease the
security's price sensitivity to changes in interest rates.
Warrants are securities, typically issued with preferred stocks or bonds, that
give the holder the right to buy a proportionate amount of common stock at a
specified price, usually at a price that is higher than the market price at the
time of issuance of the warrant. The right may last for a period of years or
indefinitely.
When-issued, delayed delivery and forward transactions generally involve the
purchase of a security with payment and delivery at some time in the future --
i.e., beyond normal settlement. The Funds do not earn interest on such
securities until settlement, and the Funds bear the risk of market value
<PAGE>
fluctuations in between the purchase and settlement dates. New issues of stocks
and bonds, private placements and U.S. government securities may be sold in this
manner.
Zero coupon bonds are debt securities that do not pay interest at regular
intervals, but are issued at a discount from face value. The discount
approximates the total amount of interest the security will accrue from the date
of issuance to maturity. The market value of these securities generally
fluctuates more in response to changes in interest rates than interest-paying
securities of comparable maturity.
II. FUTURES, OPTIONS AND OTHER DERIVATIVES
Forward contracts are contracts to purchase or sell a specified amount of
property for an agreed upon price at a specified time. Forward contracts are not
currently exchange traded and are typically negotiated on an individual basis.
The Fund may enter into forward currency contracts to hedge against declines in
the value of securities denominated in, or whose value is tied to, a currency
other than the U.S. dollar or to reduce the impact of currency appreciation on
purchases of such securities. It may also enter into forward contracts to
purchase or sell securities or other financial indices.
Futures contracts are contracts that obligate the buyer to receive and the
seller to deliver an instrument or money at a specified price on a specified
date. The Fund may buy and sell futures contracts on foreign currencies,
securities and financial indices including interest rates or an index of U.S.
government, foreign government, equity or fixed-income securities. The Fund may
also buy options on futures contracts. An option on a futures contract gives the
buyer the right, but not the obligation, to buy or sell a futures contract at a
specified price on or before a specified date. Futures contracts and options on
futures are standardized and traded on designated exchanges.
Indexed/structured securities are typically short- to intermediate-term debt
securities whose value at maturity or interest rate is linked to currencies,
interest rates, equity securities, indices, commodity prices or other financial
indicators. Such securities may be positively or negatively indexed (i.e., their
value may increase or decrease if the reference index or instrument
appreciates). Indexed/structured securities may have return characteristics
similar to direct investments in the underlying instruments and may be more
volatile than the underlying instruments. The Fund bears the market risk of an
investment in the underlying instruments, as well as the credit risk of the
issuer.
Interest rate swaps involve the exchange by two parties of their respective
commitments to pay or receive interest (e.g., an exchange of floating rate
payments for fixed rate payments).
Options are the right, but not the obligation, to buy or sell a specified amount
of securities or other assets on or before a fixed date at a predetermined
price. The Fund may purchase and write put and call options on securities,
securities indices and foreign currencies.
<PAGE>
The Marsico Investment Fund
The Marsico Focus Fund
The Marsico Growth & Income Fund
---------------------------- PROSPECTUS
INVESTMENT ADVISER ______________, 1997
Marsico Capital Management, LLC
ADMINISTRATOR
[To be Provided]
COUNSEL
Dechert Price & Rhoads
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
[To be provided]
CUSTODIAN AND TRANSFER AND
DIVIDEND DISBURSING AGENT
[To be provided]
THE MARSICO INVESTMENT FUND
1200 17th Street
Suite 1300
Denver, CO 80202
(303) 436-1300
<PAGE>
THE MARSICO INVESTMENT FUND
- --------------------------------------------------------------------------------
STATEMENT OF ADDITIONAL INFORMATION
_____________, 1997
- --------------------------------------------------------------------------------
This Statement of Additional Information is not a prospectus and should be read
in conjunction with the prospectus for The Marsico Investment Fund dated
___________, 1997, as amended from time to time, a copy of which may be obtained
without charge by calling (303) 436-1300 or writing to 1200 17th Street, Suite
1300, Denver, Colorado 80202.
<PAGE>
TABLE OF CONTENTS
INVESTMENT OBJECTIVES AND POLICIES......................................... 1
TYPES OF SECURITIES AND INVESTMENT TECHNIQUES.............................. 3
TRUSTEES AND OFFICERS...................................................... 3
INVESTMENT ADVISORY AND OTHER SERVICES..................................... 16
DISTRIBUTION PLAN.......................................................... 17
PORTFOLIO TURNOVER......................................................... 17
PORTFOLIO TRANSACTIONS AND BROKERAGE....................................... 18
PERFORMANCE INFORMATION.................................................... 18
TAX STATUS................................................................. 19
NET ASSET VALUE............................................................ 20
CAPITAL STRUCTURE.......................................................... 23
HOW TO REDEEM SHARES....................................................... 23
EXPERTS.................................................................... 24
APPENDIX................................................................... 24
FINANCIAL STATEMENTS.......................................................
<PAGE>
INVESTMENT OBJECTIVES AND POLICIES
The Marsico Focus Fund ("Focus Fund") is a nondiversified fund that seeks
long-term growth of capital. Under normal conditions, this Fund concentrates its
investments in a core position of 20-30 common stocks.
The Marsico Growth and Income Fund ("Growth & Income Fund") is a diversified
fund that seeks both long-term capital growth and current income. The Growth and
Income Fund places a stronger emphasis on the growth objective and normally
invests up to 70% of its assets in equity securities selected primarily for
their growth potential and at least 25% of its assets in securities that have
income potential. In unusual circumstances, the Fund may reduce the growth
component of its portfolio to 25% of its assets.
FUNDAMENTAL INVESTMENT RESTRICTIONS
As indicated in the Prospectus, the Funds are subject to certain fundamental
policies and restrictions that may not be changed without shareholder approval.
Shareholder approval means approval by the lesser of (i) more than 50% of the
outstanding voting securities of the Trust (or a particular Fund if a matter
affects just that Fund), or (ii) 67% or more of the voting securities present at
a meeting if the holders of more than 50% of the outstanding voting securities
of the Trust (or a particular Fund) are present or represented by proxy. As
fundamental policies, each Fund may not:
(1) Invest 25% or more of the value of their respective total assets in any
particular industry (other than U.S. government securities).
(2) Invest directly in real estate; however, the Funds may own debt or equity
securities issued by companies engaged in those businesses.
(3) Purchase or sell physical commodities other than foreign currencies unless
acquired as a result of ownership of securities (but this limitation shall not
prevent the Funds from purchasing or selling options, futures, swaps and forward
contracts or from investing in securities or other instruments backed by
physical commodities).
(4) Lend any security or make any other loan if, as a result, more than 25% of a
Fund's total assets would be lent to other parties (but this limitation does not
apply to purchases of commercial paper, debt securities or repurchase
agreements).
(5) Act as an underwriter of securities issued by others, except to the extent
that a Fund may be deemed an underwriter in connection with the disposition of
portfolio securities of such Fund.
(6) Issue senior securities, except as permitted under the Investment Company
Act of 1940.
(7) Borrow money, except that the Funds may borrow money for temporary or
emergency purposes (not for leveraging or investment) in an amount not exceeding
33 1/3% of the value of their respective total assets (including the amount
borrowed) less liabilities (other than borrowings). If borrowings exceed 33 1/3%
of the value of a Fund's total assets by reason of a decline in net assets, the
Fund will reduce its borrowings within three business days to the extent
necessary to comply with the 33 1/3% limitation. This policy shall not prohibit
reverse repurchase agreements, deposits of assets to margin or guarantee
positions in futures, options, swaps or forward contracts, or the segregation of
assets in connection with such contracts.
As a fundamental policy, the Growth & Income Fund may not:
(1) Own more than 10% of the outstanding voting securities of any one issuer
and, as to seventy-five percent (75%) of the value of its total assets, purchase
the securities of any one issuer (except cash items and "government securities"
as defined under the Investment Company Act of 1940, as amended (the "1940
Act")), if immediately after and as a result of such purchase, the value of the
holdings of a Fund in the securities of such issuer exceeds 5% of the value of
such Fund's total assets.
The Trustees have adopted additional investment restrictions for the Funds.
These restrictions are operating policies of the Funds and may be changed by the
Trustees without shareholder approval. The additional investment restrictions
adopted by the Trustees to date include the following:
(a) A Fund will not (i) enter into any futures contracts and related options for
purposes other than bona fide hedging transactions within the meaning of
Commodity Futures Trading Commission ("CFTC") regulations if the aggregate
initial margin and premiums required to establish positions in futures contracts
and related options that do not fall within the definition of bona fide hedging
transactions will exceed 5% of the fair market value of a Fund's net assets,
after taking into account unrealized profits and unrealized losses on any such
contracts it has entered into; and (ii) enter into any futures contracts if the
aggregate amount of such Fund's commitments under outstanding futures contracts
positions would exceed the market value of its total assets.
(b) The Funds do not currently intend to sell securities short, unless they own
or have the right to obtain securities equivalent in kind and amount to the
securities sold short without the payment of any additional consideration
therefor, and provided that transactions in futures, options, swaps and forward
contracts are not deemed to constitute selling securities short.
(c) The Funds do not currently intend to purchase securities on margin, except
that the Funds may obtain such short-term credits as are necessary for the
clearance of transactions, and provided that margin payments and other deposits
in connection with transactions in futures, options, swaps and forward contracts
shall not be deemed to constitute purchasing securities on margin.
(d) A Fund may not mortgage or pledge any securities owned or held by such Fund
in amounts that exceed, in the aggregate, 15% of that Fund's net asset value,
provided that this limitation does not apply to reverse repurchase agreements,
deposits of assets to margin, guaranteed positions in futures, options, swaps or
forward contracts, or the segregation of assets in connection with such
contracts.
(e) The Funds do not currently intend to purchase any securities or enter into a
repurchase agreement if, as a result, more than 15% of their respective net
assets would be invested in repurchase agreements not entitling the holder to
payment of principal and interest within seven days and in securities that are
illiquid by virtue of legal or contractual restrictions on resale or the absence
of a readily available market. The Trustees, or the Funds' investment adviser
acting pursuant to authority delegated by the Trustees, may determine that a
readily available market exists for securities eligible for resale pursuant to
Rule 144A under the Securities Act of 1933, as amended, ("Rule 144A
Securities"), or any successor to such rule, and Section 4(2) commercial paper.
Accordingly, such securities may not be subject to the foregoing limitation.
(f) The Funds may not invest in companies for the purpose of exercising control
of management.
For purposes of the Funds' restriction on investing in a particular industry,
the Funds will rely primarily on industry classifications as published by
Bloomberg L.P. To the extent that Bloomberg L.P. classifications are so broad
that the primary economic characteristics in a single class are materially
different, the Funds may further classify issuers in accordance with industry
classifications as published by the Securities and Exchange Commission ("SEC").
Except as otherwise noted herein and in the Funds' prospectus, a Fund's
investment objectives and policies may be changed by a vote of the Trustees
without a vote of shareholders.
TYPES OF SECURITIES AND INVESTMENT TECHNIQUES
ILLIQUID INVESTMENTS
Each Fund may invest up to 15% of its net assets in illiquid investments (i.e.,
securities that are not readily marketable). The Trustees have authorized
Marsico Capital Management, LLC ("Marsico Capital") to make liquidity
determinations with respect to its securities, including Rule 144A Securities
and commercial paper. Under the guidelines established by the Trustees, Marsico
Capital will consider the following factors: 1) the frequency of trades and
quoted prices for the obligation; (2) the number of dealers willing to purchase
or sell the security and the number of other potential purchasers; 3) the
willingness of dealers to undertake to make a market in the security; and 4) the
nature of the security and the nature of marketplace trades, including the time
needed to dispose of the security, the method of soliciting offers and the
mechanics of the transfer. In the case of commercial paper, Marsico Capital will
also consider whether the paper is traded flat or in default as to principal and
interest and any ratings of the paper by a nationally recognized statistical
rating organization ("NRSRO"). A foreign security that may be freely traded on
or through the facilities of an offshore exchange or other established offshore
securities market is not deemed to be a restricted security subject to these
procedures.
ZERO COUPON, PAY-IN-KIND AND STEP COUPON SECURITIES
Each Fund may invest up to 10% of its assets in zero coupon, pay-in-kind and
step coupon securities. Zero coupon bonds are issued and traded at a discount
from their face value. They do not entitle the holder to any periodic payment of
interest prior to maturity. Step coupon bonds trade at a discount from their
face value and pay coupon interest. The coupon rate is low for an initial period
and then increases to a higher coupon rate thereafter. The discount from the
face amount or par value depends on the time remaining until cash payments
begin, prevailing interest rates, liquidity of the security and the perceived
credit quality of the issuer. Pay-in-kind bonds normally give the issuer an
option to pay cash at a coupon payment date or give the holder of the security a
similar bond with the same coupon rate and a face value equal to the amount of
the coupon payment that would have been made.
Current federal income tax law requires holders of zero coupon securities and
step coupon securities to report the portion of the original issue discount on
such securities that accrues during a given year as interest income, even though
the holders receive no cash payments of interest during the year. In order to
qualify as a "regulated investment company" under the Internal Revenue Code of
1986 and the regulations thereunder (the "Code"), a Fund must distribute its
investment company taxable income, including the original issue discount accrued
on zero coupon or step coupon bonds. Because a Fund will not receive cash
payments on a current basis in respect of accrued original-issue discount
payments begin, in some years that Fund may have to distribute cash obtained
from other sources in order to satisfy the distribution requirements under the
Code. A Fund might obtain such cash from selling other portfolio holdings which
might cause that Fund to incur capital gains or losses on the sale.
Additionally, these actions are likely to reduce the assets to which Fund
expenses could be allocated and to reduce the rate of return for that Fund. In
some circumstances, such sales might be necessary in order to satisfy cash
distribution requirements even though investment considerations might otherwise
make it undesirable for a Fund to sell the securities at the time.
Generally, the market prices of zero coupon, step coupon and pay-in-kind
securities are more volatile than the prices of securities that pay interest
periodically and in cash and are likely to respond to changes in interest rates
to a greater degree than other types of debt securities having similar
maturities and credit quality.
PASS-THROUGH SECURITIES
The Funds may invest in various types of pass-through securities, such as
mortgage-backed securities, asset-backed securities and participation interests.
A pass-through security is a share or certificate of interest in a pool of debt
obligations that have been repackaged by an intermediary, such as a bank or
broker-dealer. The purchaser of a pass-through security receives an undivided
interest in the underlying pool of securities. The issuers of the underlying
securities make interest and principal payments to the intermediary which are
passed through to purchasers, such as the Funds. The most common type of
pass-through securities are mortgage-backed securities. Government National
Mortgage Association ("GNMA") Certificates are mortgage-backed securities that
evidence an undivided interest in a pool of mortgage loans. GNMA Certificates
differ from bonds in that principal is paid back monthly by the borrowers over
the term of the loan rather than returned in a lump sum at maturity. A Fund will
generally purchase "modified pass-through" GNMA Certificates, which entitle the
holder to receive a share of all interest and principal payments paid and owned
on the mortgage pool, net of fees paid to the "issuer" and GNMA, regardless of
whether or not the mortgagor actually makes the payment. GNMA Certificates are
backed as to the timely payment of principal and interest by the full faith and
credit of the U.S. government.
The Federal Home Loan Mortgage Corporation ("FHLMC") issues two types of
mortgage pass-through securities: mortgage participation certificates ("PCs")
and guaranteed mortgage certificates ("GMCs"). PCs resemble GNMA Certificates in
that each PC represents a pro rate share of all interest and principal payments
made and owned on the underlying pool. FHLMC guarantees timely payments of
interest on PCs and the full return of principal. GMCs also represent a pro rata
interest in a pool of mortgages. However, these instruments pay interest
semiannually and return principal once a year in guaranteed minimum payments.
This type of security is guaranteed by FHLMC as to timely payment of principal
and interest but it is not guaranteed by the full faith and credit of the U.S.
government.
The Federal National Mortgage Association ("FNMA") issues guaranteed mortgage
pass-through certificates ("FNMA Certificates"). FNMA Certificates resemble GNMA
Certificates in that each FNMA Certificate represents a pro rata share of all
interest and principal payments made and owned on the underlying pool. This type
of security is guaranteed by FNMA as to timely payment of principal and interest
but it is not guaranteed by the full faith and credit of the U.S. government.
Except for GMCs, each of the mortgage-backed securities described above is
characterized by monthly payments to the holder, reflecting the monthly payments
made by the borrowers who received the underlying mortgage loans. The payments
to the security holders (such as the Funds), like the payments on the underlying
loans, represent both principal and interest. Although the underlying mortgage
loans are for a specified periods of time, such as 20 or 30 years, the borrowers
can, and typically do, pay them off sooner. Thus, the security holders
frequently receive prepayments of principal in addition to the principal that is
part of the regular monthly payments. A portfolio manager will consider
estimated prepayment rates in calculating the average weighted maturity of a
Fund. A borrower is more likely to prepay a mortgage that bears a relatively
high rate of interest. This means that in times of declining interest rates,
higher yielding mortgage-backed securities held by a Fund might be converted to
cash and that a Fund would be forced to accept lower interest rates when that
cash is used to purchase additional securities in the mortgage-backed securities
sector or in other investment sectors. Additionally, prepayments during such
periods will limit a Fund's ability to participate in as large a market gain as
may be experienced with a comparable security not subject to prepayment.
Asset-backed securities represent interests in pools of consumer loans and are
backed by paper or accounts receivables originated by banks, credit card
companies or other providers of credit. Generally, the originating bank or
credit provider is neither the obligor nor the guarantor of the security, and
interest and principal payments ultimately depend upon payment of the underlying
loans by individuals.
DEPOSITARY RECEIPTS
The Funds may invest in sponsored and unsponsored American Depositary Receipts
("ADRs"), which are receipts issued by an American bank or trust company
evidencing ownership of underlying securities issued by a foreign issuer. ADRs,
in registered form, are designed for use in U.S. securities markets. Unsponsored
ADRs may be created without the participation of the foreign issuer. Holders of
these ADRs generally bear all the costs of the ADR facility, whereas foreign
issuers typically bear certain costs in a sponsored ADR. The bank or trust
company depositary of an unsponsored ADR may be under no obligation to
distribute shareholder communications received from the foreign issuer or to
pass through voting rights. The Funds may also invest in European Depositary
Receipts ("EDRs"), Global Depositary Receipts ("GDRs") and in other similar
instruments representing securities of foreign companies. EDRs are receipts
issued by a European financial institution evidencing an arrangement similar to
that of ADRs. EDRs, in bearer form, are designed for use in European securities
markets.
OTHER INCOME-PRODUCING SECURITIES
Other types of income producing securities that the Funds may purchase include,
but are not limited to, the following types of securities:
Variable and floating rate obligations. These types of securities are relatively
long-term instruments that often carry demand features permitting the holder to
demand payment of principal at any time or at specified intervals prior to
maturity.
Standby commitments. These instruments, which are similar to a put, give a Fund
the option to obligate a broker, dealer or bank to repurchase a security held by
that Fund at a specified price.
Tender option bonds. Tender option bonds are relatively long-term bonds that are
coupled with the agreement of a third party (such as a broker, dealer or bank)
to grant the holders of such securities the option to tender the securities to
the institution at periodic intervals.
Inverse floaters. Inverse floaters are debt instruments whose interest bears an
inverse relationship to the interest rate on another security. The Funds will
not invest more than 5% of their respective assets in inverse floaters.
The Funds will purchase standby commitments, tender option bonds and instruments
with demand features primarily for the purpose of increasing the liquidity of
their portfolios.
REPURCHASE AND REVERSE REPURCHASE AGREEMENTS
In a repurchase agreement, a Fund purchases a security and simultaneously
commits to resell that security to the seller at an agreed-upon price on an
agreed upon date within a number of days (usually not more than seven) from the
date of purchase. The resale price reflects the purchase price plus an
agreed-upon incremental amount that is unrelated to the coupon rate or maturity
of the purchased security. A repurchase agreement involves the obligation of the
seller to pay the agreed-upon price, which obligation is in effect secured by
the value (at least equal to the amount of the agreed-upon resale price and
marked-to-market daily) of the underlying security or "collateral." A Fund may
engage in a repurchase agreement with respect to any security in which it is
authorized to invest. A risk associated with repurchase agreements is the
failure of the seller to repurchase the securities as agreed, which may cause a
Fund to suffer a loss if the market value of such securities decline before they
can be liquidated on the open market. In the event of bankruptcy or insolvency
of the seller, a Fund may encounter delays and incur costs in liquidating the
underlying security. Repurchase agreements that mature in more than seven days
will be subject to the 15% limit on illiquid investments. While it is not
possible to eliminate all risks from these transactions, it is the policy of the
Funds to limit repurchase agreements to those parties whose creditworthiness has
been reviewed and found satisfactory by Marsico Capital.
