<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
<TABLE>
<S> <C>
[ ] Preliminary Proxy Statement [ ] Confidential, for Use of the
Commission Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-12
</TABLE>
THE MARSICO INVESTMENT FUND
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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<PAGE> 2
THE MARSICO INVESTMENT FUND
IMPORTANT NEWS
[MARSICO LOGO]
SEPTEMBER 2000
FOR SHAREHOLDERS OF THE MARSICO FOCUS FUND, THE MARSICO GROWTH & INCOME
FUND, THE MARSICO 21ST CENTURY FUND AND THE MARSICO INTERNATIONAL
OPPORTUNITIES FUND
While we encourage you to read the full text of the enclosed Proxy
Statement, here's a brief overview of some changes affecting the Marsico Focus
Fund, the Marsico Growth & Income Fund, the Marsico 21st Century Fund and the
Marsico International Opportunities Fund (each, a "Fund," and collectively, the
"Funds") which require a shareholder vote.
Q&A: QUESTIONS AND ANSWERS
Q. WHAT IS HAPPENING?
A. Bank of America Corporation, a Delaware corporation, has entered into an
agreement to increase its ownership of Marsico Capital Management, LLC
("MCM"), the Funds' investment manager, to 100% (the "Transaction"). Prior
to the Transaction, Bank of America Corporation owned 50% of MCM through
its ownership of Marsico Management Holdings, LLC. THE TRANSACTION WILL NOT
AFFECT MCM'S DAY-TO-DAY OPERATIONS, ITS INVESTMENT PROCESS, OR ITS
PORTFOLIO MANAGEMENT TEAM. THOMAS F. MARSICO WILL CONTINUE TO SERVE AS
CHIEF EXECUTIVE OFFICER OF MCM AND AS PRESIDENT AND CHIEF INVESTMENT
OFFICER OF THE FUNDS. The Transaction will result in a change of control of
MCM under the federal securities laws. As a result, the current investment
advisory and management agreements between each Fund and MCM will
automatically terminate upon consummation of the Transaction.
In order for MCM to continue to serve as investment manager of each Fund
after the Transaction is complete, it is necessary for each Fund's
shareholders to approve a new investment advisory and management agreement
with MCM. THE NEW INVESTMENT ADVISORY AND MANAGEMENT AGREEMENTS THAT YOU
ARE BEING ASKED TO APPROVE ARE IDENTICAL IN ALL RESPECTS TO THE CURRENT
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENTS. The following pages give you
additional information on Bank of America Corporation, the proposed new
investment advisory and management agreement for each Fund, and the manner
in which the Transaction will affect you as a shareholder. The approval of
the new investment advisory and management agreement for each Fund is an
important matter to be voted upon by you.
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THE FUNDS' BOARD OF TRUSTEES, INCLUDING THOSE TRUSTEES WHO ARE NOT
AFFILIATED WITH THE FUNDS OR MCM, UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR
THIS PROPOSAL.
Q. ARE THE SHAREHOLDERS OF THE MARSICO FOCUS FUND, THE
MARSICO GROWTH & INCOME FUND, THE MARSICO 21ST CENTURY FUND AND THE MARSICO
INTERNATIONAL OPPORTUNITIES FUND APPROVING THE SAME INVESTMENT ADVISORY AND
MANAGEMENT AGREEMENTS?
A. Each of the Funds has a separate investment advisory and management
agreements with MCM. The agreements are the same in all respects.
Shareholders of each Fund are only required to approve the agreement that
affects their Fund.
The attached Proxy Statement has addressed this issue by the dividing the
Proposal into four parts:
- Part (A)--consideration of the Marsico Focus Fund shareholders only;
- Part (B)--consideration of the Marsico Growth & Income Fund shareholders
only;
- Part (C)--consideration of the Marsico 21st Century Fund shareholders
only; and
- Part (D)--consideration of the Marsico International Opportunities Fund
shareholders only.
If you own shares in more than one Fund, you will be asked to approve
each agreement.
Q. HOW WILL THE TRANSACTION AFFECT ME AS A FUND
SHAREHOLDER?