A Fund may use reverse repurchase agreements to provide cash to satisfy
unusually heavy redemption requests or for other temporary or emergency purposes
without the necessity of selling portfolio securities, or to earn additional
income on portfolio securities, such as Treasury bills or notes. In a reverse
repurchase agreement, a Fund sells a portfolio security to another party, such
as a bank or broker-dealer, in return for cash and agrees to repurchase the
instrument at a particular price and time. While a reverse repurchase agreement
is outstanding, a Fund will maintain cash and appropriate liquid assets in a
segregated custodial account to cover its obligation under the agreement. The
Funds will enter into reverse repurchase agreements only with parties that
Marsico Capital deems creditworthy. Using reverse repurchase agreements to earn
additional income involves the risk that the interest earned on the invested
proceeds is less than the expense of the reverse repurchase agreement
transaction. This technique may also have a leveraging effect on the Fund's
portfolio, although the Fund's intent to segregate assets in the amount of the
reverse repurchase agreement minimizes this effect.
HIGH -YIELD/HIGH-RISK SECURITIES
The Funds may invest up to 35% of net assets in debt securities that are rated
below investment grade (e.g., securities rated BB or lower by Standard & Poor's
Ratings Services ("Standard &Poor's") or Ba or lower by Moody's Investors
Service, Inc. ("Moody's")). Lower-rated securities involve a higher degree of
credit risk, which is the risk that the issuer will not make interest or
principal payments when due. In the event of an unanticipated default, a Fund
would experience a reduction in its income, and could expect a decline in the
market value of the securities so affected.
Each Fund may invest in unrated debt securities of foreign and domestic issuers.
Unrated debt, while not necessarily of lower quality than rated securities, may
not have as broad a market. Unrated debt securities will be included in the 35%
limit of each Fund unless the portfolio manager deems such securities to be the
equivalent of investment grade securities.
Subject to the above limits, each Fund may purchase defaulted securities only
when the portfolio manager believes, based upon their analysis of the financial
condition, results of operations and economic outlook of an issuer, that there
is potential for resumption of income payments and that the securities offer an
unusual opportunity for capital appreciation. Notwithstanding the portfolio
manager's belief as to the resumption of income, however, the purchase of any
security on which payment of interest or dividends is suspended involves a high
degree of risk. Such risk includes, among other things, the following:
Financial and Market Risks. Investments in securities that are in default
involve a high degree of financial and market risks that can result in
substantial or, at times, even total losses. Issuers of defaulted securities may
have substantial capital needs and may become involved in bankruptcy or
reorganization proceedings. Among the problems involved in investments in such
issuers is the fact that it may be difficult to obtain information about the
condition of such issuers. The market prices of such securities also are subject
to abrupt and erratic movements and above average price volatility, and the
spread between the bid and asked prices of such securities may be greater than
normally expected.
Disposition of Portfolio Securities. Although the Funds generally will purchase
securities for which their portfolio managers expect an active market to be
maintained, defaulted securities may be less actively traded than other
securities and it may be difficult to dispose of substantial holdings of such
securities at prevailing market prices. The Funds will limit holdings of any
securities to amounts that the portfolio manager believes could be readily sold,
and holdings of such securities would, in any event, be limited so as not to
limit the Funds' ability to readily dispose of securities to meet redemptions.
Other. Defaulted securities require active monitoring and may, at times, require
participation in bankruptcy or receivership proceedings on behalf of the Funds.
FUTURES, OPTIONS AND OTHER DERIVATIVE INSTRUMENTS
Futures Contracts. The Funds may enter into contracts for the purchase or sale
for future delivery of fixed-income securities, foreign currencies or contracts
based on financial indices, including indices of U.S. government securities,
foreign government securities, equity or fixed-income securities. U.S. futures
contracts are traded on exchanges which have been designated "contract markets"
by the CFTC and must be executed through a futures commission merchant ("FCM"),
or brokerage firm, which is a member of the relevant contract market. Through
their clearing corporations, the exchanges guarantee performance of the
contracts as between the clearing members of the exchange.
The buyer or seller of a futures contract is not required to deliver or pay for
the underlying instrument unless the contract is held until the delivery date.
However, both the buyer and seller are required to deposit "initial margin" for
the benefit of the FCM when the contract is entered into. Initial margin
deposits are equal to a percentage of the contract's value, as set by the
exchange on which the contract is traded, and may be maintained in cash or
certain other liquid assets by the Funds' custodian for the benefit of the FCM.
Initial margin payments are similar to good faith deposits or performance bonds.
Unlike margin extended by a securities broker, initial margin payments do not
constitute purchasing securities on margin for purposes of the Fund's investment
limitations. If the value of either party's position declines, that party will
be required to make additional "variation margin" payments for the benefit of
the FCM to settle the change in value on a daily basis. The party that has a
gain may be entitled to receive all or a portion of this amount. In the event of
the bankruptcy of the FCM that holds margin on behalf of a Fund, that Fund may
be entitled to return of margin owed to such Fund only in proportion to the
amount received by the FCM's other customers. Marsico Capital will attempt to
minimize the risk by careful monitoring of the creditworthiness of the FCMs with
which the Funds do business and by depositing margin payments in a segregated
account with the Funds' custodian.
The Funds intend to comply with guidelines of eligibility for exclusion from the
definition of the term "commodity pool operator" adopted by the CFTC and the
National Futures Association, which regulate trading in the futures markets. The
Funds will use futures contracts and related options primarily for bona fide
hedging purposes within the meaning of CFTC regulations. To the extent that the
Funds hold positions in futures contracts and related options that do not fall
within the definition of bona fide hedging transactions, the aggregate initial
margin and premiums required to establish such positions will not exceed 5% of
the fair market value of a Fund's net assets, after taking into account
unrealized profits and unrealized losses on any such contracts it has entered
into.
Although a Fund will segregate cash and liquid assets in an amount sufficient to
cover its open futures obligations, the segregated assets would be available to
that Fund immediately upon closing out the futures position, while settlement of
securities transactions could take several days. However, because a Fund's cash
that may otherwise be invested would be held uninvested or invested in other
liquid assets so long as the futures position remains open, such Fund's return
could be diminished due to the opportunity losses of foregoing other potential
investments.
A Fund's primary purpose in entering into futures contracts is to protect that
Fund from fluctuations in the value of securities or interest rates without
actually buying or selling the underlying debt or equity security. For example,
if the Fund anticipates an increase in the price of stocks, and it intends to
purchase stocks at a later time, that Fund could enter into a futures contract
to purchase a stock index as a temporary substitute for stock purchases. If an
increase in the market occurs that influences the stock index as anticipated,
the value of the futures contracts will increase, thereby serving as a hedge
against that Fund not participating in a market advance. This technique is
sometimes known as an anticipatory hedge. To the extent a Fund enters into
futures contracts for this purpose, the segregated assets maintained to cover
such Fund's obligations with respect to the futures contracts will consist of
other liquid assets from its portfolio in an amount equal to the difference
between the contract price and the aggregate value of the initial and variation
margin payments made by that Fund with respect to the futures contracts.
Conversely, if a Fund holds stocks and seeks to protect itself from a decrease
in stock prices, the Fund might sell stock index futures contracts, thereby
hoping to offset the potential decline in the value of its portfolio securities
by a corresponding increase in the value of the futures contract position. A
Fund could protect against a decline in stock prices by selling portfolio
securities and investing in money market instruments, but the use of futures
contracts enables it to maintain a defensive position without having to sell
portfolio securities.
If a Fund owns Treasury bonds and the portfolio manager expects interest rates
to increase, that Fund may take a short position in interest rate futures
contracts. Taking such a position would have much the same effect as that Fund
selling Treasury bonds in its portfolio. If interest rates increase as
anticipated, the value of the Treasury bonds would decline, but the value of
that Fund's interest rate futures contract would increase, thereby keeping the
net asset value of that Fund from declining as much as it may have otherwise.
If, on the other hand, a portfolio manager expects interest rates to decline,
that Fund may take a long position in interest rate futures contracts in
anticipation of later closing out the futures position and purchasing the bonds.
Although a Fund can accomplish similar results by buying securities with long
maturities and selling securities with short maturities, given the greater
liquidity of the futures market than the cash market, it may be possible to
accomplish the same result more easily and more quickly by using futures
contracts as an investment tool to reduce risk.
The ordinary spreads between prices in the cash and futures markets, due to
differences in the nature of those markets, are subject to distortions. First,
all participants in the futures market are subject to initial margin and
variation margin requirements. Rather than meeting additional variation margin
requirements, investors may close out futures contracts through offsetting
transactions which could distort the normal price relationship between the cash
and futures markets. Second, the liquidity of the futures market depends on
participants entering into offsetting transactions rather than making or taking
delivery of the instrument underlying a futures contract. To the extent
participants decide to make or take delivery, liquidity in the futures market
could be reduced and prices in the futures market distorted. Third, from the
point of view of speculators, the margin deposit requirements in the futures
market are less onerous than margin requirements in the securities market.
Therefore, increased participation by speculators in the futures market may
cause temporary price distortions. Due to the possibility of the foregoing
distortions, a correct forecast of general price trends by the portfolio manager
still may not result in a successful use of futures.
Futures contracts entail risks. Although the Funds believe that use of such
contracts will benefit the Funds, a Fund's overall performance could be worse
than if such Fund had not entered into futures contracts if the portfolio
manager's investment judgment proves incorrect. For example, if a Fund has
hedged against the effects of a possible decrease in prices of securities held
in its portfolio and prices increase instead, that Fund will lose part or all of
the benefit of the increased value of these securities because of offsetting
losses in its futures positions. In addition, if a Fund has insufficient cash,
it may have to sell securities from its portfolio to meet daily variation margin
requirements. Those sales may be, but will not necessarily be, at increased
prices which reflect the rising market and may occur at a time when the sales
are disadvantageous to such Fund. The prices of futures contracts depend
primarily on the value of their underlying instruments. Because there are a
limited number of types of futures contracts, it is possible that the
standardized futures contracts available to a Fund will not match exactly such
Fund's current or potential investments. A Fund may buy and sell futures
contracts based on underlying instruments with different characteristics from
the securities in which it typically invests - for example, by hedging
investments in portfolio securities with a futures contract based on a broad
index of securities - which involves a risk that the futures position will not
correlate precisely with the performance of such Fund's investments.
Futures prices can also diverge from the prices of their underlying instruments,
even if the underlying instruments closely correlate with a Fund's investments.
Futures prices are affected by factors such as current and anticipated
short-term interest rates, changes in volatility of the underlying instruments
and the time remaining until expiration of the contract. Those factors may
affect securities prices differently from futures prices. Imperfect correlations
between a Fund's investments and its futures positions also may result from
differing levels of demand in the futures markets and the securities markets,
from structural differences in how futures and securities are traded, and from
imposition of daily price fluctuation limits for futures contracts. A Fund may
buy or sell futures contracts with a greater or lesser value than the securities
it wishes to hedge or is considering purchasing in order to attempt to
compensate for differences in historical volatility between the futures contract
and the securities, although this may not be successful in all cases. If price
changes in a Fund's futures positions are poorly correlated with its other
investments, its futures positions may fail to produce desired gains or result
in losses that are not offset by the gains in that Fund's other investments.
Because futures contracts are generally settled within a day from the date they
are closed out, compared with a settlement period of three days for some types
of securities, the futures markets can provide superior liquidity to the
securities markets. Nevertheless, there is no assurance that a liquid secondary
market will exist for any particular futures contract at any particular time. In
addition, futures exchanges may establish daily price fluctuation limits for
futures contracts and may halt trading if a contract's price moves upward or
downward more than the limit in a given day. On volatile trading days when the
price fluctuation limit is reached, it may be impossible for a Fund to enter
into new positions or close out existing positions. If the secondary market for
a futures contract is not liquid because of price fluctuation limits or
otherwise, a Fund may not be able to promptly liquidate unfavorable futures
positions and potentially could be required to continue to hold a futures
position until the delivery date, regardless of changes in its value. As a
result, such Fund's access to other assets held to cover its futures positions
also could be impaired.
Options on Futures Contracts. The Funds may buy and write put and call options
on futures contracts. An option on a future gives a Fund the right (but not the
obligation) to buy or sell a futures contract at a specified price on or before
a specified date. The purchase of a call option on a futures contract is similar
in some respects to the purchase of a call option on an individual security.
Depending on the pricing of the option compared to either the price of the
futures contract upon which it is based or the price of the underlying
instrument, ownership of the option may or may not be less risky than ownership
of the futures contract or the underlying instrument. As with the purchase of
futures contracts, when a Fund is not fully invested it may buy a call option on
a futures contract to hedge against a market advance.
The writing of a call option on a futures contract constitutes a partial hedge
against declining prices of the security or foreign currency which is
deliverable under, or of the index comprising, the futures contract. If the
futures' price at the expiration of the option is below the exercise price, a
Fund will retain the full amount of the option premium which provides a partial
hedge against any decline that may have occurred in that Fund's portfolio
holdings. The writing of a put option on a futures contract constitutes a
partial hedge against increasing prices of the security or foreign currency
which is deliverable under, or of the index comprising, the futures contract. If
the futures' price at expiration of the option is higher than the exercise
price, a Fund will retain the full amount of the option premium which provides a
partial hedge against any increase in the price of securities which that Fund is
considering buying. If a call or put option a Fund has written is exercised,
such Fund will incur a loss which will be reduced by the amount of the premium
it received. Depending on the degree of correlation between the change in the
value of its portfolio securities and changes in the value of the futures
positions, a Fund's losses from existing options on futures may to some extent
be reduced or increased by changes in the value of portfolio securities.
The purchase of a put option on a futures contract is similar in some respects
to the purchase of protective put options on portfolio securities. For example,
a Fund may buy a put option on a futures contract to hedge its portfolio against
the risk of falling prices or rising interest rates.
The amount of risk a Fund assumes when it buys an option on a futures contract
is the premium paid for the option plus related transaction costs. In addition
to the correlation risks discussed above, the purchase of an option also entails
the risk that changes in the value of the underlying futures contract will not
be fully reflected in the value of the options bought.
Forward Contracts. A forward contract is an agreement between two parties in
which one party is obligated to deliver a stated amount of a stated asset at a
specified time in the future and the other party is obligated to pay a specified
amount for the assets at the time of delivery. The Funds may enter into forward
contracts to purchase and sell government securities, equity or income
securities, foreign currencies or other financial instruments. Forward contracts
generally are traded in an interbank market conducted directly between traders
(usually large commercial banks) and their customers. Unlike futures contracts,
which are standardized contracts, forward contracts can be specifically drawn to
meet the needs of the parties that enter into them. The parties to a forward
contract may agree to offset or terminate the contract before its maturity, or
may hold the contract to maturity and complete the contemplated exchange.
The following discussion summarizes the Fund's principal uses of forward foreign
currency exchange contracts ("forward currency contracts"). A Fund may enter
into forward currency contracts with stated contract values of up to the value
of that Fund's assets. A forward currency contract is an obligation to buy or
sell an amount of a specified currency for an agreed price (which may be in U.S.
dollars or a foreign currency). A Fund will exchange foreign currencies for U.S.
dollars and for other foreign currencies in the normal course of business and
may buy and sell currencies through forward currency contracts in order to fix a
price for securities it has agreed to buy or sell ("transaction hedge"). A Fund
also may hedge some or all of its investments denominated in a foreign currency
or exposed to foreign currency fluctuations against a decline in the value of
that currency relative to the U.S. dollar by entering into forward currency
contracts to sell an amount of that currency (or a proxy currency whose
performance is expected to replicate or exceed the performance of that currency
relative to the U.S. dollar) approximating the value of some or all of its
portfolio securities denominated in that currency ("position hedge") or by
participating in options or futures contracts with respect to the currency. A
Fund also may enter into a forward currency contract with respect to a currency
where the Fund is considering the purchase or sale of investments denominated in
that currency but has not yet selected the specific investments ("anticipatory
hedge"). In any of these circumstances a Fund may, alternatively, enter into a
forward currency contract to purchase or sell one foreign currency for a second
currency that is expected to perform more favorably relative to the U.S. dollar
if the portfolio manager believes there is a reasonable degree of correlation
between movements in the two currencies ("cross-hedge").
These types of hedging minimize the effect of currency appreciation as well as
depreciation, but do not eliminate fluctuations in the underlying U.S. dollar
equivalent value of the proceeds of or rates of return on a Fund's foreign
currency denominated portfolio securities. The matching of the increase in value
of a forward contract and the decline in the U.S. dollar equivalent value of the
foreign currency denominated asset that is the subject of the hedge generally
will not be precise. Shifting a Fund's currency exposure from one foreign
currency to another removes that Fund's opportunity to profit from increases in
the value of the original currency and involves a risk of increased losses to
such Fund if its portfolio manager's projection of future exchange rates is
inaccurate. Proxy hedges and cross-hedges may result in losses if the currency
used to hedge does not perform similarly to the currency in which hedged
securities are denominated. Unforeseen changes in currency prices may result in
poorer overall performance for a Fund than if it had not entered into such
contracts.
The Funds will cover outstanding forward currency contracts by maintaining
liquid portfolio securities denominated in or whose value is tied to, the
currency underlying the forward contract or the currency being hedged. To the
extent that a Fund is not able to cover its forward currency positions with
underlying portfolio securities, the Funds' custodian will segregate cash or
other liquid assets having a value equal to the aggregate amount of such Fund's
commitments under forward contracts entered into with respect to position
hedges, cross-hedges and anticipatory hedges. If the value of the securities
used to cover a position or the value of segregated assets declines, a Fund will
find alternative cover or segregate additional cash or liquid assets on a daily
basis so that the value of the covered and segregated assets will be equal to
the amount of such Fund's commitments with respect to such contracts. As an
alternative to segregating assets, a Fund may buy call options permitting such
Fund to buy the amount of foreign currency being hedged by a forward sale
contract or a Fund may buy put options permitting it to sell the amount of
foreign currency subject to a forward buy contract.
While forward contracts are not currently regulated by the CFTC, the CFTC may in
the future assert authority to regulate forward contracts. In such event, the
Funds' ability to utilize forward contracts may be restricted. In addition, a
Fund may not always be able to enter into forward contracts at attractive prices
and may be limited in its ability to use these contracts to hedge Fund assets.
Options on Foreign Currencies. The Funds may buy and write options on foreign
currencies in a manner similar to that in which futures or forward contracts on
foreign currencies will be utilized. For example, a decline in the U.S. dollar
value of a foreign currency in which portfolio securities are denominated will
reduce the U.S. dollar value of such securities, even if their value in the
foreign currency remains constant. In order to protect against such diminutions
in the value of portfolio securities, a Fund may buy put options on the foreign
currency. If the value of the currency declines, such Fund will have the right
to sell such currency for a fixed amount in U.S. dollars, thereby offsetting, in
whole or in part, the adverse effect on its portfolio.
Conversely, when a rise in the U.S. dollar value of a currency in which
securities to be acquired are denominated is projected, thereby increasing the
cost of such securities, a Fund may buy call options on the foreign currency.
The purchase of such options could offset, at least partially, the effects of
the adverse movements in exchange rates. As in the case of other types of
options, however, the benefit to a Fund from purchases of foreign currency
options will be reduced by the amount of the premium and related transaction
costs. In addition, if currency exchange rates do not move in the direction or
to the extent desired, a Fund could sustain losses on transactions in foreign
currency options that would require such Fund to forego a portion or all of the
benefits of advantageous changes in those rates.
The Funds may also write options on foreign currencies. For example, to hedge
against a potential decline in the U.S. dollar value of foreign currency
denominated securities due to adverse fluctuations in exchange rates, a Fund
could, instead of purchasing a put option, write a call option on the relevant
currency. If the expected decline occurs, the option will most likely not be
exercised and the decline in value of portfolio securities will be offset by the
amount of the premium received.
Similarly, instead of purchasing a call option to hedge against a potential
increase in the U.S. dollar cost of securities to be acquired, a Fund could
write a put option on the relevant currency which, if rates move in the manner
projected, will expire unexercised and allow that Fund to hedge the increased
cost up to the amount of the premium. As in the case of other types of options,
however, the writing of a foreign currency option will constitute only a partial
hedge up to the amount of the premium. If exchange rates do not move in the
expected direction, the option may be exercised and a Fund would be required to
buy or sell the underlying currency at a loss which may not be offset by the
amount of the premium. Through the writing of options on foreign currencies, a
Fund also may lose all or a portion of the benefits which might otherwise have
been obtained from favorable movements in exchange rates.
The Funds may write covered call options on foreign currencies. A call option
written on a foreign currency by a Fund is "covered" if that Fund owns the
foreign currency underlying the call or has an absolute and immediate right to
acquire that foreign currency without additional cash consideration (or for
additional cash consideration held in a segregated account by its custodian)
upon conversion or exchange of other foreign currencies held in its portfolio. A
call option is also covered if a Fund has a call on the same foreign currency in
the same principal amount as the call written if the exercise price of the call
held (i) is equal to or less than the exercise price of the call written or (ii)
is greater than the exercise price of the call written, if the difference is
maintained by such Fund in cash or other liquid assets in a segregated account
with the Funds' custodian.
The Funds also may write call options on foreign currencies for cross-hedging
purposes. A call option on a foreign currency is for cross-hedging purposes if
it is designed to provide a hedge against a decline due to an adverse change in
the exchange rate in the U.S. dollar value of a security which a Fund owns or
has the right to acquire and which is denominated in the currency underlying the
option. Call options on foreign currencies which are entered into for
cross-hedging purposes are not covered. However, in such circumstances, a Fund
will collateralize the option by segregating cash or other liquid assets in an
amount not less than the value of the underlying foreign currency in U.S.
dollars marked-to-market daily.
Options on Securities. In an effort to increase current income and to reduce
fluctuations in net asset value, the Funds may write covered put and call
options and buy put and call options on securities that are traded on United
States and foreign securities exchanges and over-the-counter. The Funds may
write and buy options on the same types of securities that the Funds may
purchase directly.
A put option written by a Fund is "covered" if that Fund (i) segregates cash not
available for investment or other liquid assets with a value equal to the
exercise price of the put with the Funds' custodian or (ii) holds a put on the
same security and in the same principal amount as the put written and the
exercise price of the put held is equal to or greater than the exercise price of
the put written. The premium paid by the buyer of an option will reflect, among
other things, the relationship of the exercise price to the market price and the
volatility of the underlying security, the remaining term of the option, supply
and demand and interest rates.
A call option written by a Fund is "covered" if that Fund owns the underlying
security covered by the call or has an absolute and immediate right to acquire
that security without additional cash consideration (or for additional cash
consideration held in a segregated account by the Funds' custodian) upon
conversion or exchange of other securities held in its portfolio. A call option
is also deemed to be covered if a Fund holds a call on the same security and in
the same principal amount as the call written and the exercise price of the call
held (i) is equal to or less than the exercise price of the call written or (ii)
is greater than the exercise price of the call written if the difference is
maintained by that Fund in cash and other liquid assets in a segregated account
with its custodian.
The Funds also may write call options that are not covered for cross-hedging
purposes. A Fund collateralizes its obligation under a written call option for
cross-hedging purposes by segregating cash or other liquid assets in an amount
not less than the market value of the underling security, marked-to-market
daily. A Fund would write a call option for cross-hedging purposes, instead of
writing a covered call option, when the premium to be received from the
cross-hedge transaction would exceed that which would be received from writing a
covered call option and its portfolio manager believes that writing the option
would achieve the desired hedge. The writer of an option may have no control
over when the underlying securities must be sold, in the case of a call option,
or bought, in the case of a put option, since with regard to certain options,
the writer may be assigned an exercise notice at any time prior to the
termination of the obligation. Whether or not an option expires unexercised, the
writer retains the amount of the premium. This amount, of course, may, in the
case of a covered call option, be offset by a decline in the market value of the
underlying security during the option period. If a call option is exercised, the
writer experiences a profit or loss from the sale of the underlying security. If
a put option is exercised, the writer must fulfill the obligation to buy the
underlying security at the exercise price, which will usually exceed the then
market value of the underlying security.
The writer of an option that wishes to terminate is obligation may effect a
"closing purchase transaction." This is accomplished by buying an option of the
same series as the option previously written. The effect of the purchase is that
the writer's position will be canceled by the clearing corporation. However, a
writer may not effect a closing purchase transaction after being notified of the
exercise of an option. Likewise, an investor who is the holder of an option may
liquidate its position by effecting a "closing sale transaction." This is
accomplished by selling an option of the same series as the option previously
bought. There is no guarantee that either a closing purchase or a closing sale
transaction can be effected.
In the case of a written call option, effecting a closing transaction will
permit a Fund to write another call option on the underlying security with
either a different exercise price or expiration date or both. In the case of a
written put option, such transaction will permit a Fund to write another put
option to the extent that the exercise price is secured by other liquid assets.
Effecting a closing transaction also will permit a Fund to use the cash or
proceeds from the concurrent sale of any securities subject to the option for
other investments. If a Fund desires to sell a particular security from its
portfolio on which it has written a call option, such Fund will effect a closing
transaction prior to or concurrent with the sale of the security.
A Fund will realize a profit from a closing transaction if the price of the
purchase transaction is less than the premium received from writing the option
or the price received from a sale transaction is more than the premium paid to
buy the option. A Fund will realize a loss from a closing transaction if the
price of the purchase transaction is more than the premium received from writing
the option or the price received from a sale transaction is a less than the
premium paid to buy the option. Because increases in the market of a call option
generally will reflect increases in the market price of the underlying security,
any loss resulting from the repurchase of a call option is likely to be offset
in whole or in part by appreciation of the underlying security owned by a Fund.
An option position may be closed out only where a secondary market for an option
of the same series exists. If a secondary market does not exist, the Fund may
not be able to effect closing transactions in particular options and the Fund
would have to exercise the options in order to realize any profit. If a Fund is
unable to effect a closing purchase transaction in a secondary market, it will
not be able to sell the underlying security until the option expires or it
delivers the underlying security upon exercise. The absence of a liquid
secondary market may be due to the following: (i) insufficient trading interest
in certain options, (ii) restrictions imposed by a national securities exchange
("Exchange") on which the option is traded on opening or closing transactions or
both, (iii) trading halts, suspensions or other restrictions imposed with
respect to particular classes or series of options or underlying securities,
(iv) unusual or unforeseen circumstances that interrupt normal operations on an
Exchange, (v) the facilities of an Exchange or of the Options Clearing
Corporation ("OCC") may not at all times be adequate to handle current trading
volume, or (vi) one or more Exchanges could, for economic or other reasons,
decide or be compelled at some future date to discontinue the trading of options
(or a particular class or series of options), in which event the secondary
market on that Exchange (or in that class or series of options) would cease to
exist, although outstanding options on that Exchange that had been issued by the
OCC as a result of trades on that Exchange would continue to be exercisable in
accordance with their terms.
A Fund may write options in connection with buy-and-write transactions. In other
words, a Fund may buy a security and then write a call option against that
security. The exercise price of such call will depend upon the expected price
movement of the underlying security. The exercise price of a call option may be
below ("in-the-money"), equal to ("at-the-money") or above ("out-of-the-money")
the current value of the underlying security at the time the option is written.
Buy-and-write transactions using in-the-money call options may be used when it
is expected that the price of the underlying security will remain flat or
decline moderately during the option period. Buy-and-write transactions using
at-the-money call options may be used when it is expected that the price of the
underlying security will remain fixed or advance moderately during the option
period. Buy-and-write transactions using out-of-the-money call options may be
used when it is expected that the premiums received from writing the call option
plus the appreciation in the market price of the underlying security up to the
exercise price will be greater than the appreciation in the price of the
underlying security alone. If the call options are exercised in such
transactions, a Fund's maximum gain will be the premium received by it for
writing the option, adjusted upwards or downwards by the difference between that
Fund's purchase price of the security and the exercise price. If the options are
not exercised and the price of the underlying security declines, the amount of
such decline will be offset by the amount of premium received.
The writing of covered put options is similar in terms of risk and return
characteristics to buy-and-write transactions. If the market price of the
underlying security rises or otherwise is above the exercise price, the put
option will expire worthless and a Fund's gain will be limited to the premium
received. If the market price of the underlying security declines or otherwise
is below the exercise price, a Fund may elect to close the position or take
delivery of the security at the exercise price and that Fund's return will be
the premium received from the put options minus the amount by which the market
price of the security is below the exercise price.
A Fund may buy put options to hedge against a decline in the value of its
portfolio. By using put options in this way, a Fund will reduce any profit it
might otherwise have realized in the underlying security by the amount of the
premium paid for the put option and by transaction costs.
A Fund may buy call options to hedge against an increase in the price of
securities that it may buy in the future. The premium paid for the call option
plus any transaction costs will reduce the benefit, if any, realized by such
Fund upon exercise of the option, and, unless the price of the underlying
security rises sufficiently, the option may expire worthless to that Fund.
Eurodollar instruments. A Fund may make investments in Eurodollar instruments.
Eurodollar instruments are U.S. dollar-denominated futures contracts or options
thereon which are linked to the London Interbank Offered Rate ("LIBOR"),
although foreign currency-denominated instruments are available from time to
time. Eurodollar futures contracts enable purchasers to obtain a fixed rate for
the lending of funds and sellers to obtain a fixed rate for borrowings. A Fund
might use Eurodollar futures contracts and options thereon to hedge against
changes in LIBOR, to which many interest rate swaps and fixed-income instruments
are linked.
Swaps and Swap-Related Products. A Fund may enter into interest rate swaps, caps
and floors on either an asset-based or liability-based basis, depending upon
whether it is hedging its assets or its liabilities, and will usually enter into
interest rate swaps on a net basis (i.e., the two payment streams are netted
out, with a Fund receiving or paying, as the case may be, only the net amount of
the two payments). The net amount of the excess, if any, of a Fund's obligations
over its entitlement with respect to each interest rate swap will be calculated
on a daily basis and an amount of cash or other liquid assets having an
aggregate net asset value at least equal to the accrued excess will be
maintained in a segregated account by the Funds' custodian. If a Fund enters
into an interest rate swap on other than a net basis, it would maintain a
segregated account in the full amount accrued on a daily basis of its
obligations with respect to the swap. A Fund will not enter into any interest
rate swap, cap or floor transaction unless the unsecured senior debt or the
claims-paying ability of the other party thereto is rated in one of the three
highest rating categories of at least one NRSRO at the time of entering into
such transaction. Marsico Capital will monitor the creditworthiness of all
counterparties on an ongoing basis. If there is a default by the other party to
such a transaction, a Fund will have contractual remedies pursuant to the
agreements related to the transaction.
The swap market has grown substantially in recent years with a large number of
banks and investment banking firms acting both as principals and as agents
utilizing standardizing swap documentation. Marsico Capital has determined that,
as a result, the swap market has become relatively liquid. Caps and floors are
more recent innovations for which standardized documentation has not yet been
developed and, accordingly, they are less liquid than swaps. To the extent a
Fund sells (i.e., writes) caps and floors, it will segregate cash or other
liquid assets having an aggregate net asset value at least equal to the full
amount accrued on a daily basis, of its obligations with respect to any caps or
floors.
There is no limit on the amount of interest rate swap transactions that may be
entered into by a Fund. These transactions may in some instances involve the
delivery of securities or other underlying assets by a Fund or its counterparty
to collateralize obligations under the swap. Under the documentation currently
used in those markets, the risk of loss with respect to interest rate swaps is
limited to the net amount of the payments that a Fund is contractually obligated
to make. If the other party to an interest rate swap that is not collateralized
defaults, a Fund would risk the loss of the net amount of the payments that it
contractually is entitled to receive. A Fund may buy and sell (i.e., write) caps
and floors without limitation, subject to the segregation requirement described
above.
Additional Risks of Options on Foreign Currencies, Forward Contracts and Foreign
Instruments. Unlike transactions entered into by the Funds in futures contracts
, options on foreign currencies and forward contracts are not traded on contract
markets regulated by the CFTC or (with the exception of certain foreign currency
options) by the SEC. To the contrary, such instruments are traded through
financial institutions acting as market-makers, although foreign currency
options are also traded on certain Exchanges, such as the Philadelphia Stock
Exchange and the Chicago Board Options Exchange, subject to SEC regulation.
Similarly, options on currencies may be traded over-the-counter. In an
over-the-counter trading environment, many of the protections afforded to
Exchange participants will not be available. For example, there are no daily
price fluctuation limits, and adverse market movements could therefore continue
to an unlimited extent over a period of time. Although the buyer of an option
cannot lose more than the amount of the premium plus related transaction costs,
this entire amount could be lost. Moreover, an option writer and buyer or seller
of futures or forward contracts could lose amounts substantially in excess of
any premium received or initial margin or collateral posted due to the potential
additional margin and collateral requirements associated with such positions.
Options on foreign currencies traded on Exchanges are within the jurisdiction of
the SEC, as are other securities traded on Exchanges. As a result, many of the
protections provided to traders on organized Exchanges will be available with
respect to such transactions. In particular, all foreign currency option
positions entered into on an Exchange are cleared and guaranteed by the OCC,
thereby reducing the risk of counterparty default. Further, a liquid secondary
market in options traded on an Exchange may be more readily available than in
the over-the-counter market, potentially permitting a Fund to liquidate open
positions at a profit prior to exercise or expiration, or to limit losses in the
event of adverse market movements.
The purchase and sale of exchange-traded foreign currency options, however, is
subject to the risks of the availability of a liquid secondary market described
above, as well as the risks regarding adverse market movements, margining of
options written, the nature of the foreign currency market, possible
intervention by governmental authorities and the effects of other political and
economic events. In addition, exchange-traded options on foreign currencies
involve certain risks not presented by the over-the-counter market. For example,
exercise and settlement of such options must be made exclusively through the
OCC, which has established banking relationships in applicable foreign countries
for this purpose. As a result, the OCC may, if it determines that foreign
governmental restrictions or taxes would prevent the orderly settlement of
foreign currency option exercises, or would result in undue burdens on the OCC
or its clearing member, impose special procedures on exercise and settlement,
such as technical changes in the mechanics of delivery of currency, the fixing
of dollar settlement prices or prohibitions on exercise.
In addition, options on U.S. government securities, futures contracts, options
on futures contracts, forward contracts and options on foreign currencies may be
traded on foreign exchanges and over-the-counter in foreign countries. Such
transactions are subject to the risk of governmental actions affecting trading
in or the prices of foreign currencies or securities. The value of such
positions also could be adversely affected by (i) other complex foreign
political and economic factors, (ii) lesser availability than in the United
States of data on which to make trading decisions, (iii) delays in a Fund's
ability to act upon economic events occurring in foreign markets during
non-business hours in the United States, (iv) the imposition of different
exercise and settlement terms and procedures and margin requirements than in the
United States, and (v) low trading volume.
GENERAL CHARACTERISTICS OF FOREIGN SECURITIES.
Foreign securities involve certain inherent risks that are different from those
of domestic issuers, including political or economic instability of the issuer
or the country of issue, diplomatic developments which could affect U.S.
investments in those countries, changes in foreign currency and exchange rates
and the possibility of adverse changes in investment or exchange control
regulations. As a result of these and other factors, foreign securities
purchased by the Funds may be subject to greater price fluctuation than
securities of U.S. companies.
Most foreign stock markets are not as large or liquid as in the United States,
fixed commissions on foreign stock exchanges are generally higher than the
negotiated commissions on U.S. exchanges, and there is generally less government
supervision and regulation of foreign stock exchanges, brokers and companies
than in the United States. Investors should recognize that foreign markets have
different clearance and settlement procedures and in certain markets there have
been times when settlements have been unable to keep pace with the volume of
securities transactions, making it difficult to conduct such transactions.
Delays in settlement could result in temporary periods when assets of the Funds
are uninvested and no return is earned thereon. The inability of the Funds to
make intended security purchases due to settlement problems could cause the
Funds to miss attractive investment opportunities. Inability to dispose of
portfolio securities due to settlement problems either could result in losses to
the Funds due to subsequent declines in value of the portfolio security or, if
the Funds have entered into a contract to sell the security, could result in a
possible liability to the purchaser. Payment for securities without delivery may
be required in certain foreign markets. Further, the Fund may encounter
difficulties or be unable to pursue legal remedies and obtain judgments in
foreign courts. Foreign governments can also levy confiscatory taxes,
expropriate assets, and limit repatriations of assets. Typically, there is less
publicly available information about a foreign company than about a U.S.
company, and foreign companies may be subject to less stringent reserve,
auditing and reporting requirements. It may be more difficult for the Funds'
agents to keep currently informed about corporate actions such as stock
dividends or other matters which may affect the prices of portfolio securities.
Communications between the United States and foreign countries may be less
reliable than within the United States, thus increasing the risk of delayed
settlements of portfolio transactions or loss of certificates for portfolio
securities. Individual foreign economies may differ favorably or unfavorably
from the U.S. economy in such respects as growth of gross national product, rate
of inflation, capital reinvestment, resource self-sufficiency and balance of
payments position.
Because investments in foreign securities will usually involve currencies of
foreign countries, and because the Funds may hold foreign currencies, the value
of the assets of the Funds as measured in U.S. dollars may be affected favorably
or unfavorably by changes in foreign currency exchange rates and exchange
control regulations, and the Funds may incur costs in connection with
conversions between various currencies. Although the Funds valued their assets
daily in terms of U.S. dollars, they do not intend to convert its holdings of
foreign currencies into U.S. dollars on a daily basis. It will do so from time
to time, and investors should be aware of the costs of currency conversion.
Although foreign exchange dealers do not charge a fee for conversion, they do
realize a profit based on the difference (the "spread") between the prices at
which they are buying and selling various currencies. Thus, a dealer may offer
to sell a foreign currency to the Funds at one rate, while offering a lesser
rate of exchange should the Funds desire to resell that currency to the dealer.
The Funds will conduct their foreign currency exchange transactions either on a
spot (i.e., cash) basis at the spot rate prevailing in the foreign currency
exchange market, or through entering into forward foreign currency exchange
contracts or purchasing or writing put or call options on foreign currencies.
<PAGE>
TRUSTEES AND OFFICERS
The Trustees and Officers of the Funds and their principal occupations during
the past five years are set forth below.
<TABLE>
<S> <C> <C>
Principal Occupations During the
Name, Address and Age Positions held with the Fund Past Five Years
- --------------------------------------- -------------------------------------- --------------------------------------
Thomas F. Marsico1 Trustee, President, Chief Executive President and Chief Executive
1200 17th Street Officer, and Chief Investment Officer, Marsico Capital Management,
Suite 1300 Officer LLC (September 1997 - present);
Denver, CO 80202; Executive Vice President, Janus
DOB: 1955 Investment Fund (1990 - 1997).
Christopher J. Marsico1 Trustee and Chief Financial Officer Vice President and Chief Financial
1200 17th Street Officer, Marsico Capital Management,
Suite 1300 LLC (September 1997 - present); Vice
Denver, CO 80202; President, Corporate Development, U
DOB: 1961 S WEST, Inc. (February 1997 - September
1997); Vice President, U S WEST Capital
Corporation (January 1996 - January 1997);
Vice President, U S WEST Financial Services,
Inc. (March 1986 - December 1996).
Barbara M. Japha1 Trustee Vice President and General Counsel,
1200 17th Street Marsico Capital Management, LLC
Suite 1300 (September 1997 - present); Vice
Denver, CO 80202; President - Law, U S WEST, Inc.
DOB: 1953 (September 1989 - September 1997)
</TABLE>
1 Trustees who are "interested persons" of the Funds, as defined in the
Investment Company Act of 1940, as amended, (the "1940 Act"). The
Trustees of the Funds who are officers or employees of the investment
adviser receive no remuneration from the Funds. Each of the other
Trustees is paid an annual retainer of $_____ and a fee of $_____ for
each meeting attended and is reimbursed for the expenses of attending
meetings.
<PAGE>
The following table sets forth information regarding compensation of the
Trustees by the Funds for the fiscal year ended _____________________. Officers
of the Funds and Trustees who are interested persons of the Funds do not receive
any compensation from the Funds.
COMPENSATION TABLE2
(FISCAL PERIOD ENDED DECEMBER 31, 1997)
<TABLE>
<S> <C> <C> <C> <C>
Pension or Total Compensation
Retirement Benefits from Registrant and
Aggregate Accrued as part of Estimated Annual Fund Complex Paid to
Compensation from Fund expenses Benefits Upon Directors
Name of Director Registrant Retirement
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
Thomas F. Marsico 0 0 0 0
Christopher J. Marsico 0 0 0 0
Barbara M. Japha 0 0 0 0
</TABLE>
As of ________________, 1997, the Officers and Trustees of the Funds owned
_____% of the outstanding shares of capital stock of the Funds. The Funds know
of no person who owns beneficially more than 5% of the shares of beneficial
interest of the Funds.
INVESTMENT ADVISORY AND OTHER SERVICES
The Advisor of the Funds is Marsico Capital Management, LLC. Under the terms of
the Advisory Agreement, Marsico Capital furnishes overall investment management
for the Funds, provides research and credit analysis, oversees the purchase and
sales of portfolio securities, maintains books and records with respect to the
Funds' securities transactions and provides periodic and special reports to the
Board of Trustees as required.
For the advisory services provided and expenses assumed by it, the Advisor has
agreed to a fee from each Fund, computed daily and payable monthly, at an annual
rate of _____% of average daily net assets.
The Trust's Advisory Agreement, with respect to each Fund, will continue in
effect for a period of two years from its effective date. If not sooner
terminated, the Advisory Agreement will continue in effect for successive one
year periods thereafter, provided that each continuance is specifically approved
annually by (a) the vote of a majority of the Board of Trustees who are not
parties to the Advisory Agreement or interested persons (as defined in the 1940
Act), cast in person at a meeting called for the purpose of voting on approval,
and (b) either (i) with respect to a Fund, the vote of a majority of the
outstanding voting securities of that Fund, or (ii) the vote of a majority of
the Board of Trustees. The Advisory Agreement is terminable by vote of the Board
of Trustees, or with respect to a Fund, by the holders of a majority of the
outstanding voting securities of that Fund, at any time without penalty, on 60
days' written notice to the Advisor. The Advisor may also terminate its advisory
relationship with a Fund without penalty on 90 days' written notice to the
Trust. The Advisory Agreement terminates automatically in the event of its
assignment (as defined in the 1940 Act).