A. Assuming shareholders approve each Fund's new investment advisory and
management agreement, the TRANSACTION WILL NOT RESULT IN ANY CHANGES TO THE
WAY IN WHICH YOUR FUND IS MANAGED. THE TRANSACTION WILL NOT CAUSE ANY
CHANGES TO THE FUNDS' INVESTMENT OBJECTIVES AND POLICIES. THE TRANSACTION
WILL ALSO NOT AFFECT YOUR SHAREHOLDINGS, AND YOU WILL CONTINUE TO OWN THE
SAME NUMBER OF SHARES IN THE SAME FUND OR FUNDS AS YOU DO NOW. THE TERMS OF
THE NEW INVESTMENT ADVISORY AND MANAGEMENT AGREEMENTS, INCLUDING THE
INVESTMENT MANAGEMENT FEE TO BE PAID BY EACH FUND TO MCM, ARE THE SAME
<PAGE> 4
IN ALL RESPECTS AS THE CURRENT INVESTMENT ADVISORY AND MANAGEMENT
AGREEMENTS. IN ADDITION, THE TRANSACTION WILL NOT RESULT IN A CHANGE OF
MCM'S PERSONNEL, INCLUDING ITS PORTFOLIO MANAGEMENT TEAM. THOMAS F. MARSICO
WILL CONTINUE TO SERVE AS CHIEF EXECUTIVE OFFICER OF MCM AND AS PRESIDENT
AND CHIEF INVESTMENT OFFICER OF THE FUNDS. THE TRANSACTION ALSO WILL NOT
AFFECT THE DAY-TO-DAY OPERATIONS OF MCM OR THE INVESTMENT PROCESS IT USES
IN MANAGING THE FUNDS.
Similarly, the Transaction will not affect the Funds' contractual
relationships with their other service providers, including the Funds'
distributor, transfer agent, and custodian. Thus, you should continue to
receive the same high level of service that you have come to expect as a
Fund shareholder.
Q. WHY HAS MCM DECIDED TO ENTER INTO THIS TRANSACTION?
A. As a result of the Transaction, MCM will have access to the distribution
channels of one of the largest banking enterprises in the United States,
while maintaining its current role in providing portfolio management
services to the Funds and its other advisory clients.
Q. WILL THE INVESTMENT MANAGEMENT FEES BE THE SAME?
A. The investment management fees paid by your Fund will remain the same.
Q. HOW DO THE BOARD MEMBERS OF MY FUND RECOMMEND
THAT I VOTE?
A. After careful consideration, the Funds' Board of Trustees, including those
trustees who are not affiliated with the Funds or MCM, unanimously
recommends that you vote in favor of the proposal on the enclosed proxy
card.
Q. HOW DO I GET MORE INFORMATION?
A. For more information, please call Shareholder Communications Corporation,
the Funds' proxy solicitor, at 1-877-504-7025.
Q. WILL THE FUNDS PAY FOR THE PROXY SOLICITATION AND
LEGAL COSTS ASSOCIATED WITH THIS TRANSACTION?
A. No, MCM will bear these costs.
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(This page has been left blank intentionally.)
<PAGE> 6
Dear Fellow Shareholder:
As explained in the preceding "Question & Answer" statement, Bank of
America Corporation, a Delaware corporation, on behalf of itself and its wholly
owned subsidiaries, has entered into an agreement to increase its ownership of
Marsico Capital Management, LLC ("MCM"), the Funds' investment manager, to 100%
(the "Transaction"). Prior to the Transaction, Bank of America Corporation owned
50% of MCM through its ownership of Marsico Management Holdings, LLC. As a
result of the Transaction, it is necessary for the shareholders of the Marsico
Focus Fund, the Marsico Growth & Income Fund, the Marsico 21st Century Fund, and
the Marsico International Opportunities Fund (each, a "Fund," and collectively,
the "Funds") to approve new investment advisory and management agreements with
MCM.
The following important facts about the Transaction are outlined below and
apply to each of the Funds:
- The new investment advisory and management agreements that you are being
asked to approve are identical in all respects to the Funds' current
investment advisory and management agreements.
- The Transaction will not affect MCM's day-to-day operations, its
investment process, or its portfolio management team. Thomas F. Marsico
will continue to serve as Chief Executive Officer of MCM and as President
and Chief Investment Officer of the Funds.
- The Transaction will have no effect on the number of shares you own or
the value of those shares.
- The advisory fees and expenses paid by the Funds will not increase as a
result of the Transaction.