DISTRIBUTION PLAN
The Funds have adopted a Service and Distribution Plan (the "Plan") pursuant to
Rule 12b-1 under the 1940 Act. The Plan authorizes payments by the Funds in
connection with the distribution of their shares at an annual rate, as
2 Compensation is for the fiscal year ended December 31, 1997.
<PAGE>
determined from time-to-time by the Board of Trustees, or up to 0.25% of the
Funds' average daily net assets. Payments may be made by the Funds under the
Plan for the purpose of financing any activity primarily intended to result in
the sales of shares of the Funds as determined by the Board of Trustees. Such
activities typically include advertising; compensation for sales and sales
marketing activities of Financial Service Agents and others, such as dealers or
distributors; shareholder account servicing; production and dissemination of
prospectuses and sales and marketing materials; and capital or other expenses of
associated equipment, rent, salaries, bonuses, interest and other overhead. To
the extent any activity is one which the Funds may finance without a Plan, the
Funds may also make payments to finance such activity outside of the Plan and
not subject to its limitations. Payments under the Plan are not tied exclusively
to actual distribution and service expenses, and the payments may exceed
distribution and service expenses actually incurred.
Administration of the Plan is regulated by Rule 12b-1 under the 1940 Act, which
includes requirements that the Board of Trustees receive and review at least
quarterly reports concerning the nature and qualification of expenses which are
made, that the Board of Trustees approve all agreements implementing the Plan
and that the Plan may be continued from year-to-year only if the Board of
Trustees concludes at least annually that continuation of the Plan is likely to
benefit shareholders.
PORTFOLIO TURNOVER
While it is difficult to predict, the investment adviser expects that the annual
portfolio turnover rates of the Focus Fund and the Growth and Income Fund will
not exceed _____% and _____%, respectively. Higher portfolio turnover rates
involve greater transaction costs to the Funds and may result in the realization
of net capital gains which would be taxable to shareholders when distributed.
PORTFOLIO TRANSACTIONS AND BROKERAGE
Subject to the supervision of the Trustees, decisions to buy and sell securities
for the Funds and negotiation of their brokerage commission rates are made by
the Adviser. Transactions on United States stock exchanges involve the payment
by the Funds of negotiated brokerage commissions. There is generally no stated
commission in the case of securities traded in the over-the-counter market but
the price paid by the Funds usually includes an undisclosed dealer commission or
mark-up. In certain instances, the Funds may make purchases of underwritten
issues at prices which include underwriting fees.
In selecting a broker to execute each particular transaction, the Adviser takes
the following into consideration: the best net price available; the reliability,
integrity and financial condition of the broker; the size and difficulty in
executing the order; and the value of the expected contribution of the broker to
the investment performance of the Funds on a continuing basis. Accordingly, the
cost of the brokerage commissions to the Funds in any transaction may be greater
than that available from other brokers if the difference is reasonably justified
by other aspects of the portfolio execution services offered. For example, the
Adviser will consider the research and investment services provided by brokers
or dealers who effect or are parties to portfolio transactions of the Funds or
the Adviser's other clients. Such research and investment services include
statistical and economic data and research reports on particular companies and
industries as well as research software. Subject to such policies and procedures
as the Trustees may determine, the Adviser shall not be deemed to have acted
unlawfully or to have breached any duty solely by reason of its having caused
the Funds to pay a broker that provides research services to the investment
adviser an amount of commission for effecting a portfolio investment transaction
in excess of the amount another broker would have charged for effecting that
transaction, if the investment adviser determines in good faith that such amount
of commission was reasonable in relation to the value of the research service
provided by such broker viewed in terms of either that particular transaction or
the investment adviser's ongoing responsibilities with respect to the Funds.
Research and investment information is provided by these and other brokers at no
cost to the Adviser and is available for the benefit of other accounts advised
by the investment adviser and its affiliates, and not all of the information
will be used in connection with the Funds. While this information may be useful
<PAGE>
in varying degrees and may tend to reduce the Adviser's expenses, it is not
possible to estimate its value and in the opinion of the Adviser it does not
reduce the Adviser's expenses in a determinable amount. The extent to which the
Adviser makes use of statistical, research and other services furnished by
brokers is considered by the investment adviser in the allocation of brokerage
business but there is no formula by which such business is allocated. The
Adviser does so in accordance with its judgment of the best interests of the
Funds and their shareholders.
PERFORMANCE INFORMATION
From time to time, quotations of the Funds' performances may be included in
advertisements, sales literature or reports to shareholders or prospective
investors. These performance figures are calculated in the following manner.
AVERAGE ANNUAL TOTAL RETURN
Average annual total return is the average annual compound rate of return for
periods of one year, five years and ten years, all ended on the last day of a
recent calendar quarter. Average annual total return quotations reflect changes
in the price of a Fund's shares and assume that all dividends and capital gains
distributions during the respective periods were reinvested in Fund shares.
Average annual total return is calculated by computing the average annual
compound rates of return of a hypothetical investment over such periods,
according to the following formula (average annual total return is then
expressed as a percentage):
1/n
T = (ERV/P) - 1
Where:
T = average annual total return
P = a hypothetical initial investment of $1,000
n = number of years
ERV = ending redeemable value: ERV is the value,
at the end of the applicable period, of a
hypothetical $1,000 investment made at the
beginning of the applicable period.
It should be noted that average annual total return is based on historical
earnings and is not intended to indicate future performance. Average annual
total return for the Fund will vary based on changes in market conditions and
the level of the Fund's expenses.
In connection with communicating its average annual total return to current or
prospective shareholders, the Funds also may compare these figures to the
performance of other mutual funds tracked by mutual fund rating services or to
unmanaged indices which may assume reinvestment of dividends but generally do
not reflect deductions for administrative and management costs.
COMPARISON OF PORTFOLIO PERFORMANCE
Comparison of the quoted non-standardized performance of various investments is
valid only if performance is calculated in the same manner. Since there are
different methods of calculating performance, investors should consider the
effect of the methods used to calculate performance when comparing performance
of a Fund with performance quoted with respect to other investment companies or
types of investments.
In connection with communicating its performance to current or prospective
shareholders, a Fund also may compare these figures to the performance of
unmanaged indices which may assume reinvestment of dividends or interest but
generally do not reflect deductions for administrative and management costs.
Examples include, but are not limited to the Dow Jones Industrial Average, the
Consumer Price Index, Standard & Poor's 500 Composite Stock Price Index (S&P
500), the NASDAQ OTC Composite Index, the NASDAQ Industrials Index, and the
Russell 2000 Index.
From time to time, in advertising, marketing and other Fund literature, the
performance of a Fund may be compared to the performance of broad groups of
mutual funds with similar investment goals, as tracked by independent
organizations such as Investment Company Data, Inc., Lipper Analytical Services,
Inc., CDA Investment Technologies, Inc., Morningstar, Inc., Value Line Mutual
Fund Survey and other independent organizations. When these organizations'
tracking results are used, a Fund will be compared to the appropriate fund
category, that is, by fund objective and portfolio holdings or the appropriate
volatility grouping, where volatility is a measure of a Fund's risk. From time
to time, the average price-earnings ratio and other attributes of a Fund's or
the model portfolio's securities, may be compared to the average price-earnings
ratio and other attributes of the securities that comprise the S&P 500.
Statistical and other information, as provided by the Social Security
Administration, may be used in marketing materials pertaining to retirement
planning in order to estimate future payouts of social security benefits.
Estimates may be used on demographic and economic data.
Marketing and other Fund literature may include a description of the potential
risks and rewards associated with an investment in a Fund. The description may
include a "risk/return spectrum" which compares a Fund to broad categories of
funds, such as money market, bond or equity funds, in terms of potential risks
and returns. [confirm]. Money market funds are designed to maintain a constant
$1.00 share price and have a fluctuating yield. Share price, yield and total
return of a bond fund will fluctuate. The share price and return of an equity
fund also will fluctuate. The description may also compare a Fund to bank
products, such as certificates of deposit. Unlike mutual funds, certificates of
deposit are insured up to $100,000 by the U.S. government and offer a fixed rate
of return.
Risk/return spectrums also may depict funds that invest in both domestic and
foreign securities or a combination of bond and equity securities.
TAX STATUS
Each Fund intends to qualify as a regulated investment company under Subchapter
M of the Internal Revenue Code of 1986, as amended (the "Code"). Accordingly,
each Fund generally must, among other things, (a) derive in each taxable year at
least 90% of its gross income from dividends, interest, payments with respect to
certain securities loans, and gains from the sale or other disposition of stock,
securities or foreign currencies, or other income derived with respect to its
business of investing in such stock, securities or currencies; and (b) diversify
its holdings so that, at the end of each fiscal quarter, (i) at least 50% of the
market value of its assets is represented by cash, U.S. Government securities,
the securities of other regulated investment companies and other securities,
with such other securities limited, in respect of any one issuer, to an amount
not greater than 5% of the value of the Fund's total assets and 10% of the
outstanding voting securities of such issuer, and (ii) not more than 25% of the
value of its total assets is invested in the securities of any one issuer (other
than U.S. Government securities and the securities of other regulated investment
companies).
As a regulated investment company, a Fund generally will not be subject to U.S.
federal income tax on income and gains that it distributes to shareholders, if
at least 90% of each Fund's investment company taxable income (which includes,
among other items, dividends, interest and the excess of any net short-term
capital gains over net long-term capital losses) for the taxable year is
distributed. Each Fund intends to distribute substantially all of such income.
Amounts not distributed on a timely basis in accordance with a calendar year
distribution requirement are subject to a nondeductible 4% excise tax at the
Fund level. To avoid the tax, each Fund must distribute during each calendar
year an amount equal to the sum of (1) at least 98% of its ordinary income (not
taking into account any capital gains or losses) for the calendar year, (2) at
least 98% of its capital gains in excess of its capital losses (adjusted for
certain ordinary losses) for a one-year period generally ending on October 31 of
the calendar year, and (3) all ordinary income and capital gains for previous
years that were not distributed during such years. To avoid application of the
excise tax, each Fund intends to make distributions in accordance with the
calendar year distribution requirement.
A distribution will be treated as paid on December 31 of the current calendar
year if it is declared by a Fund in October, November or December of that year
with a record date in such a month and paid by that Fund during January of the
following year. Such distributions will be taxable to shareholders in the
calendar year in which the distributions are declared, rather than the calendar
year in which the distributions are received.
ORIGINAL ISSUE DISCOUNT
Certain debt securities acquired by the Funds may be treated as debt securities
that were originally issued at a discount. Original issue discount can generally
be defined as the difference between the price at which a security was issued
and its stated redemption price at maturity. Although no cash income is actually
received by a Fund, original issue discount that accrues on a debt security in a
given year generally is treated for federal income tax purposes as interest and,
therefore, such income would be subject to the distribution requirements
applicable to regulated investment companies.
Some debt securities may be purchased by the Funds at a discount that exceeds
the original issue discount on such debt securities, if any. This additional
discount represents market discount for federal income tax purposes. The gain
realized on the disposition of any taxable debt security having market discount
generally will be treated as ordinary income to the extent it does not exceed
the accrued market discount on such debt security. Generally, market discount
accrues on a daily basis for each day the debt security is held by a Fund at a
constant rate over the time remaining to the debt security's maturity or, at the
election of a Fund, at a constant yield to maturity which takes into account the
semi-annual compounding of interest.
OPTIONS, FUTURES AND FOREIGN CURRENCY FORWARD CONTRACTS; STRADDLES
A Fund's transactions in foreign currencies, forward contracts, options and
futures contracts (including options and futures contracts on foreign
currencies) will be subject to special provisions of the Code that, among other
things, may affect the character of gains and losses realized by the Fund (i.e.,
may affect whether gains or losses are ordinary or capital), accelerate
recognition of income to the Fund, defer Fund losses, and affect the
determination of whether capital gains and losses are characterized as long-term
or short-term capital gains or losses. These rules could therefore, in turn,
affect the character, amount, and timing of distributions to shareholders. These
provisions also may require the Fund to mark-to-market certain types of the
positions in its portfolio (i.e., treat them as if they were closed out), which
may cause the Fund to recognize income without receiving cash with which to make
distributions in amounts necessary to satisfy its distribution requirements for
relief from income and excise taxes. Each Fund will monitor its transactions and
may make such tax elections as Fund management deems appropriate with respect to
foreign currency, options, futures contracts, forward contracts, or hedged
investments. The Funds' status as regulated investment companies may limit their
transactions involving foreign currency, futures, options, and forward
contracts.
Certain transactions undertaken by a Fund may result in "straddles" for federal
income tax purposes. The straddle rules may affect the character of gains (or
losses) realized by a Fund, and losses realized by the Fund on positions that
are part of a straddle may be deferred under the straddle rules, rather than
being taken into account in calculating the taxable income for the taxable year
in which the losses are realized. In addition, certain carrying charges
(including interest expense) associated with positions in a straddle may be
required to be capitalized rather than deducted currently. Certain elections
that a Fund may make with respect to its straddle positions may also affect the
amount, character and timing of the recognition of gains or losses from the
affected positions.
CURRENCY FLUCTUATIONS - "SECTION 988" GAINS OR LOSSES
Each Fund will maintain accounts and calculate income by reference to the U.S.
dollar for U.S. federal income tax purposes. Some of a Fund's investments will
be maintained and income therefrom calculated by reference to certain foreign
currencies, and such calculations will not necessarily correspond to the Fund's
distributable income and capital gains for U.S. federal income tax purposes as a
result of fluctuations in currency exchange rates. Furthermore, exchange control
regulations may restrict the ability of a Fund to repatriate investment income
or the proceeds of sales of securities. These restrictions and limitations may
limit a Fund's ability to make sufficient distributions to satisfy the 90%
distribution requirement for qualification as a regulated investment company.
Even if a fund so qualified, these restrictions could inhibit its ability to
distribute all of its income in order to be fully relieved of tax liability.
Gains or losses attributable to fluctuations in exchange rates which occur
between the time a Fund accrues income or other receivables (including
dividends) or accrues expenses or other liabilities denominated in a foreign
currency and the time a Fund actually collects such receivables or pays such
liabilities generally are treated as ordinary income or ordinary loss.
Similarly, on disposition of some investments, including debt securities and
certain forward contracts denominated in a foreign currency, gains or losses
attributable to fluctuations in the value of the foreign currency between the
date of the acquisition of the security or other instrument and the date of
disposition also are treated as ordinary gain or loss. These gains and losses,
referred to under the Code as "section 988" gains or losses, increase or
decrease the amount of the Funds' investment company taxable income available to
be distributed to its shareholders as ordinary income. If section 988 losses
exceed other investment company taxable income during a taxable year, a Fund
would not be able to make any ordinary dividend distributions, or distributions
made before the losses were realized would be recharacterized as a return of
capital to shareholders, or, in some cases, as capital gain, rather than as an
ordinary dividend.
PASSIVE FOREIGN INVESTMENT COMPANIES
Each Fund may invest in shares of foreign corporations which may be classified
under the Code as passive foreign investment companies ("PFICs"). In general, a
foreign corporation is classified as a PFIC if at least one-half of its assets
constitute investment-type assets, or 75% or more of its gross income is
investment-type income. If the Fund receives a so-called "excess distribution"
with respect to PFIC stock, the Fund itself may be subject to a tax on a portion
of the excess distribution, whether or not the corresponding income is
distributed by the Fund to shareholders. In general, under the PFIC rules, an
excess distribution is treated as having been realized ratably over the period
during which the Fund held the PFIC shares. The Fund itself will be subject to
tax on the portion, if any, of an excess distribution that is so allocated to
prior Fund taxable years and an interest factor will be added to the tax, as if
the tax had been payable in such prior taxable years. Certain distributions from
a PFIC as well as gain from the sale of PFIC shares are treated as excess
distributions. Excess distributions are characterized as ordinary income even
though, absent application of the PFIC rules, certain distributions might have
been classified as capital gain.
The Fund may be eligible to elect alternative tax treatment with respect to PFIC
shares. Under an election that currently is available in some circumstances, the
Fund generally would be required to include in its gross income its share of the
earnings of a PFIC on a current basis, regardless of whether distributions were
received from the PFIC in a given year. If this election were made, the special
rules, discussed above, relating to the taxation of excess distributions, would
not apply. In addition, another election would involve marking to market the
Fund's PFIC shares at the end of each taxable year, with the result that
unrealized gains would be treated as though they were realized and reported as
ordinary income. Any mark-to-market losses and any loss from an actual
disposition of Fund share would be deductible as ordinary losses to the extent
of any net mark-to-market gains included in income in prior years.
Because the application of the PFIC rules may affect, among other things, the
character of gains, the amount of gain or loss and the timing of the recognition
of income with respect to PFIC shares, as well as subject the Fund itself to tax
on certain income from PFIC shares, the amount that must be distributed to
shareholders, and which will be taxed to shareholders as ordinary income or
long-term capital gains, may be increased or decreased substantially as compared
to a fund that did not invest in PFIC shares.
DISTRIBUTIONS
Distributions of investment company taxable income are taxable to a U.S.
shareholder as ordinary income, whether paid in cash or shares. Dividends paid
by a Fund to a corporate shareholder, to the extent such dividends are
attributable to dividends received from U.S. corporations by a Fund, may qualify
for the dividends received deduction. However, the revised alternative minimum
tax applicable to corporations may reduce the value of the dividends received
deduction. Distributions of net capital gains (the excess of net long-term
capital gains over net short-term capital losses), if any, designated by a Fund
as capital gain dividends, are taxable as long-term capital gains, whether paid
in cash or in shares, regardless of how long the shareholder has held a Fund's
shares, and they are not eligible for the dividends received deduction.
Shareholders will be notified annually as to the U.S. federal tax status of
distributions, and shareholders receiving distributions in the form of newly
issued shares will receive a report as to the net asset value of the shares
received.
If the net asset value of shares is reduced below a shareholder's cost as a
result of a distribution by a Fund, such distribution generally will be taxable
even though it represents a return of invested capital. Investors should be
careful to consider the tax implications of buying shares of a Fund just prior
to a distribution. The price of shares purchased at this time may reflect the
amount of the forthcoming distribution. Those purchasing just prior to a
distribution will receive a distribution which generally will be taxable to
them.
DISPOSITION OF SHARES
Upon a redemption, sale or exchange of shares of a Fund, a shareholder will
realize a taxable gain or loss depending upon the amount realized and the
shareholder's basis in the shares. A gain or loss will be treated as capital
gain or loss if the shares are capital assets in the shareholder's hands and
generally will be long-term or short-term, depending upon the shareholder's
holding period for the shares. Any loss realized on a redemption, sale or
exchange will be disallowed to the extent the shares disposed of are replaced
(including through reinvestment of dividends) within a period of 61 days
beginning 30 days before and ending 30 days after the shares are disposed of. In
such a case, the basis of the shares acquired will be adjusted to reflect the
disallowed loss. Any loss realized by a shareholder on the disposition of a
Fund's shares held by the shareholder for six months or less will be treated for
tax purposes as a long-term capital loss to the extent of any distributions of
capital gain dividends received or treated as having been received by the
shareholder with respect to such shares.
BACKUP WITHHOLDING
The Funds will be required to report to the Internal Revenue Service (the "IRS")
all distributions and gross proceeds from the redemption of the Funds' shares,
except in the case of certain exempt shareholders. All distributions and
proceeds from the redemption of a Fund's shares will be subject to withholding
of federal income tax at a rate of 31% ("backup withholding") in the case of
non-exempt shareholders if (1) the shareholder fails to furnish the Funds with
and to certify the shareholder's correct taxpayer identification number or
social security number, (2) the IRS notifies the shareholder or the Funds that
the shareholder has failed to report properly certain interest and dividend
income to the IRS and to respond to notices to that effect, or (3) when required
to do so, the shareholder fails to certify that he or she is not subject to
backup withholding. If the withholding provisions are applicable, any such
distributions or proceeds, whether reinvested in additional shares or taken in
cash, will be reduced by the amounts required to be withheld.
OTHER TAXATION
Distributions may also be subject to additional state, local and foreign taxes
depending on each shareholder's particular situation. Non-U.S. shareholders may
be subject to U.S. tax rules that differ significantly from those summarized
above. This discussion does not address all of the tax consequences applicable
to the Funds or shareholders, and shareholders are advised to consult their own
tax advisers with respect to the particular tax consequences to them of an
investment in a Fund.
NET ASSET VALUE
A Fund's net asset value per share will be calculated separately from the per
share net asset value of the other fund of the Trust. "Assets belonging to" a
fund consist of the consideration received upon the issuance of shares of the
particular fund together with all net investment income, earnings, profits,
realized gains/losses and proceeds derived from the investment thereof,
including any proceeds from the sale of such investments, any funds or payments
derived from any reinvestment of such proceeds, and a portion of any general
assets of the Trust not belonging to a particular series. Each fund will be
charged with the direct liabilities of that fund and with a share of the general
liabilities of the Trust's funds. Subject to the provisions of the Charter,
determinations by the Trustees as to the direct and allocable expenses, and the
allocable portion of any general assets, with respect to a particular fund are
conclusive.
CAPITAL STRUCTURE
DESCRIPTION OF SHARES
The Trust is an open-end management investment company organized as a Delaware
Business Trust on October 1, 1997. The Trust's Trust Instrument authorizes the
Board of Trustees to issue an unlimited number of shares of beneficial interest.
Each share of the Funds has equal voting, dividend, distribution and liquidation
rights.
Shares of the Trust have no preemptive rights and only such conversion or
exchange rights as the Board may grant in its discretion. When issued for
payment as described in the Prospectus, the Trust's shares will be fully paid
and non-assessable.
Shareholders are entitled to one vote for each full share held, and fractional
votes for fractional shares held, and will vote in the aggregate and not by
class or series except as otherwise required by the 1940 Act or applicable
Delaware law.
Rule 18f-2 under the 1940 Act provides that any matter required to be submitted
to the holders of the outstanding voting securities of an investment company
such as the Trust shall not be deemed to have been effectively acted upon unless
approved by a majority of the outstanding shares of each fund affected by the
matter. A fund is affected by a matter unless it is clear that the interests of
each Fund in the matter are substantially identical or that the matter does not
affect any interest of the Fund. Under Rule 18f-2 the approval of an investment
advisory agreement or 12b-1 distribution plan or any change in a fundamental
investment policy would be effectively acted upon with respect to a fund only if
approved by a majority of the outstanding shares of such Fund. However, the rule
also provides that the ratification of independent public accountants, the
approval of principal underwriting contracts and the election of directors may
be effectively acted upon by shareholders of the Trust voting without regard to
particular funds.
Notwithstanding any provision of Delaware law requiring for any purpose the
concurrence of a proportion greater than a majority of all votes entitled to be
cast at a meeting at which a quorum is present, the affirmative vote of the
holders of a majority of the total number of shares of the Trust outstanding (or
of a class or series of the Trust, as applicable) will be effective, except to
the extent otherwise required by the 1940 Act and rules thereunder. In addition,
the Trust Instrument provides that, to the extent consistent with Delaware law
and other applicable law, the By-Laws may provide for authorization to be given
by the affirmative vote of the holders of less than a majority of the total
number of shares of the Trust outstanding (or of a class or series).
HOW TO REDEEM SHARES
The right of redemption may be suspended, or the date of payment postponed
beyond the normal seven-day period by the Funds, under the following conditions
authorized by the 1940 Act: (1) for any period (a) during which the New York
Stock Exchange is closed, other than customary weekend or holiday closing, or
(b) during which trading on the New York Stock Exchange is restricted; (2) for
any period during which an emergency exists as a result of which (a) disposal by
the Fund of securities owned by it is not reasonably practical, or (b) it is not
reasonably practical for a Fund to determine the fair value of its net assets;
and (3) for such other periods as the Securities and Exchange Commission may by
order permit for the protection of the Fund's shareholders.
The value of shares of a Fund on redemption may be more or less than the
shareholder's cost, depending upon the market value of that Fund's assets at the
time. Shareholders should note that if a loss has been realized on the sale of
shares of a Fund, the loss may be disallowed for tax purposes if shares of the
same Fund are purchased within (before or after) 30 days of the sale.
It is possible that conditions may exist in the future which would, in the
opinion of the Board of Trustees, make it undesirable for the Funds to pay for
redemptions in cash. In such cases the Board may authorize payment to be made in
portfolio securities of the Funds. However, the Funds are obligated under the
1940 Act to redeem for cash all shares presented for redemption by any one
shareholder up to $250,000 (or 1% of a Fund's net assets if that is less) in any
90-day period. Securities delivered in payment of redemptions are valued at the
same value assigned to them in computing the net asset value per share.
Shareholders receiving such securities generally will incur brokerage costs on
their sales.
EXPERTS
The Financial Statements of the Funds as of ________________, included in this
Statement of Additional Information have been so included in reliance on the
report of ____________________, independent certified public accountants, given
on the authority of said firm as experts in accounting and auditing.
<PAGE>
APPENDIX
RATINGS OF INVESTMENT SECURITIES
A rating of a rating service represents the service's opinion as to the credit
quality of the security being rated. However, the ratings are general and are
not absolute standards of quality or guarantees as to the creditworthiness of an
issuer. Consequently, the Fund's investment adviser believes that the quality of
debt securities in which the Fund invests should be continuously reviewed. A
rating is not a recommendation to purchase, sell or hold a security, because it
does not take into account market value or suitability for a particular
investor. When a security has received a rating from more than one service, each
rating should be evaluated independently. Ratings are based on current
information furnished by the issuer or obtained by the ratings services from
other sources which they consider reliable. Ratings may be changed, suspended or
withdrawn as a result of changes in or unavailability of such information, or
for other reasons.
The following is a description of the characteristics of ratings used by Moody's
Investors Service, Inc. and Standard & Poor's Corporation.
MOODY'S INVESTORS SERVICE, INC. RATINGS.
Aaa--Bonds rated Aaa are judged to be the best quality. They carry the smallest
degree of investment risk and are generally referred to as "gilt-edge". Interest
payments are protected by a large or by an exceptionally stable margin and
principal is secure. Although the various protective elements are likely to
change, such changes as can be visualized are most unlikely to impair the
fundamentally strong position of such bonds.
Aa--Bonds rated Aa are judged to be high quality by all standards. Together with
the Aaa group they comprise what are generally known as high grade bonds. They
are rated lower than the best bonds because margins of protection may not be as
large as in Aaa bonds or fluctuation of protective elements may be of greater
amplitude or there may be other elements present which make the long term risk
appear somewhat larger than in Aaa bonds.
A--Bonds rated A possess many favorable investment attributes and are to be
considered as upper medium grade obligations. Factors giving security to
principal and interest are considered adequate but elements may be present which
suggest a susceptibility to impairment sometime in the future.
Baa--Bonds rated Baa are considered as medium grade obligations, i.e., they are
neither highly protected nor poorly secured. Interest payments and principal
security appear adequate for the present but certain protective elements may be
lacking or may be characteristically unreliable over any great length of time.
Such bonds lack outstanding investment characteristics and in fact have
speculative characteristics as well.
Ba--Bonds rated Ba are judged to have speculative elements; their future cannot
be considered as well assured. Often the protection of interest and principal
payments may be very moderate and thereby not well safeguarded during both good
and bad times over the future. Uncertainty of position characterizes bonds in
this class.
B--Bonds rated B generally lack characteristics of the desirable investment.
Assurance of interest and principal payments or of maintenance of other terms of
the contract over any long period of time may be small.
Caa--Bonds rated Caa are of poor standing. Such bonds may be in default or there
may be present elements of danger with respect to principal or interest.
Ca--Bonds rated Ca represent obligations which are speculative in a high degree.
Such bonds are often in default or have other marked shortcomings.
STANDARD & POOR'S CORPORATION RATING.
AAA--Bonds rated AAA have the highest rating. Capacity to pay principal and
interest is extremely strong.
AA--Bonds rated AA have a very strong capacity to pay principal and interest and
differ from AAA bonds only in small degree.
A--Bonds rated A have a strong capacity to pay principal and interest, although
they are somewhat more susceptible to the adverse effects of changes in
circumstances and economic conditions than bonds in higher rated categories.
BBB--Bonds rated BBB are regarded as having an adequate capacity to pay
principal and interest. Whereas they normally exhibit protection parameters,
adverse economic conditions or changing circumstances are more likely to lead to
a weakened capacity to pay principal and interest for bonds in this capacity
than for bonds in higher rated categories.
BB--B--CCC--CC--Bonds rated BB, B, CCC and CC are regarded, on balance, as
predominantly speculative with respect to the issuer's capacity to pay interest
and repay principal in accordance with the terms of the obligation. BB indicates
the lowest degree of speculation among such bonds and CC the highest degree of
speculation. Although such bonds will likely have some quality and protective
characteristics, these are outweighed by large uncertainties or major risk
exposures to adverse conditions.
<PAGE>
PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits
(a) Financial Statements
An audited Statement of Assets and Liabilities will be
filed by Pre-Effective Amendment.
(b) Exhibits
(1)(a) Trust Instrument
(b) Certificate of Trust
(2) By-Laws
(3) Not Applicable
(4) Specimen Share Certificate1
(5)(a) Investment Advisory Agreement between Registrant
and Marsico Capital Management, LLC with respect to
The Marsico Focus Fund1
(b) Investment Advisory Agreement between Registrant
and Marsico Capital Management, LLC with respect to
The Marsico Growth & Income Fund1
(6) Distribution Agreement1
(7) Not Applicable
(8) Custodian Agreement1
(9)(a) Shareholder Services Agreement1
(b) Transfer Agency Agreement1
(10) Opinion and consent of Counsel1
(11) Consent of Independent Auditors1
(12) Not Applicable
(13) Initial Capital Agreement1
1 To be filed by amendment.
<PAGE>
(14) Not Applicable
(15) Distribution Plan1
(16) Computation of Performance1
(27) Financial Data Schedules1
Item 25. Persons Controlled by or Under Common Control with Registrant
Not applicable.
Item 26. Number of Record Holders
As of the date of this Registration Statement, there were no
shareholders of record of the Registrant's shares.
Item 27. Indemnification
Reference is made to Article IX, Section 2, of the
Registrant's Trust Instrument.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to trustees,
officers and controlling persons of the Registrant by the
Registrant pursuant to the Trust Instrument or otherwise, the
Registrant is aware that in the opinion of the Securities and
Exchange Commission, such indemnification is against public
policy as expressed in the Act and, therefore, is
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by trustees, officers
or controlling persons of the Registrant in connection with
the successful defense of any act, suit or proceeding) is
asserted by such trustees, officers or controlling persons in
connection with the shares being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issues.
Item 28. Business and Other Connections of Investment Adviser
Marsico Capital Management, LLC serves as the
investment adviser for the Registrant. The business and other
connections of Marsico Capital Management, LLC are set forth
in the Uniform Application for Investment Adviser Registration
("Form ADV") of Marsico Capital Management, LLC as currently
filed with the SEC which is incorporated by reference herein.
<PAGE>
Item 29. Principal Underwriter
Not Applicable.
Item 30. Location of Accounts and Records
The accounts, books, and other documents required to be
maintained by Registrant pursuant to Section 31(a) of the
Investment Company Act of 1940 and rules promulgated
thereunder are in the possession of Marsico Capital
Management, LLC, 1200 17th Street, Suite 1300, Denver,
Colorado 80202.
Item 31. Management Services
Not Applicable.
Item 32. Undertakings.
(a) Not Applicable.
(b) Registrant undertakes to file a Post-Effective
Amendment, using financial statements which need not
be certified, within four to six months from the
effective date of this Registration Statement under
the Securities Act of 1933 or the date on which
Registrant becomes operational.
(c) Registrant undertakes to furnish each person to whom a
prospectus is delivered a copy of the Registrant's latest
annual report to shareholders, upon request and without
charge, in the event that the information called for by
Item 5A of Form N-1A has been presented in the
Registrant's latest annual report to shareholders.
(d) Registrant undertakes to call a meeting of Shareholders
for the purpose of voting upon the question of removal
of a Trustee or Trustees when requested to do so by
the holders of at least 10% of the Registrant's
outstanding shares of beneficial interest and in
connection with such meeting to comply with the
shareholders communications provisions of Section 16(c)
of the Investment Company Act of 1940.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver in the State of Colorado on the 1st day of
October, 1997.
THE MARSICO INVESTMENT FUND
By: /s/Thomas F. Marsico
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
<TABLE>
<S> <C> <C>
Signature Title Date
/s/Thomas F. Marsico Trustee and President October 1, 1997
Thomas F. Marsico (Principal Executive
Officer)
/s/Barbara M. Japha Trustee October 1, 1997
Barbara M. Japha
/s/Christopher J. Marsico Trustee and Treasurer October 1, 1997
Christopher J. Marsico (Principal Financial
and Accounting Officer)
</TABLE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
FILED
WITH
REGISTRATION STATEMENT
OF
THE MARSICO INVESTMENT FUND
<PAGE>
INDEX TO EXHIBITS
Exhibit No.
Under Part C
of Form N-1A Name of Exhibit
1(a) Trust Instrument
1(b) Certificate of Trust
2 Bylaws
THE MARSICO INVESTMENT FUND
(A Delaware Business Trust)
TRUST INSTRUMENT
Dated October 1, 1997
<PAGE>
TABLE OF CONTENTS Page
ARTICLE I DEFINITIONS.......................................... 1
ARTICLE II THE TRUSTEES......................................... 2
Section 1. Management of the Trust................................ 2
Section 2. Initial Trustees and Number of Trustees................ 2
Section 3. Term of Office of Trustees............................. 2
Section 4. Vacancies; Appointment of Trustees..................... 2
Section 5. Temporary Vacancy or Absence........................... 3
Section 6. Chairman............................................... 3
Section 7. Action by the Trustees................................. 3
Section 8. Ownership of Trust Property............................ 3
Section 9. Effect of Trustees Not Serving......................... 4
Section 10. Trustees, Etc. as Holders.............................. 4
ARTICLE III POWERS OF THE TRUSTEES............................... 4
Section 1. Powers................................................. 4
Section 2. Certain Transactions................................... 7
ARTICLE IV SERIES; CLASSES; SHARES.............................. 7
Section 1. Establishment of Series................................ 7
Section 2. Shares................................................. 7
Section 3. Investment in the Trust................................ 8
Section 4. Assets and Liabilities of Series....................... 8
Section 5. Ownership and Transfer of Shares....................... 9
Section 6. Status of Interests: Limitation of Holder
Liability............................................ 9
ARTICLE V DISTRIBUTIONS AND REDEMPTIONS........................ 9
Section 1. Distributions.......................................... 9
Section 2. Redemptions............................................ 10
Section 3. Determination of Net Asset Value........................10
Section 4. Suspension of Right of Redemption.......................10
Section 5. Redemptions Necessary for Qualification
as Regulated Investment Company.................10
ARTICLE VI SHAREHOLDERS' VOTING POWERS AND MEETINGS............. 11
Section 1. Voting Powers.......................................... 11
Section 2. Meetings of Shareholders............................... 11
Section 3. Quorum; Required Vote.................................. 11
<PAGE>
ARTICLE VII CONTRACTS WITH SERVICE PROVIDERS..................... 12
Section 1. Investment Adviser..................................... 12
Section 2. Principal Underwriter.................................. 12
Section 3. Transfer Agency, Shareholder Services
and Administration Agreements........................ 12
Section 4. Custodian.............................................. 13
Section 5. Parties to Contracts with Service
Providers............................................ 13
ARTICLE VIII EXPENSES OF THE TRUST AND SERIES..................... 13
ARTICLE IX LIMITATION OF LIABILITY AND INDEMNIFICATION.......... 14
Section 1. Limitation of Liability................................ 14
Section 2. Indemnification........................................ 14
Section 3. Indemnification of Shareholders........................ 15
ARTICLE X MISCELLANEOUS........................................ 16
Section 1. Trust Not a Partnership................................ 16
Section 2. Trustee Action; Expert Advice; No Bond
or Surety........................................ 16
Section 3. Record Dates........................................... 16
Section 4. Termination of the Trust............................... 16
Section 5. Reorganization; Merger; Consolidation.................. 17
Section 6. Trust Instrument....................................... 17
Section 7. Applicable Law......................................... 17
Section 8. Amendments............................................. 18
Section 9. Fiscal Year............................................ 18
Section 10. Severability.......................................... 18
Section 11. Use of the Name "Marsico"............................. 18
<PAGE>
THE MARSICO INVESTMENT TRUST
TRUST INSTRUMENT
This TRUST INSTRUMENT is made on October 1, 1997, by the Trustees, to
establish a business trust under the law of Delaware for the investment and
reinvestment of funds contributed to the Trust by investors. The Trustees
declare that all money and property contributed to the Trust shall be held and
managed in trust pursuant to this Trust Instrument. The name of the Trust
created by this Trust Instrument is The Marsico Investment Fund.
ARTICLE I
DEFINITIONS
Unless otherwise provided or required by the context:
(a) "Bylaws" means the Bylaws of the Trust adopted by the Trustees,
which Bylaws are incorporated by reference herein in their entirety, as amended
from time to time;
(b) "Class" means the class of Shares of a Series established pursuant
to Article IV;
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations thereunder, as adopted or amended
from time to time;
(d) "Commission," "Interested Person," and "Principal Underwriter"
have the meanings provided in the 1940 Act;
(e) "Covered Person" means a person so defined in Article IX, Section
2;
(f) "Delaware Act" means Chapter 38 of Title 12 of the Delaware Code
entitled "Treatment of Delaware Business Trusts," as amended from time to time;
(g) "Majority Shareholder Vote" means "the vote of a majority of the
outstanding voting securities" as defined in the 1940 Act;
(h) "Outstanding Shares" means Shares shown in the books of the Trust
or its transfer agent as then outstanding;
(i) "Series" means a series of Shares established pursuant to Article
IV;
(j) "Shareholder" means a record owner of Outstanding Shares;
(k) "Shares" mean the equal proportionate transferable units of
interest into which the beneficial interest of each Series or Class is divided
from time to time (including whole Shares and fractions of Shares)
(l) "Trust" means The Marsico Investment Fund established hereby, and
reference to the Trust, when applicable to one or more Series, refers to that
Series;
(m) "Trustees" means the persons who have signed this Trust
Instrument, so long as they shall continue in office in accordance with the
terms hereof, and all other persons who may from time to time be duly qualified
and serving as Trustees in accordance with Article II, in all cases in their
capacities as Trustees hereunder;
(n) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the Trust or the
Trustees on behalf of the Trust or any Series;
(o) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time.
ARTICLE II
THE TRUSTEES
Section 1. Management of the Trust. The business and affairs of the
Trust shall be managed by or under the direction of the Trustees, and they shall
have all powers necessary or desirable to carry out that responsibility. The
Trustees may execute all instruments and take all action they deem necessary or
desirable to promote the interests of the Trust. Any determination made by the
Trustees in good faith as to what is in the interests of the Trust shall be
conclusive.
Section 2. Initial Trustees and Number of Trustees. The initial
Trustees shall be the persons signing this Trust Instrument. The exact number of
Trustees (other than the initial Trustees) shall be fixed from time to time by a
majority of the Trustees, provided, that there shall be at least two (2)
Trustees. Other than the initial Trustees and Trustees appointed to fill
vacancies pursuant to Section 4 of this Article, the Shareholders shall elect
the Trustees on such dates as the Trustees may fix from time to time.
Section 3. Term of Office of Trustees. Each Trustee shall hold office
for life or until his successor is elected and qualified or the Trust
terminates; except that (a) any Trustee may resign by delivering to the other
Trustees or to any Trust officer a written resignation effective upon such
delivery or a later date specified therein; (b) any Trustee who requests to be
retired, or who has become physically or mentally incapacitated or is otherwise
unable to serve, may be retired by a written instrument signed by a majority of
the other Trustees, specifying the effective date of retirement; (c) any Trustee
shall be retired or removed with or without cause at any time upon the unanimous
written request of the remaining Trustees; and (d) any Trustee may be removed at
any meeting of the Shareholders by a vote of at least two-thirds of the
Outstanding Shares.
Section 4. Vacancies; Appointment of Trustees. Whenever a vacancy
shall exist, regardless of the reason for such vacancy, the remaining Trustees
shall appoint any person as they determine in their sole discretion to fill that
vacancy, consistent with the limitations under the 1940 Act. Such appointment
shall be made by a written instrument signed by a majority of the Trustees or by
a resolution of the Trustees, duly adopted and recorded in the records of the
Trust, specifying the effective date of the appointment. The Trustees may
appoint a new Trustee as provided above in anticipation of a vacancy expected to
occur because of the retirement, resignation or removal of a Trustee, or an
increase in number of Trustees, provided that such appointment shall become
effective only at or after the expected vacancy occurs. As soon as any such
Trustee has accepted his or her appointment in writing, the Trust estate shall
vest in the new Trustee, together with the continuing Trustees, without any
further act or conveyance, and he or she shall be deemed a Trustee hereunder.
Section 5. Temporary Vacancy or Absence. Whenever a vacancy in the
Trustees shall occur, until such vacancy is filled, or while any Trustee is
absent from his domicile (unless that Trustee has made arrangements to be
informed about, and to participate in, the affairs of the Trust during such
absence), or is physically or mentally incapacitated, the remaining Trustees
shall have all the powers hereunder and their certificate as to such vacancy,
absence or incapacity shall be conclusive. Any Trustee may, by power of
attorney, delegate his powers as Trustee for a period not to exceed six (6)
months, unless otherwise extended for one or more additional consecutive six (6)
month periods, to any other Trustee or Trustees.
Section 6. Chairman. The Trustees shall appoint one of their number to
be Chairman of the Trustees. The Chairman shall preside at all meetings of the
Trustees, shall be responsible for the execution of policies established by the
Trustees and the administration of the Trust.
Section 7. Action by the Trustees. The Trustees shall act by majority
vote at a meeting duly called (including at a telephonic meeting at which all
participants can hear one another, unless the 1940 Act requires that a
particular action be taken only at a meeting of the Trustees in person) at which
a quorum is present or by written consent of a majority of Trustees (or such
greater number as may be required by applicable law) without a meeting.
One-third of the Trustees shall constitute a quorum at any meeting. Meetings of
the Trustees may be called orally or in writing by the Chairman of the Trustees
or by any two other Trustees. Notice of the time, date and place of all Trustees
meetings shall be given to each Trustee by telephone, facsimile or other
electronic mechanism sent to his home or business address at least twenty-four
hours in advance of the meeting or by written notice mailed to his home or
business address at least seventy-two hours in advance of the meeting. Notice
need not be given to any Trustee who attends the meeting without objecting to
the lack of notice or who signs a waiver of notice either before, at or after
the meeting. Subject to the requirements of the 1940 Act, the Trustees by
majority vote may delegate to any Trustee or Trustees authority to approve
particular matters or take particular actions on behalf of the Trust. Any
written consent or waiver may be provided and delivered to the Trust by
facsimile or other similar electronic mechanism.