- The investment objectives of the Funds will remain the same.
- The Funds' contractual relationships with their other service providers,
including the Funds' distributor, transfer agent, and custodian, will not
be affected.
- The Funds' Board of Trustees, including those trustees who are not
affiliated with MCM or the Funds, have carefully reviewed the
Transaction, and have concluded that the Transaction should cause no
reduction in the quality of services provided to the Funds.
THE FUNDS' BOARD OF TRUSTEES BELIEVES THAT THE PROPOSAL SET FORTH IN THE
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS FOR THE FUNDS IS IMPORTANT AND
RECOMMENDS THAT YOU READ THE ENCLOSED MATERIALS CAREFULLY AND THEN VOTE FOR SUCH
PROPOSAL.
<PAGE> 7
Since each of the Funds for which MCM acts as investment manager are
required to obtain shareholder approval, if you own shares of more than one
Fund, you should ensure that you respond to all parts of the proxy card
applicable to your Fund. Please sign and return the proxy card.
Your vote is important. PLEASE TAKE A MOMENT NOW TO SIGN AND RETURN YOUR
PROXY CARD IN THE ENCLOSED POSTAGE-PAID RETURN ENVELOPE. YOU ALSO MAY VOTE
TELEPHONICALLY BY CALLING THE TOLL-FREE NUMBER ON YOUR PROXY CARD, OR
ELECTRONICALLY BY VOTING AT OUR WEBSITE AT EITHER WWW.MARSICOFUNDS.COM OR
WWW.PROXYVOTE.COM. If we do not receive your executed proxy after a reasonable
amount of time you may receive a telephone call from our proxy solicitor,
Shareholder Communications Corporation, reminding you to vote your shares.
Thank you for your cooperation and continued support.
Respectfully,
/s/ THOMAS F. MARSICO
Thomas F. Marsico
President
The Marsico Investment Fund
SHAREHOLDERS ARE URGED TO PROMPTLY COMPLETE THEIR PROXY BY MAIL, BY PHONE OR
OVER THE INTERNET, SO AS TO ENSURE A QUORUM AT THE MEETING. YOUR VOTE IS
IMPORTANT REGARDLESS OF THE NUMBER OF SHARES YOU OWN.
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<PAGE> 8
THE MARSICO INVESTMENT FUND
MARSICO FOCUS FUND
MARSICO GROWTH & INCOME FUND
MARSICO 21ST CENTURY FUND
MARSICO INTERNATIONAL OPPORTUNITIES FUND
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NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
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To the Shareholders of
Marsico Focus Fund
Marsico Growth & Income Fund
Marsico 21st Century Fund
Marsico International Opportunities Fund:
Please take notice that a Special Meeting of Shareholders (the "Meeting")
of the Marsico Focus Fund ("Focus Fund"), the Marsico Growth & Income Fund
("Growth & Income Fund"), the Marsico 21st Century Fund ("21st Century Fund")
and the Marsico International Opportunities Fund ("International Fund") (each, a
"Fund," and collectively, the "Funds") will be held at Hotel Monaco Denver, 1717
Champa Street, Denver, Colorado 80202, on November 9, 2000, at 10:00 a.m.,
Mountain Time. At the Meeting:
(1) (a) The shareholders of the Focus Fund will be asked to approve a new
investment advisory and management agreement between The Marsico
Investment Fund, on behalf of the Focus Fund, and Marsico Capital
Management, LLC ("MCM").
(b) The shareholders of the Growth & Income Fund will be asked to
approve a new investment advisory and management agreement between The
Marsico Investment Fund, on behalf of the Growth & Income Fund, and
MCM.
(c) The shareholders of the 21st Century Fund will be asked to approve
a new investment advisory and management agreement between The Marsico
Investment Fund, on behalf of the 21st Century Fund, and MCM.
(d) The shareholders of the International Fund will be asked to approve
a new investment advisory and management agreement between The Marsico
Investment Fund, on behalf of the International Fund, and MCM.
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<PAGE> 9
(2) In addition, shareholders will be asked to transact such other business
as may properly come before the Special Meeting of Shareholders or any
adjournments thereof.
Holders of record of shares of beneficial interest of the Fund at the close
of business on August 14, 2000 are entitled to vote at the Meeting and at any
adjournments thereof.