Section 8. Ownership of Trust Property. The Trust Property of the
Trust and of each Series shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee hereunder by the Trustees
or any successor Trustees. All of the Trust Property and legal title thereto
shall at all times be considered as vested in the Trust, provided that the
Trustees may cause legal title to any Trust Property to be held by or in the
name of the Trustees acting on behalf of the Trust, or in the name of any person
as nominee. No Shareholder shall be deemed to have a severable ownership in any
individual asset of the Trust or of any Series or any right of partition or
possession thereof, but each Shareholder shall have, as provided in Article IV,
a proportionate undivided beneficial interest in the Trust or Series represented
by Shares. The Trust or the Trustees on behalf of the Trust shall be deemed to
hold legal and beneficial ownership of any income earned on securities held by
the Trust issued by any business entity formed, organized or existing under the
laws of any jurisdiction other than a state, commonwealth, possession or colony
of the United States or the laws of the United States.
Section 9. Effect of Trustees Not Serving. The death, resignation,
retirement, removal, incapacity or inability or refusal to serve of the
Trustees, or any one of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this Trust Instrument.
Section 10. Trustees, Etc. as Shareholders. Subject to any
restrictions in the Bylaws, any Trustee, officer, agent or independent
contractor of the Trust may acquire, own and dispose of Shares to the same
extent as any other Shareholder, and the Trustees may issue and sell Shares to
and buy Shares from any such person or any firm or company in which such person
is interested, subject only to any general limitations herein.
ARTICLE III
POWERS OF THE TRUSTEES
Section 1. Powers. The Trustees in all instances shall act as
principals, free of the control of the Shareholders. The Trustees shall have
full power and authority to take or refrain from taking any action and to
execute any contracts and instruments that they may consider necessary or
desirable in the management of the Trust. The Trustees shall not in any way be
bound or limited by current or future laws or customs applicable to trust
investments, but shall have full power and authority to make any investments
which they, in their sole discretion, deem proper to accomplish the purposes of
the Trust. The Trustees may exercise all of their powers without recourse to any
court or other authority. Subject to any applicable limitation herein or in the
Bylaws or resolutions of the Trust, the Trustees shall have power and authority,
without limitation:
(a) To invest and reinvest cash and other property, and to hold cash
or other property uninvested, without in any event being bound or limited by any
current or future law or custom concerning investments by trustees, and to sell,
exchange, lend, pledge, mortgage, hypothecate, write options on and lease any or
all of the Trust Property; to invest in obligations, securities and assets of
any kind, and without regard to whether they may mature before or after the
possible termination of the Trust; and without limitation to invest all or any
part of its cash and other assets and property in securities issued by any
investment company or series thereof;
(b) To operate as and carry on the business of an investment company,
and exercise all the powers necessary and proper to conduct such a business;
(c) To adopt Bylaws not inconsistent with this Trust Instrument
providing for the conduct of the business of the Trust and to amend and repeal
them to the extent such right is not reserved to the Shareholders;
(d) To elect and remove such officers and appoint and terminate such
agents, independent contractors and delegates as they deem appropriate;
(e) To employ an investment adviser (subject to such general or
specific instruments as the Trustees may from time to time adopt) to effect
purchases, sales, loans or exchanges of Trust Property on behalf of the Trustees
or may authorize any officer, employee or Trustee to effect such purchases,
sales, loans or exchanges pursuant to recommendations of any such investment
adviser;
(f) To employ as custodian of any Trust Property, subject to any
provisions herein or in the Bylaws, one or more banks, trust companies or
companies that are members of a national securities exchange, or other entities
permitted by the Commission to serve as such;
(g) To retain one or more transfer agents, dividend disbursing agents,
placement agents, administrators, or Shareholder servicing agents, or both;
(h) To provide for the distribution of Shares, either through a
Principal Underwriter or distributor as provided herein, or by the Trust itself,
or both, or pursuant to a distribution plan of any kind;
(i) To set record dates in the manner provided for herein or in the
Bylaws;
(j) To delegate such authority as they consider desirable to any
officers of the Trust and to any agent, subagent, independent contractor,
delegate, manager, investment adviser, custodian or underwriter;
(k) To sell or exchange any or all of the Trust Property;
(l) To vote or give assent, or exercise any rights of ownership, with
respect to securities or other property; and to execute and deliver powers of
attorney delegating such power to other persons;
(m) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities;
(n) To hold any security or other Trust Property (i) in a form not
indicating any trust, whether in bearer, book entry, unregistered or other
negotiable form, or (ii) either in the Trust's or Trustees' own name or in the
name of a custodian or a nominee or nominees, subject to safeguards according to
the usual practice of business trusts or investment companies;
(o) To establish separate and distinct Series with separately defined
investment objectives, policies or restrictions and distinct investment
purposes, and with separate Shares representing beneficial interests in such
Series, and to establish separate Classes, all in accordance with the provisions
of Article IV;
(p) To the full extent permitted by Section 3806 of the Delaware Act,
to allocate assets, liabilities and expenses of the Trust to a particular Series
and liabilities and expenses to a particular Class or to apportion the same
between or among two or more Series or Classes, provided that any liabilities or
expenses incurred by a particular Series or Class shall be payable solely out of
the assets belonging to that Series or Class as provided for in Article IV,
Section 4;
(q) To consent to or participate in any plan for the liquidation,
reorganization, consolidation or merger of any corporation or concern whose
securities are held by the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or concern; and to pay calls or
subscriptions with respect to any security held by the Trust;
(r) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy including, but not limited to,
claims for taxes;
(s) To make distributions of income and of capital gains to
Shareholders in the manner provided in this Trust Instrument or in the Bylaws;
(t) To borrow money and in connection therewith to issue notes or
other evidences of indebtedness and to pledge or grant security interests in
Trust Property as security therefor;
(u) To establish committees for such purposes, with such membership,
and with such responsibilities, as the Trustees may consider proper;
(v) To issue, sell, repurchase, redeem, cancel, retire, acquire, hold,
resell, reissue, dispose of and otherwise deal in Shares; to establish terms and
conditions regarding the issuance, sale, repurchase, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance, disposition of or dealing
in Shares; and, subject to Articles IV and V, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the Trust or of the particular Series with respect to which such
Shares are issued;
(w) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust;
(x) To sell all or a portion of the Shares to another investment
company that is registered under the 1940 Act, in the Trustees' sole discretion,
without the vote or approval of any Shareholder or Shareholders, notwithstanding
any other provision of this Trust Instrument or the Bylaws to the contrary; and
(y) To carry on any other business in connection with or incidental to
any of the foregoing powers, to do everything necessary or desirable to
accomplish any purpose or to further any of the foregoing powers, and to take
every other action incidental to the foregoing business or purposes, objects or
powers.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Trustees. Any action by one or more of the Trustees in their capacity as
such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity. No one dealing
with the Trustees shall be under any obligation to make any inquiry concerning
the authority of the Trustees, or to see to the application of any payments made
or property transferred to the Trustees or upon their order. In construing this
Trust Instrument, the presumption shall be in favor of a grant of power to the
Trustees.
Section 2. Certain Transactions. Except as prohibited by applicable
law, the Trustees may, on behalf of the Trust, buy any securities from or sell
any securities to, or lend any assets of the Trust to, any Trustee or officer of
the Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any investment adviser, administrator,
distributor or transfer agent for the Trust or with any Interested Person of
such person. The Trust may employ any such person or entity in which such person
is an Interested Person, as broker, legal counsel, registrar, investment
adviser, administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
ARTICLE IV
SERIES; CLASSES; SHARES
Section 1. Establishment of Series or Classes. The Trust shall consist
of one or more Series. The Trustees hereby establish the Series listed in
Schedule A attached hereto and made a part hereof. Each additional Series shall
be established by the adoption of a resolution of the Trustees. The Trustees may
designate the relative rights and preferences of the Shares of each Series. The
Trustees may divide the Shares of any Series into Classes. In such case each
Class of a Series shall represent interests in the assets of that Series and
have identical voting, dividend, liquidation and other rights and the same terms
and conditions, except that expenses allocated to a Class may be borne solely by
such Class as determined by the Trustees and a Class may have exclusive voting
rights with respect to matters affecting only that Class. The Trust shall
maintain separate and distinct records for each Series and hold and account for
the assets thereof separately from the other assets of the Trust or of any other
Series. A Series may issue any number of Shares and need not issue Shares. Each
Share of a Series shall represent an equal beneficial interest in the net assets
of such Series. Each holder of Shares of a Series shall be entitled to receive
his pro rata share of all distributions made with respect to such Series. Upon
redemption of his Shares, such Shareholder shall be paid solely out of the funds
and property of such Series. The Trustees may change the name of any Series or
Class. At any time that there are no Shares outstanding of any particular Series
previously established and designated, the Trustees may by a majority vote
abolish that Series and rescind the establishment and designation thereof.
Section 2. Shares. The beneficial interest in the Trust shall be
divided into Shares of one or more separate and distinct Series or Classes
established by the Trustees. The number of Shares of each Series and Class is
unlimited and each Share shall have a par value of $0.001 per Share. All Shares
issued hereunder shall be fully paid and nonassessable. Shareholders shall have
no preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust. The Trustees shall have full power and
authority, in their sole discretion and without obtaining Shareholder approval:
to issue original or additional Shares at such times and on such terms and
conditions as they deem appropriate; to issue fractional Shares and Shares held
in the treasury; to establish and to change in any manner Shares of any Series
or Classes with such preferences, terms of conversion, voting powers, rights and
privileges as the Trustees may determine (but the Trustees may not change
Outstanding Shares in a manner materially adverse to the Shareholders of such
Shares); to divide or combine the Shares of any Series or Classes into a greater
or lesser number; to classify or reclassify any unissued Shares of any Series or
Classes into one or more Series or Classes of Shares; to abolish any one or more
Series or Classes of Shares; to issue Shares to acquire other assets (including
assets subject to, and in connection with, the assumption of liabilities) and
businesses; and to take such other action with respect to the Shares as the
Trustees may deem desirable. Shares held in the treasury shall not confer any
voting rights on the Trustees and shall not be entitled to any dividends or
other distributions declared with respect to the Shares.
Section 3. Investment in the Trust. The Trustees shall accept
investments in any Series from such persons and on such terms as they may from
time to time authorize. At the Trustees' discretion, such investments, subject
to applicable law, may be in the form of cash or securities in which that Series
is authorized to invest, valued as provided in Article V, Section 3. Investments
in a Series shall be credited to each Shareholder's account in the form of full
Shares at the Net Asset Value per Share next determined after the investment is
received or accepted as may be determined by the Trustees; provided, however,
that the Trustees may, in their sole discretion, (a) impose a sales charge upon
investments in any Series or Class, (b) issue fractional Shares, or (c)
determine the Net Asset Value per Share of the initial capital contribution. The
Trustees shall have the right to refuse to accept investments in any Series at
any time without any cause or reason therefor whatsoever.
Section 4. Assets and Liabilities of Series. All consideration
received by the Trust for the issue or sale of Shares of a particular 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 be held and accounted for separately from the other assets
of the Trust and every other Series and are referred to as "assets belonging to"
that Series. The assets belonging to a Series shall belong only to that Series
for all purposes, and to no other Series, subject only to the rights of
creditors of that Series. Any assets, income, earnings, profits, and proceeds
thereof, funds, or payments which are not readily identifiable as belonging to
any particular Series shall be allocated by the Trustees between and among one
or more Series as the Trustees deem fair and equitable. Each such allocation
shall be conclusive and binding upon the Shareholders of all Series for all
purposes, and such assets, earnings, income, profits or funds, or payments and
proceeds thereof shall be referred to as assets belonging to that Series. The
assets belonging to a Series shall be so recorded upon the books of the Trust,
and shall be held by the Trustees in trust for the benefit of the Shareholders
of that Series. The assets belonging to a Series shall be charged with the
liabilities of that Series and all expenses, costs, charges and reserves
attributable to that Series, except that liabilities and expenses allocated
solely to a particular Class shall be borne by that Class. Any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Series or Class shall be
allocated and charged by the Trustees between or among any one or more of the
Series or Classes in such manner as the Trustees deem fair and equitable. Each
such allocation shall be conclusive and binding upon the Shareholders of all
Series or Classes for all purposes.
Without limiting the foregoing, but subject to the right of the
Trustees to allocate general liabilities, expenses, costs, charges or reserves
as herein provided, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Series shall
be enforceable against the assets of such Series only, and not against the
assets of the Trust generally or of any other Series. Notice of this contractual
limitation on liabilities among Series may, in the Trustees' discretion, be set
forth in the certificate of trust of the Trust (whether originally or by
amendment) as filed or to be filed in the Office of the Secretary of State of
the State of Delaware pursuant to the Delaware Act, and upon the giving of such
notice in the certificate of trust, the statutory provisions of Section 3806 of
the Delaware Act relating to limitations on liabilities among Series (and the
statutory effect under Section 3806 of setting forth such notice in the
certificate of trust) shall become applicable to the Trust and each Series. Any
person extending credit to, contracting with or having any claim against any
Series may look only to the assets of that Series to satisfy or enforce any
debt, liability, obligation or expense incurred, contracted for or otherwise
existing with respect to that Series. No Shareholder or former Shareholder of
any Series shall have a claim on or any right to any assets allocated or
belonging to any other Series.
Section 5. Ownership and Transfer of Shares. The Trust shall maintain
a register containing the names and addresses of the Shareholders of each
Series, the number of Shares of each Series and Class thereof, and a record of
all Share transfers. The register shall be conclusive as to the identity of
Shareholders of record and the Shares held by them from time to time. The
Trustees may authorize the issuance of certificates representing Shares and
adopt rules governing their use. The Trustees may make rules governing the
transfer of Shares, whether or not represented by certificates.
Section 6. Status of Shares: Limitation of Shareholder Liability.
Shares shall be deemed to be personal property giving Shareholders only the
rights provided in this Trust Instrument. Every Shareholder, by virtue of having
acquired an Share, shall be held expressly to have assented to and agreed to be
bound by the terms of this Trust Instrument. No Shareholder shall be personally
liable for the debts, liabilities, obligations and expenses incurred by,
contracted for, or otherwise existing with respect to, the Trust or any Series.
Neither the Trust nor the Trustees shall have any power to bind any Shareholder
personally or to demand payment from any Shareholder for anything, other than as
agreed by the Shareholder. Shareholders shall have the same limitation of
personal liability as is extended to shareholders of a private corporation for
profit incorporated in the State of Delaware. Every written obligation of the
Trust or any Series shall contain a statement to the effect that such obligation
may only be enforced against the assets of the Trust or such Series; however,
the omission of such statement shall not operate to bind or create personal
liability for any Shareholder or Trustee.
ARTICLE V
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Trustees may declare and pay dividends
and other distributions, including dividends on Shares of a particular Series
and other distributions from the assets belonging to that Series. The amount and
payment of dividends or distributions and their form, whether they are in cash,
Shares or other Trust Property, shall be determined by the Trustees. Dividends
and other distributions may be paid pursuant to a standing resolution adopted
once or more often as the Trustees determine. All dividends and other
distributions on Shares of a particular Series shall be distributed pro rata to
the Shareholders of that Series in proportion to the number of Shares of that
Series they held on the record date established for such payment, except that
such dividends and distributions shall appropriately reflect expenses allocated
to a particular Class of such Series. The Trustees may adopt and offer to
Shareholders such dividend reinvestment plans, cash dividend payout plans or
similar plans as the Trustees deem appropriate.
Section 2. Redemptions. Each Shareholder of a Series shall have the
right at such times as may be permitted by the Trustees to require the Series to
redeem all or any part of his Shares at a redemption price per Share equal to
the Net Asset Value per Share at such time as the Trustees shall have prescribed
by resolution. In the absence of such resolution, the redemption price per Share
shall be the Net Asset Value next determined after receipt by the Series of a
request for redemption in proper form less such charges as are determined by the
Trustees and described in the Trust's Registration Statement for that Series
under the Securities Act of 1933. The Trustees may specify conditions, prices,
and places of redemption, and may specify binding requirements for the proper
form or forms of requests for redemption. Payment of the redemption price may be
wholly or partly in securities or other assets at the value of such securities
or assets used in such determination of Net Asset Value, or may be in cash. Upon
redemption, Shares may be reissued from time to time. The Trustees may require
Shareholders to redeem Shares for any reason under terms set by the Trustees,
including the failure of a Shareholder to supply a personal identification
number if required to do so, or to have the minimum investment required, or to
pay when due for the purchase of Shares issued to him. To the extent permitted
by law, the Trustees may retain the proceeds of any redemption of Shares
required by them for payment of amounts due and owing by a Shareholder to the
Trust or any Series or Class. Notwithstanding the foregoing, the Trustees may
postpone payment of the redemption price and may suspend the right of the
Shareholders to require any Series or Class to redeem Shares during any period
of time when and to the extent permissible under the 1940 Act.
Section 3. Determination of Net Asset Value. The Trustees shall cause
the Net Asset Value of Shares of each Series or Class to be determined from time
to time in a manner consistent with applicable laws and regulations. The
Trustees may delegate the power and duty to determine Net Asset Value per Share
to one or more Trustees or officers of the Trust or to a custodian, depository
or other agent appointed for such purpose. The Net Asset Value of Shares shall
be determined separately for each Series or Class at such times as may be
prescribed by the Trustees or, in the absence of action by the Trustees, as of
the close of trading on the New York Stock Exchange on each day for all or part
of which such Exchange is open for unrestricted trading.
Section 4. Suspension of Right of Redemption. If, as referred to in
Section 2 of this Article, the Trustees postpone payment of the redemption price
and suspend the right of Shareholders to redeem their Shares, such suspension
shall take effect at the time the Trustees shall specify, but not later than the
close of business on the business day next following the declaration of
suspension. Thereafter Shareholders shall have no right of redemption or payment
until the Trustees declare the end of the suspension. If the right of redemption
is suspended, a Shareholder may either withdraw his request for redemption or
receive payment based on the Net Asset Value per Share next determined after the
suspension terminates.
Section 5. Redemptions Necessary for Qualification as Regulated
Investment Company. If the Trustees shall determine that direct or indirect
ownership of Shares of any Series has or may become concentrated in any person
to an extent which would disqualify any Series as a regulated investment company
under the Internal Revenue Code of 1986, as amended or superseded from time to
time ("Internal Revenue Code"), then the Trustees shall have the power (but not
the obligation) by lot or other means they deem equitable to (a) call for
redemption by any such person of a number, or principal amount, of Shares
sufficient to maintain or bring the direct or indirect ownership of Shares into
conformity with the requirements for such qualification and (b) refuse to
transfer or issue Shares to any person whose acquisition of Shares in question
would, in the Trustees' judgment, result in such disqualification. Any such
redemption shall be effected at the redemption price and in the manner provided
in this Article. Shareholders shall upon demand disclose to the Trustees in
writing such information concerning direct and indirect ownership of Shares as
the Trustees deem necessary to comply with the requirements of any taxing
authority.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. The Shareholders shall have power to vote
only with respect to (a) the election of Trustees; (b) the removal of Trustees;
(c) the amendment of this Trust Instrument to the extent and as provided in
Article X, Section 8; and (d) such additional matters relating to the Trust as
may be required by law, this Trust Instrument, or the Bylaws or any registration
of the Trust with the Commission or any State, or as the Trustees may consider
desirable.
On any matter submitted to a vote of the Shareholders, all Shares
shall be voted by individual Series or Class, except (a) when required by the
1940 Act, Shares shall be voted in the aggregate and not by individual Series or
Class, and (b) when the Trustees have determined that the matter affects the
interests of more than one Series or Class, then the Shareholders of all such
Series or Classes shall be entitled to vote thereon. Each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote, and each
fractional Share shall be entitled to a proportionate fractional vote. There
shall be no cumulative voting in the election of Trustees. Shares may be voted
in person or by proxy or in any manner provided for in the Bylaws. The Bylaws
may provide that proxies may be given by any electronic or telecommunications
device or in any other manner, but if a proposal by anyone other than the
officers or Trustees is submitted to a vote of the Shareholders of any Series or
Class, or if there is a proxy contest or proxy solicitation or proposal in
opposition to any proposal by the officers or Trustees, Shares may be voted only
in person or by written proxy. Until Shares of a Series are issued, as to that
Series, the Trustees may exercise all rights of Shareholders and may take any
action required or permitted to be taken by Shareholders by law, this Trust
Instrument or the Bylaws.
Section 2. Meetings of Shareholders. The first Shareholders' meeting
shall be held to elect Trustees at such time and place as the Trustees
designate, provided, however, that such election may be accomplished by the
Shareholders' written consent. Special meetings of the Shareholders of any
Series or Class may be called by the Trustees and shall be called by the
Trustees upon the written request of Shareholders owning at least ten percent
(10%) of the Outstanding Shares of such Series entitled to vote. Shareholders
shall be entitled to at least ten days notice of any meeting, given as
determined by the Trustees.
Section 3. Quorum; Required Vote. One third of the Outstanding Shares
of each Series or Class, or one third of the Outstanding Shares of the Trust,
entitled to vote in person or by proxy shall be a quorum for the transaction of
business at a Shareholders meeting with respect to such Series or Class, or with
respect to the entire Trust, respectively. Except when a larger vote is required
by law, this Trust Instrument or the Bylaws, at any meeting at which a quorum is
present, a majority of the total Shares voted in person or by proxy shall decide
any matters to be voted upon with respect to the entire Trust and a plurality of
such Shares shall elect a Trustee; provided, that if this Trust Instrument or
applicable law permits or requires that Shares be voted on any matter by
individual Series or Classes, then a majority of the Shares of that Series or
Class (or, if required by law, a Majority Shareholder Vote of that Series) voted
in person or by proxy on the matter shall decide that matter insofar as that
Series or Class is concerned. Shareholders may act as to the Trust or any Series
or Class by the written consent of a majority (or such greater amount as may be
required by applicable law) of the Outstanding Shares of the Trust or of such
Series or Class, as the case may be.
Notwithstanding any other provision herein or in the Bylaws, any
meeting of Shareholders, whether or not a quorum is present, may be adjourned
from time to time by the vote of the majority of the total Shares represented at
that meeting, either in person or by proxy. Any adjourned session of a meeting
of Shareholders may be held within a reasonable time without further notice.
ARTICLE VII
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Investment Adviser. Subject to a Majority Shareholder Vote,
the Trustees may enter into one or more investment advisory contracts on behalf
of the Trust or any Series, providing for investment advisory services,
statistical and research facilities and services, and other facilities and
services to be furnished to the Trust or Series on terms and conditions
acceptable to the Trustees. Any such contract may provide for the investment
adviser to effect purchases, sales or exchanges of portfolio securities or other
Trust Property on behalf of the Trustees or may authorize any officer or agent
of the Trust to effect such purchases, sales or exchanges pursuant to
recommendations of the investment adviser. The Trustees may authorize the
investment adviser to employ one or more subadvisers. Any reference in this
Trust Instrument to the investment adviser shall be deemed to include such
subadvisers, unless the context otherwise requires.
Section 2. Principal Underwriter. The Trustees may enter into
contracts on behalf of the Trust or any Series or Class, providing for the
distribution and sale of Shares by the other party, either directly or as sales
agent, on terms and conditions acceptable to the Trustees. The Trustees may
adopt a plan or plans of distribution with respect to Shares of any Series or
Class and enter into any related agreements, whereby the Series or Class
finances directly or indirectly any activity that is primarily intended to
result in sales of its Shares, subject to the requirements of Section 12 of the
1940 Act, Rule 12b-1 thereunder, and other applicable rules and regulations.
Section 3. Transfer Agency, Shareholder Services and Administration
Agreements. The Trustees, on behalf of the Trust or any Series or Class, may
enter into transfer agency agreements, Shareholder service agreements and
administration and management agreements with any party or parties on terms and
conditions acceptable to the Trustees or delegate to a service provider the
arrangement of these and other services.
Section 4. Custodian. The Trustees shall at all times place and
maintain the securities and similar investments of the Trust and of each Series
in custody meeting the requirements of Section 17(f) of the 1940 Act and the
rules thereunder. The Trustees, on behalf of the Trust or any Series, may enter
into an agreement with a custodian on terms and conditions acceptable to the
Trustees, providing for the custodian, among other things, to (a) hold the
securities owned by the Trust or any Series and deliver the same upon written
order or oral order confirmed in writing, (b) receive and receipt for any moneys
due to the Trust or any Series and deposit the same in its own banking
department or elsewhere, (c) disburse such funds upon orders or vouchers, and
(d) employ one or more sub-custodians.
Section 5. Parties to Contracts with Service Providers. The Trustees
may enter into any contract referred to in this Article with any entity,
although one or more of the Trustees or officers of the Trust may be an officer,
director, trustee, partner, shareholder or member of such entity, and no such
contract shall be invalidated or rendered void or voidable because of such
relationship. No person having such a relationship shall be disqualified from
voting on or executing a contract in his capacity as Trustee and/or Shareholder,
or be liable merely by reason of such relationship for any loss or expense to
the Trust with respect to such a contract or accountable for any profit realized
directly or indirectly therefrom.
Any contract referred to in Sections 1 and 2 of this Article shall be
consistent with and subject to the applicable requirements of Section 15 of the
1940 Act and the rules and orders thereunder with respect to its continuance in
effect, its termination and the method of authorization and approval of such
contract or renewal. No amendment to a contract referred to in Section 1 of this
Article shall be effective unless assented to in a manner consistent with the
requirements of Section 15 of the 1940 Act, and the rules and orders thereunder.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Subject to Article IV, Section 4, the Trust or a particular Series
shall pay, directly or indirectly through contractual arrangements, or shall
reimburse the Trustees from the Trust estate or the assets belonging to the
particular Series, for their expenses and disbursements, including, but not
limited to, interest charges, taxes, brokerage fees and commissions; expenses of
pricing Trust portfolio securities; expenses of sale, addition and reduction of
Shares; certain insurance premiums; applicable fees, interest charges and
expenses of third parties, including the Trust's investment advisers, managers,
administrators, distributors, custodians, transfer agents and fund accountants;
fees of pricing, interest, dividend, credit and other reporting services; costs
of membership in trade associations; telecommunications expenses; funds
transmission expenses; auditing, legal and compliance expenses; costs of forming
the Trust and its Series and maintaining its existence; costs of preparing and
printing the prospectuses of the Trust and each Series, statements of additional
information and Shareholder reports and delivering them to Shareholders;
expenses of meetings of Shareholders and proxy solicitations therefor; costs of
maintaining books and accounts; costs of reproduction, stationery and supplies;
fees and expenses of the Trustees; compensation of the Trust's officers and
employees and costs of other personnel performing services for the Trust or any
Series; costs of Trustee meetings; Commission registration fees and related
expenses; registration fees and related expenses under state or foreign
securities or other laws; and for such non-recurring items as may arise,
including litigation to which the Trust or a Series (or a Trustee or officer of
the Trust acting as such) is a party, and for all losses and liabilities by them
incurred in administering the Trust. The Trustees shall have a lien on the
assets belonging to the appropriate Series, or in the case of an expense
allocable to more than one Series, on the assets of each such Series, prior to
any rights or interests of the Shareholders thereto, for the reimbursement to
them of such expenses, disbursements, losses and liabilities. This Article shall
not preclude the Trust from directly paying any of the aforementioned fees and
expenses.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Limitation of Liability. All persons contracting with or
having any claim against the Trust or a particular Series shall look only to the
assets of the Trust or such Series for payment under such contract or claim; and
neither the Trustees nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable therefor. Every
written instrument or obligation on behalf of the Trust or any Series shall
contain a statement to the foregoing effect, but the absence of such statement
shall not operate to make any Trustee or officer of the Trust liable thereunder.
Provided they have exercised reasonable care and have acted under the reasonable
belief that their actions are in the best interest of the Trust, the Trustees,
officers, employees and managers of the Trust shall not be responsible or liable
for any act or omission or for neglect or wrongdoing of them or any officer,
agent, employee, manager, investment adviser, delegate or independent contractor
of the Trust, but nothing contained in this Trust Instrument or in the Delaware
Act shall protect any Trustee, officer, employee or manager of the Trust against
liability to the Trust or to Shareholders to which he 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.
Section 2. Indemnification.
(a) Subject to the exceptions and limitations contained in subsection
(b) below:
(i) every person who is, or has been, a Trustee, officer, employee,
manager or agent of the Trust (including persons who serve at the Trust's
request as directors, trustees, officers or agents of another organization in
which the Trust has any interest as a shareholder, creditor or otherwise)
("Covered Person") shall be indemnified by the Trust or the appropriate Series
to the fullest extent permitted by law against liability and against all
expenses reasonably incurred or paid by such person in connection with any
claim, action, suit or proceeding in which such person becomes involved as a
party or otherwise by virtue of being or having been a Covered Person and
against amounts paid or incurred by such person in the settlement thereof,
whether or not such person is a Covered Person at the time such expenses are
incurred;
(ii) as used herein, the words "claim," "action," "suit," or
"proceeding" shall apply to all claims, actions, suits or proceedings (civil,
criminal or other, including appeals), actual or threatened while in office or
thereafter, and the words "liability" and "expenses" shall include, without
limitation, attorney's fees, costs, judgments, amounts paid in settlement,
fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered
Person:
(i) who shall have been adjudicated by a court or body before which
the proceeding was brought (A) to be liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office, or (B) not to have acted in
good faith in the reasonable belief that his action was in or not opposed to the
best interests of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Covered Person did not engage in willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office: (A) by the court or other body approving the settlement;
(B) by at least a majority of those Trustees who are neither Interested Persons
of the Trust nor are parties to the matter based upon a review of readily
available facts (as opposed to a full trial type inquiry); or (C) by written
opinion of independent legal counsel based upon a review of readily available
facts (as opposed to a full trial type inquiry).
(c) To the maximum extent permitted by applicable law, expenses in
connection with the preparation and presentation of a defense to any claim,
action, suit or proceeding of the character described in subsection (a) of this
Section may be paid by the Trust or applicable Series from time to time prior to
final disposition thereof upon receipt of an undertaking by or on behalf of such
Covered Person that such amount will be paid over by such person to the Trust or
applicable Series if it is ultimately determined that such person is not
entitled to indemnification under this Section; provided, however, that either
(i) such Covered Person shall have provided appropriate security for such
undertaking, (ii) the Trust is insured against losses arising out of any such
advance payments or (iii) either a majority of the Trustees who are neither
Interested Persons of the Trust nor parties to the matter, or independent legal
counsel in a written opinion, shall have determined, based upon a review of
readily available facts (as opposed to a full trial type inquiry) that there is
reason to believe that such Covered Person will not be disqualified from
indemnification under this Section.
(d) The rights of indemnification herein provided shall be severable,
shall not be exclusive of or affect any other rights to which any Covered Person
may now or hereafter be entitled, and shall inure to the benefit of the heirs,
executors and administrators of a Covered Person.
(e) By action of the Trustees, and notwithstanding any interest of the
Trustees in the action, the Trust shall have power to purchase and maintain
insurance, in such amounts as the Trustees deem appropriate, on behalf of any
Covered Person, whether or not such person is indemnified against such liability
or expense under the provisions of this Article IX and whether or not the Trust
would have the power or would be required to indemnify such person against such
liability under the provisions of this Article IX or of the Delaware Act or by
any other applicable law, subject only to any limitations imposed by the 1940
Act.
(f) Any repeal or modification of this Article IX by the Shareholders
of the Trust, or adoption or modification of any other provision of the Trust
Instrument or Bylaws inconsistent with this Article, shall be prospective only,
to the extent that such repeal or modification would, if applied
retrospectively, adversely affect any limitation on the liability of any Covered
Person or indemnification available to any Covered Person with respect to any
act or omission which occurred prior to such repeal, modification or adoption.
Section 3. Indemnification of Shareholders. If any Shareholder or
former Shareholder of any Series shall be held personally liable solely by
reason of being or having been a Shareholder and not because of acts or
omissions or for some other reason, the Shareholder or former Shareholder (or
such person's heirs, executors, administrators or other legal representatives or
in the case of any entity, its general successor) shall be entitled out of the
assets belonging to the applicable Series to be held harmless from and
indemnified against all loss and expense arising from such liability. The Trust,
on behalf of the affected Series, shall, upon request by such Shareholder,
assume the defense of any such claim made against such Shareholder for any act
or obligation of the Series and satisfy any judgment thereon from the assets of
the Series.
ARTICLE X
MISCELLANEOUS
Section 1. Trust Not a Partnership. This Trust Instrument creates a
trust and not a partnership, except to the extent such trust is deemed to
constitute a partnership under the Code and applicable state tax laws. No
Trustee shall have any power to bind personally either the Trust's officers or
any Shareholder.
Section 2. Trustee Action; Expert Advice; No Bond or Surety. The
exercise by the Trustees of their powers and discretion hereunder in good faith
and with reasonable care under the circumstances then prevailing shall be
binding upon everyone interested. Subject to the provisions of Article IX, the
Trustees shall not be liable for errors of judgment or mistakes of fact or law.
The Trustees may take advice of counsel or other experts with respect to the
meaning and operation of this Trust Instrument, and subject to the provisions of
Article IX, shall not be liable for any act or omission in accordance with such
advice or for failing to follow such advice. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is obtained.
Section 3. Record Dates. The Trustees may fix in advance a date up to
ninety (90) days before the date of any Shareholders meeting, or the date for
the allotment of rights, or the date when any change or conversion or exchange
of Shares shall go into effect as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such meeting, or to
receive any such allotment of rights, or to exercise such rights in respect of
any such change, conversion or exchange of Shares. Any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to vote at such
meeting or any adjournment thereof.
Section 4. Termination of the Trust.
(a) Except as provided herein, the Trust shall have perpetual
existence. The Trust may be terminated at any time by vote of a majority of the
Shares of each Series entitled to vote, voting separately by Series, or by the
Trustees by written notice to the Shareholders. Any Series of Shares or Class
thereof may be terminated at any time by vote of a majority of the Shares of
such Series or Class entitled to vote or by the Trustees by written notice to
the Shareholders of such Series or Class.
(b) Upon the requisite Shareholder vote or action by the Trustees to
terminate the Trust or any one or more Series or any Class thereof, after making
reasonable provision for the payment of all known liabilities of the Trust or
any affected Series, the Trustees shall distribute the remaining proceeds or
assets (as the case may be) ratably among the Shareholders of the Trust or any
affected Series or Class; however, the payment to any particular Class of such
Series may be reduced by any fees, expenses or charges allocated to that Class.
Upon completion of the distribution of the remaining proceeds or assets, the
Trust or affected Series or Class shall terminate and the Trustees and the Trust
shall be discharged of any and all further liabilities and duties hereunder with
respect thereto and the right, title and interest of all parties therein shall
be canceled and discharged.
(c) Upon termination of the Trust, following completion of winding up
of its business, the Trustees shall cause a certificate of cancellation of the
Trust's certificate of trust to be filed in accordance with the Delaware Act,
which certificate of cancellation may be signed by any one Trustee.
Section 5. Reorganization; Merger; Consolidation.
(a) Notwithstanding anything else herein, to change the Trust's form
of organization the Trustees may, without Shareholder approval to the extent
permitted by applicable law, (i) cause the Trust to merge or consolidate with or
into one or more entities, if the surviving or resulting entity is the Trust or
another open-end management investment company under the 1940 Act, or a series
thereof, that will succeed to or assume the Trust's registration under the 1940
Act, (ii) cause the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law, (iii) sell the assets of the
Trust in exchange for shares of another management investment company, or (iv)
cause the Trust to incorporate under the laws of Delaware. Any agreement of
merger or consolidation or certificate of merger may be signed by a majority of
Trustees and facsimile signatures conveyed by electronic or telecommunication
means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, an agreement of merger or consolidation approved in
accordance with this Section 5 may effect any amendment to the governing
instrument of the Trust or effect the adoption of a new trust instrument of the
Trust if it is the surviving or resulting trust in the merger or consolidation.
(c) The Trustees may create one or more business trusts to which all
or any part of the assets, liabilities, profits, or losses of the Trust or any
Series or Class thereof may be transferred and may provide for the conversion of
Shares in the Trust or any Series or Class thereof into beneficial interests in
any such newly created trust or trusts or any series or classes thereof.
Section 6. Trust Instrument. The original or a copy of this Trust
Instrument and of each amendment hereto or Trust Instrument supplemental shall
be kept at the office of the Trust where it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by a Trustee or an
officer of the Trust as to the authenticity of the Trust Instrument or any such
amendments or supplements and as to any matters in connection with the Trust.
The masculine gender herein shall include the feminine and neuter genders.
Headings herein are for convenience only and shall not affect the construction
of this Trust Instrument. This Trust Instrument may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 7. Applicable Law. This Trust Instrument and the Trust created
hereunder are governed by and construed and administered according to the
Delaware Act and the applicable laws of the State of Delaware; provided,
however, that there shall not be applicable to the Trust, the Trustees or this
Trust Instrument (a) the provisions of Section 3540 of Title 12 of the Delaware
Code, or (b) any provisions of the laws (statutory or common) of the State of
Delaware (other than the Delaware Act) pertaining to trusts which relate to or
regulate (i) the filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges, (ii) affirmative requirements
to post bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards of responsibility or limitations on the acts or powers of
trustees, which are inconsistent with the limitations on liabilities or
authority and powers of the Trustees set forth or referenced in this Trust
Instrument. The Trust shall be of the type commonly called a Delaware business
trust, and, without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts under
the Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise such
power or privilege or take such actions.
Section 8. Amendments. The Trustees may, without any Shareholder vote,
amend or otherwise supplement this Trust Instrument by making an amendment, a
Trust Instrument supplemental hereto or an amended and restated trust
instrument; provided, that Shareholders shall have the right to vote on any
amendment (a) which would affect the voting rights of Shareholders granted in
Article VI, Section 1, (b) to this Section 8, (c) required to be approved by
Shareholders by law or by the Trust's registration statement(s) filed with the
Commission, and (d) submitted to them by the Trustees in their discretion. Any
amendment submitted to Shareholders which the Trustees determine would affect
the Shareholders of any Series or Class shall be authorized by vote of the
Shareholders of such Series or Class and no vote shall be required of
Shareholders of a Series or Class not affected.
Notwithstanding anything else herein, any amendment to Article IX
which would have the effect of reducing the indemnification and other rights
provided thereby to Trustees, officers, employees and agents of the Trust or to
Shareholders or former Shareholders, and any repeal or amendment of this
sentence, shall each require the affirmative vote of the holders of two-thirds
(2/3) of the Outstanding Shares of the Trust entitled to vote thereon.
Section 9. Fiscal Year. The fiscal year of the Trust shall end on the
date set by resolution approved by the Trustees. The Trustees may change the
fiscal year of the Trust without Shareholder approval.
Section 10. Severability. The provisions of this Trust Instrument are
severable. If the Trustees determine, with the advice of counsel, that any
provision hereof conflicts with the 1940 Act, the regulated investment company
or other provisions of the Code or with other applicable laws and regulations,
the conflicting provision shall be deemed never to have constituted a part of
this Trust Instrument; provided, however, that such determination shall not
affect any of the remaining provisions of this Trust Instrument or render
invalid or improper any action taken or omitted prior to such determination. If
any provision hereof shall be held invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall attach only to such provision only in
such jurisdiction and shall not affect any other provision of this Trust
Instrument.
Section 11. Use of the Name "Marsico". Marsico Capital Management,
Inc. ("Marsico Capital") has consented to and granted a non-exclusive license
for the use by the Trust and by each Series thereof to the phrase "Marsico
Capital" or the identifying word "Marsico" in the name of the Trust and of each
Series. Such consent is conditioned upon the Trust's employment of Marsico
Capital or its affiliate as investment adviser to the Trust and to each Series.
As between Marsico Capital and the Trust, Marsico Capital shall control the use
of such name insofar as such name contains the phrase "Marsico Capital" or the
identifying word "Marsico." Marsico may from time to time use the phrase
"Marsico Capital" or the identifying word "Marsico" in other connections and for
other purposes, including without limitation in the names of other investment
companies, corporations or businesses that it may manage, advise, sponsor or own
or in which it may have a financial interest. Marsico Capital may require the
Trust or any Series to cease using the phrase "Marsico Capital " or the
identifying word "Marsico" in the name of the Trust or any Series if the Trust
or Series ceases to employ Marsico Capital or an affiliate thereof as investment
adviser.
<PAGE>
IN WITNESS WHEREOF, the undersigned, being all of the initial
Trustees, have executed this Trust Instrument as of the date first above
written.
/s/ Thomas F. Marsico, as
Trustee and not individually
/s/ Christopher J. Marsico, as
Trustee and not individually
/s/ Barbara M. Japha, as
Trustee and not individually
<PAGE>
SCHEDULE A
SERIES OF THE TRUST
Marsico Focus Fund
Marsico Growth & Income Fund
CERTIFICATE OF TRUST
OF
THE MARSICO INVESTMENT FUND
a Delaware Business Trust
This Certificate of Trust of The Marsico Investment Fund (the "Trust") is
filed in accordance with the provisions of the Delaware Business Trust Act (Del.
Ann. Code tit. 12, Section 3801 et seq.) and sets forth the following:
1. The name of the Trust is: The Marsico Investment Fund
2. The business address of the registered office of the Trust and
of the registered agent of the Trust is:
CT Corporation System
1209 Orange Street
Wilmington, Delaware 19801
3. This Certificate shall be effective upon filing.
4. The Trust is a Delaware business trust to be registered under
the Investment Company Act of 1940, as amended.
5. Notice is hereby given that the Trust shall consist of one or
more series. The debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to
a particular series of the Trust shall be enforceable against
the assets of such series only and not against the assets of
the Trust generally.
IN WITNESS WHEREOF, the undersigned, being all the trustees of the
Trust, have duly executed this Certificate of Trust as of the 1st day of
October, 1997.
/s/Thomas F. Marsico,
as Trustee and not individually
/s/Christopher J. Marsico,
as Trustee and not individually
/s/Barbara M. Japha,
as Trustee and not individually
THE MARSICO INVESTMENT FUND
(A Delaware Business Trust)
BYLAWS
October 1, 1997
<PAGE>
TABLE OF CONTENTS
ARTICLE I NAME OF TRUST, PRINCIPAL OFFICE AND SEAL.............. 1
Section 1. Principal Office........................................ 1
Section 2. Delaware Office......................................... 1
Section 3. Seal.................................................... 1
ARTICLE II MEETINGS OF TRUSTEES.................................. 1
Section 1. Meetings................................................ 1
Section 2. Action Without a Meeting................................ 1
Section 3. Compensation of Trustees................................ 2
ARTICLE III COMMITTEES............................................ 2
Section 1. Organization............................................ 2
Section 2. Executive Committee..................................... 2
Section 3. Nominating Committee.................................... 2
Section 4. Audit Committee......................................... 2
Section 5. Other Committees........................................ 2
Section 6. Proceedings and Quorum.................................. 2
Section 7. Compensation of Committee Members....................... 3
ARTICLE IV OFFICERS.............................................. 3
Section 1. General................................................. 3
Section 2. Election, Tenure and Qualifications of
Officers.......................................... 3
Section 3. Vacancies and Newly Created Offices..................... 3
Section 4. Removal and Resignation................................. 3
Section 5. President............................................... 3
Section 6. Vice President.......................................... 4
Section 7. Treasurer and Assistant Treasurers...................... 4
Section 8. Secretary and Assistant Secretaries..................... 4
Section 9. Subordinate Officers.................................... 4
Section 10. Compensation of Officers................................ 4
Section 11. Surety Bond............................................. 5
ARTICLE V MEETINGS OF SHAREHOLDERS.............................. 5
Section 1. Annual Meetings......................................... 5
Section 2. Special Meetings........................................ 5
Section 3. Notice of Meetings...................................... 5
Section 4. Validity of Proxies..................................... 6
Section 5. Place of Meeting........................................ 6
Section 6. Action Without a Meeting................................ 6
ARTICLE VI SHARES IN THE TRUST................................... 6
Section 1. Certificates............................................ 6
Section 2. Non-Transferability of Shares........................... 7
ARTICLE VII CUSTODY OF SECURITIES................................. 7
Section 1. Employment of a Custodian............................... 7
Section 2. Termination of Custodian Agreement...................... 7
Section 3. Other Arrangements...................................... 7
ARTICLE VIII FISCAL YEAR AND ACCOUNTANT............................ 7
Section 1. Fiscal Year............................................. 7
Section 2. Accountant.............................................. 7
ARTICLE IX AMENDMENTS............................................ 8
Section 1. General................................................. 8
ARTICLE X MISCELLANEOUS.......................................... 8
Section 1. Inspection of Books...................................... 8
Section 2. Severability............................................. 8
Section 3. Headings................................................. 8
<PAGE>
BYLAWS
OF
THE MARSICO INVESTMENT FUND
(A Delaware Business Trust)
These Bylaws of The Marsico Investment Fund (the "Trust"), a Delaware business
trust, are subject to the Trust Instrument of the Trust dated October 1, 1997,
as from time to time amended, supplemented or restated (the "Trust Instrument").
Capitalized terms used herein have the same meaning as in the Trust Instrument.
ARTICLE I
NAME OF TRUST, PRINCIPAL OFFICE AND SEAL
Section 1. Principal Office. The principal office of the Trust shall be
located in Cherry Hills Village, Colorado, or such other location as the
Trustees may from time to time determine. The Trust may establish and maintain
other offices and places of business as the Trustees may from time to time
determine.
Section 2. Delaware Office. The Trustees shall establish a registered
office in the State of Delaware and shall appoint as the Trust's registered
agent for service of process in the State of Delaware an individual resident of
the State of Delaware or a Delaware corporation or a corporation authorized to
transact business in the State of Delaware and in any case the business office
of such registered agent for service of process shall be identical with the
registered Delaware office of the Trust.
Section 3. Seal. The Trustees may adopt a seal which shall be in such
form and have such inscription as the Trustees may from time to time determine.
Any Trustee or officer of the Trust shall have authority to affix the seal to
any document, provided that the failure to affix the seal shall not affect the
validity or effectiveness of any document.
ARTICLE II
MEETINGS OF TRUSTEES
Section 1. Meetings. Meetings of the Trustees may be held at such
places and such times as the Trustees may from time to time determine. Such
meetings may be called orally or in writing by the Chairman of the Trustees or
by any two other Trustees. Each Trustee shall be given notice of any meeting as
provided in Article II, Section 7, of the Trust Instrument.
Section 2. Action Without a Meeting. Actions may be taken by the
Trustees without a meeting or by a telephone meeting, as provided in Article
II, Section 7, of the Trust Instrument.
Section 3. Compensation of Trustees. Each Trustee may receive such
compensation from the Trust for his or her services and reimbursement for his or
her expenses as may be fixed from time to time by the Trustees.
ARTICLE III
COMMITTEES
Section 1. Organization. The Trustees may designate one or more
committees of the Trustees. The Chairmen of such committees shall be elected by
the Trustees. The number composing such committees and the powers conferred upon
the same shall be determined by the vote of a majority of the Trustees. All
members of such committees shall hold office at the pleasure of the Trustees.
The Trustees may abolish any such committee at any time in their sole
discretion. Any committee to which the Trustees delegate any of their powers
shall maintain records of its meetings and shall report its actions to the
Trustees. The Trustees shall have the power to rescind any action of any
committee, but no such rescission shall have retroactive effect. The Trustees
shall have the power at any time to fill vacancies in the committees. The
Trustees may delegate to these committees any of its powers, subject to the
limitations of applicable law.
Section 2. Executive Committee. The Trustees may elect from their own
number an Executive Committee which shall have any or all the powers of the
Trustees when the Trustees are not in session. The Chairman of the Trustees
shall be a member of the Executive Committee.
Section 3. Nominating Committee. The Trustees may elect from their own
number a Nominating Committee composed entirely of Trustees who are not
Interested Persons which shall have the power to select and nominate Trustees
who are not Interested Persons, and shall have such other powers and perform
such other duties as may be assigned to it from time to time by the Trustees.
Section 4. Audit Committee. The Trustees may elect from their own
number an Audit Committee composed entirely of Trustees who are not Interested
Persons which shall have the power to review and evaluate the audit function,
including recommending independent certified public accountants, and shall have
such other powers and perform such other duties as may be assigned to it from
time to time by the Trustees.
Section 5. Other Committees. The Trustees may appoint other committees
whose members need not be Trustees. Each such committee shall have such powers
and perform such duties as may be assigned to it from time to time by the
Trustees, but shall not exercise any power which may lawfully be exercised only
by the Trustees or a committee thereof.
Section 6. Proceedings and Quorum. In the absence of an appropriate
resolution of the Trustees, each committee may adopt such rules and regulations
governing its proceedings, quorum and manner of acting as it shall deem proper
and desirable. In the event any member of any committee is absent from any
meeting, the members present at the meeting, whether or not they constitute a
quorum, may appoint a Trustee to act in the place of such absent member.
Section 7. Compensation of Committee Members. Each committee member may
receive such compensation from the Trust for his or her services and
reimbursement for his or her expenses as may be fixed from time to time by the
Trustees.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Trust shall be a President, a
Treasurer, a Secretary, and may include one or more Vice Presidents, Assistant
Treasurers or Assistant Secretaries, and such other officers as the Trustees may
from time to time elect. It shall not be necessary for any Trustee or other
officer to be a Shareholder of the Trust.
Section 2. Election, Tenure and Qualifications of Officers. The
officers of the Trust, except those appointed as provided in Section 9 of this
Article, shall be elected by the Trustees. Each officer elected by the Trustees
shall hold office until his or her successor shall have been elected and
qualified or until his or her earlier resignation. Any person may hold one or
more offices of the Trust except that no one person may serve concurrently as
both President and Secretary. A person who holds more than one office in the
Trust 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. No officer need be a Trustee.
Section 3. Vacancies and Newly Created Offices. Whenever a vacancy
shall occur in any office, regardless of the reason for such vacancy, or if any
new office shall be created, such vacancies or newly created offices may be
filled by the Trustees or, in the case of any office created pursuant to Section
9 of this Article, by any officer upon whom such power shall have been conferred
by the Trustees.
Section 4. Removal and Resignation. Any officer may be removed from
office at any time, with or without cause, by the Trustees. In addition, any
officer or agent appointed in accordance with the provisions of Section 9 of
this Article may be removed, with or without cause, by any officer upon whom
such power of removal shall have been conferred by the Trustees. Any officer may
resign from office at any time by delivering a written resignation to the
Trustees, the President, the Secretary, or any Assistant Secretary. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Section 5. President. Subject to the direction of the Trustees, the
President shall have general charge of the business affairs, policies and
property of the Trust and general supervision over its officers, employees and
agents. In the absence of the Chairman of the Trustees or if no Chairman of the
Trustees has been elected, the President shall preside at all Shareholders'
meetings and at all meetings of the Trustees and shall in general exercise the
powers and perform the duties of the Chairman of the Trustees. Except as the
Trustees may otherwise order, the President shall have the power to grant,
issue, execute or sign such powers of attorney, proxies, agreements or other
documents as may be deemed advisable or necessary in the furtherance of the
interests of the Trust or any Series or Class thereof. The President also shall
have the power to employ attorneys, accountants and other advisers and agents
for the Trust. The President shall exercise such other powers and perform such
other duties as the Trustees may from time to time assign to the President.
Section 6. Vice President. The Trustees may from time to time elect one
or more Vice Presidents who shall have such powers and perform such duties as
may from time to time be assigned to them by the Trustees or the President. At
the request or in the absence or disability of the President, the Vice President
(or, if there are two or more Vice Presidents, then the first appointed of the
Vice Presidents present and able to act) may perform all the duties of the
President and, when so acting, shall have all the powers of and be subject to
all the restrictions upon the President.
Section 7. Treasurer and Assistant Treasurers. The Treasurer shall be
the principal financial and accounting officer of the Trust and shall have
general charge of the finances and books of the Trust. The Treasurer shall
deliver all funds and securities of the Trust to such company as the Trustees
shall retain as custodian in accordance with the Trust Instrument, these Bylaws,
and applicable law. The Treasurer shall make annual reports regarding the
business and financial condition of the Trust as soon as possible after the
close of the Trust's fiscal year. The Treasurer also shall furnish such other
reports concerning the business and financial condition of the Trust as the
Trustees may from time to time require. The Treasurer shall perform all acts
incidental to the office of Treasurer, subject to the supervision of the
Trustees, and shall perform such additional duties as the Trustees may from time
to time designate.
Any Assistant Treasurer may perform such duties of the Treasurer as the
Trustees or the Treasurer may assign, and, in the absence of the Treasurer, may
perform all the duties of the Treasurer.
Section 8. Secretary and Assistant Secretaries. The Secretary shall
record all votes and proceedings of the meetings of Trustees and Shareholders in
books to be kept for that purpose. The Secretary shall be responsible for giving
and serving of all notices of the Trust. The Secretary shall have custody of any
seal of the Trust. The Secretary shall be responsible for the records of the
Trust, including the Share register and such other books and papers as the
Trustees may direct and such books, reports, certificates and other documents
required by law. All of such records and documents shall at all reasonable times
be kept open by the Secretary for inspection by any Trustee for any proper Trust
purpose. The Secretary shall perform all acts incidental to the office of
Secretary, subject to the supervision of the Trustees, and shall perform such
additional duties as the Trustees may from time to time designate.
Any Assistant Secretary may perform such duties of the Secretary as the
Trustees or the Secretary may assign, and, in the absence of the Secretary, may
perform all the duties of the Secretary.
Section 9. Subordinate Officers. The Trustees may appoint from time to
time such other officers and agents as they may deem advisable, each of whom
shall have such title, hold office for such period, have such authority and
perform such duties as the Trustees may determine. The Trustees may delegate
from time to time to one or more officers or committees of Trustees the power to
appoint any such subordinate officers or agents and to prescribe their
respective rights, terms of office, authorities and duties. Any officer or agent
appointed in accordance with the provisions of this Section 9 may be removed,
either with or without cause, by any officer upon whom such power of removal
shall have been conferred by the Trustees.
Section 10. Compensation of Officers. Each officer may receive such
compensation from the Trust for services and reimbursement for expenses as may
be fixed from time to time by the Trustees.
Section 11. Surety Bond. The Trustees may require any officer or agent
of the Trust to execute a bond (including, without limitation, any bond required
by the Investment Company Act of 1940 and the rules and regulations of the
Securities and Exchange Commission) to the Trust in such sum and with such
surety or sureties as the Trustees may determine, conditioned upon the faithful
performance of his or her duties to the Trust, including responsibility for
negligence and for the accounting of any of the Trust's property, funds or
securities that may come into his or her hands.
ARTICLE V
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meetings. There shall be no annual Shareholders'
meetings except as required by law or as hereinafter provided.
Section 2. Special Meetings. Special meetings of Shareholders of the
Trust or of any Series or Class shall be called by the President or Secretary
whenever ordered by the Trustees, and shall be held at such time and place as
may be stated in the notice of the meeting.
Special meetings of the Shareholders of the Trust or of any Series or
Class shall be called by the Secretary upon the written request of Shareholders
owning at least ten percent (10%) of the Outstanding Shares entitled to vote at
such meeting, provided that (1) such request shall state the purposes of such
meeting and the matters proposed to be acted on, and (2) the Shareholders
requesting such meeting shall have paid to the Trust the reasonably estimated
cost of preparing and mailing the notice thereof, which the Secretary shall
determine and specify to such Shareholders.
If the Secretary fails for more than thirty days to call a special
meeting, the Trustees or the Shareholders requesting such a meeting may, in the
name of the Secretary, call the meeting by giving the required notice. If the
meeting is a meeting of Shareholders of any Series or Class, but not a meeting
of all Shareholders of the Trust, then only a special meeting of Shareholders of
such Series or Class need be called and, in such case, only Shareholders of such
Series or Class shall be entitled to notice of and to vote at such meeting.
Section 3. Notice of Meetings. Except as provided in Section 2 of this
Article, the Secretary shall cause written notice of the place, date and time,
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Notice shall be given as determined by the Trustees at least
ten (10) and not more than sixty (60) days before the date of the meeting. The
written notice of any meeting may be delivered or mailed, postage prepaid, to
each Shareholder entitled to vote at such meeting. If mailed, notice shall be
deemed to be given when deposited in the United States mail directed to the
Shareholder at his or her address as it appears on the records of the Trust.
Notice of any Shareholders' meeting need not be given to any Shareholder if a
written waiver of notice, executed before, at or after such meeting, is filed
with the record of such meeting, or to any Shareholder who is present at such
meeting in person or by proxy unless the Shareholder is present solely for the
purpose of objecting to the call of the meeting. Notice of adjournment of a
Shareholders' meeting to another time or place need not be given, if such time
and place are announced at the meeting at which the adjournment is taken and the
adjourned meeting is held within a reasonable time after the date set for the
original meeting. At the adjourned meeting the Trust may transact any business
which might have been transacted at the original meeting. If after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to Shareholders of record entitled to vote
at such meeting. Any irregularities in the notice of any meeting or the
nonreceipt of any such notice by any of the Shareholders shall not invalidate
any action otherwise properly taken at any such meeting.
Section 4. Validity of Proxies. Subject to the provisions of the Trust
Instrument, Shareholders entitled to vote may vote either in person or by proxy,
provided that either (1) a written instrument authorizing such proxy to act has
been signed and dated by the Shareholder or by his or her duly authorized
attorney, or (2) the Trustees adopt by resolution an electronic, telephonic,
computerized or other alternative to execution of a written instrument
authorizing the proxy to act, but if a proposal by anyone other than the
officers or Trustees is submitted to a vote of the Shareholders of the Trust or
of any Series, or if there is a proxy contest or proxy solicitation or proposal
in opposition to any proposal by the officers or Trustees, Shares may be voted
only in person or by written proxy. Unless the proxy provides otherwise, it
shall not be valid if executed more than eleven months before the date of the
meeting. All proxies shall be delivered to the Secretary or other person
responsible for recording the proceedings before being voted. A proxy with
respect to Shares held in the name of two or more persons shall be valid if
executed by one of them unless at or prior to exercise of such proxy the Trust
receives a specific written notice to the contrary from any one of them. Unless
otherwise specifically limited by their terms, proxies shall entitle the
Shareholder to vote at any adjournment of a Shareholders meeting. At every
meeting of Shareholders, unless the voting is conducted by inspectors, all
questions concerning the qualifications of voters, the validity of proxies, and
the acceptance or rejection of votes, shall be decided by the chairman of the
meeting. Subject to the provisions of the Trust Instrument or these Bylaws, all
matters concerning the giving, voting or validity of proxies shall be governed
by the General Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware corporation
and the Shareholders were shareholders of a Delaware corporation.
Section 5. Place of Meeting. All special meetings of Shareholders shall
be held at the principal place of business of the Trust or at such other place
as the Trustees may from time to time designate.
Section 6. Action Without a Meeting. Any action to be taken by
Shareholders may be taken without a meeting if a majority (or such other amount
as may be required by law) of the Outstanding Shares entitled to vote on the
matter consent to the action in writing and such written consents are filed with
the records of the Shareholders' meetings. Such written consent shall be treated
for all purposes as a vote at a meeting of the Shareholders held at the
principal place of business of the Trust. If the unanimous written consent of
all Shareholders entitled to vote shall not have been received, the Secretary
shall give prompt notice of the action approved by the Shareholders without a
meeting.
ARTICLE VI
SHARES IN THE TRUST
Section 1. Certificates. No certificates certifying the ownership of
Shares shall be issued. In lieu of issuing certificates of Shares, the Trustees
or the transfer agent or Shareholder servicing agent may either issue receipts
or may keep accounts upon the books of the Trust for record holders of such
Shares. In either case, the record holders shall be deemed, for all purposes, to
be holders of certificates for such Shares as if they accepted such certificates
and shall be held to have expressly consented to the terms thereof.
Section 2. Non-Transferability of Shares. Shares in the Trust shall not
be transferable unless the prospective transferor obtains the prior unanimous
consent of the Shareholders to the transfer. The Trust shall be entitled to
treat the holder of record of any Share or Shares as the absolute owner for all
purposes, and shall not be bound to recognize any legal, equitable or other
claim or interest in such Share or Shares on the part of any other person except
as otherwise expressly provided by law.
ARTICLE VII
CUSTODY OF SECURITIES
Section 1. Employment of a Custodian. The Trust shall at all times
place and maintain all funds, securities and similar investments of the Trust
and of each Series in the custody of a Custodian, including any sub-custodian
for the Custodian (the "Custodian"). The Custodian shall be one or more banks or
trust companies of good standing having an aggregate capital surplus, and
undivided profits of not less than two million dollars ($2,000,000), or such
other financial institutions or other entities as shall be permitted by rule or
order of the Securities and Exchange Commission. The Custodian shall be
appointed from time to time by the Trustees, who shall determine its
remuneration.
Section 2. Termination of Custodian Agreement. Upon termination of the
Custodian Agreement or inability of the Custodian to continue to serve, the
Trustees shall promptly appoint a successor Custodian. If so directed by
resolution of the Trustees or by vote of a majority of Outstanding Shares of the
Trust, the Custodian shall deliver and pay over all property of the Trust or any
Series held by it as specified in such vote.
Section 3. Other Arrangements. The Trust may make such other
arrangements for the custody of its assets (including deposit arrangements)
as may be required by any applicable law, rule or regulation.
ARTICLE VIII
FISCAL YEAR AND ACCOUNTANT
Section 1. Fiscal Year. The fiscal year of the Trust shall be as
determined by the Trustees.
Section 2. Accountant. The Trust shall employ independent certified
public accountants as its accountant ("Accountant") to examine the accounts of
the Trust and to sign and certify financial statements filed by the Trust. The
Accountant's certificates and reports shall be addressed both to the Trustees
and to the Shareholders.
ARTICLE IX
AMENDMENTS
Section 1. General. All Bylaws of the Trust shall be subject to
amendment, alteration or repeal, and new Bylaws may be made by the affirmative
vote of a majority of either: (1) the Outstanding Shares of the Trust entitled
to vote at any meeting; or (2) the Trustees at any meeting. In no event will
Bylaws be adopted that are in conflict with the Trust Instrument, the Delaware
Act, the Investment Company Act of 1940, or applicable securities laws.
ARTICLE X
MISCELLANEOUS
Section 1. Inspection of Books. The Trustees shall from time to time
determine whether and to what extent, and at what times and places, and under
what conditions the accounts and books of the Trust or any Series shall be open
to the inspection of Shareholders. No Shareholder shall have any right to
inspect any account or book or document of the Trust except as conferred by law
or otherwise by the Trustees.
Section 2. Severability. The provisions of these Bylaws are severable.
If the Trustees determine, with the advice of counsel, that any provision hereof
conflicts with the Investment Company Act of 1940, the regulated investment
company or other provisions of the Internal Revenue Code or with other
applicable laws and regulations the conflicting provision shall be deemed never
to have constituted a part of these Bylaws; provided, however, that such
determination shall not affect any of the remaining provisions of these Bylaws
or render invalid or improper any action taken or omitted prior to such
determination. If any provision hereof shall be held invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall attach only to such
provision only in such jurisdiction and shall not affect any other provision of
these Bylaws.
Section 3. Headings. Headings are placed in these Bylaws for
convenience of reference only and in case of any conflict, the text of these
Bylaws rather than the headings shall control.