In the event that the necessary quorum to transact business or the vote
required to approve or reject the proposal is not obtained at the Meeting, the
persons named on the proxy card as proxies may propose one or more adjournments
of the Meeting, in accordance with applicable law, to permit further
solicitation of proxies. Any such adjournment will require the affirmative vote
of the holders of a majority of the Fund's shares present in person or by proxy
at the Meeting. The persons named as proxies will vote in favor of such
adjournment those proxies which they are entitled to vote in favor of the
proposal and will vote against any such adjournment those proxies to be voted
against the proposal.
By order of the Board of Trustees,
/s/ BARBARA M. JAPHA
Barbara M. Japha
Secretary
September 7, 2000
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IMPORTANT--YOUR VOTE IS IMPORTANT AND, AS A SHAREHOLDER, YOU ARE ASKED TO BE AT
THE MEETING EITHER IN PERSON OR BY PROXY. IF YOU ARE UNABLE TO ATTEND THE
MEETING IN PERSON, WE URGE YOU TO VOTE BY PROXY. YOU CAN DO THIS IN ONE OF THREE
WAYS: BY
(1) COMPLETING, SIGNING, DATING, AND PROMPTLY RETURNING THE ENCLOSED PROXY
CARD USING THE ENCLOSED POSTAGE PREPAID ENVELOPE;
(2) CALLING THE TOLL-FREE TELEPHONE NUMBER ON YOUR PROXY CARD; OR
(3) VOTING AT EITHER OF THE FOLLOWING WEBSITES:
WWW.MARSICOFUNDS.COM OR
WWW.PROXYVOTE.COM.
YOUR PROMPT VOTING BY PROXY MAY SAVE THE NECESSITY AND EXPENSE OF FURTHER
SOLICITATIONS TO ENSURE A QUORUM AT THE MEETING. VOTING BY PROXY WILL NOT
PREVENT YOU FROM PERSONALLY VOTING YOUR SHARES AT THE MEETING AND YOU MAY REVOKE
YOUR PROXY BY ADVISING THE SECRETARY OF THE MARSICO INVESTMENT FUND IN WRITING
(BY SUBSEQUENT PROXY OR THROUGH THE WEBSITE) OR BY TELEPHONE OF SUCH REVOCATION
AT ANY TIME BEFORE THE MEETING.
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(This page has been left blank intentionally.)
<PAGE> 12
THE MARSICO INVESTMENT FUND
Marsico Focus Fund
Marsico Growth & Income Fund
Marsico 21st Century Fund
Marsico International Opportunities Fund
P.O. Box 3210, Milwaukee WI 53201
--------------------------
PROXY STATEMENT
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GENERAL
This Proxy Statement is furnished in connection with the solicitation of
proxies by the Board of Trustees (the "Board") of The Marsico Investment Fund
(the "Trust"), on behalf of its four portfolios, the Marsico Focus Fund ("Focus
Fund"), the Marsico Growth & Income Fund ("Growth & Income Fund"), the Marsico
21st Century Fund ("21st Century Fund") and the Marsico International
Opportunities Fund ("International Fund") (each, a "Fund," and collectively, the
"Funds"). This proxy statement is for use at the Special Meeting of Shareholders
(the "Meeting"), to be held at Hotel Monaco Denver, 1717 Champa Street, Denver,
Colorado 80202, on November 9, 2000 at 10:00 a.m., Mountain Time, and at any and
all adjournments thereof.
This Proxy Statement, the Notice of Special Meeting, the Question & Answer
Statement, and the proxy card are first being mailed to shareholders on or about
September 7, 2000 or as soon as practicable thereafter. Any shareholder giving a
proxy has the power to revoke it in person at the Meeting, by mail (addressed to
the Secretary at the principal office of the Fund, P.O. Box 3210, Milwaukee, WI
53201), by visiting the web site at either www.marsicofunds.com or
www.proxyvote.com, by calling the toll-free telephone number on your proxy card,
by executing a superseding proxy or by submitting a notice of revocation to the
Fund. All properly executed proxies received in time for the Meeting will be
voted as specified in the proxy or, if no specification is made, in favor of the
proposal referred to in the Proxy Statement.
The presence at any shareholders meeting, in person or by proxy, of the
holders of one-third of the outstanding shares entitled to be cast shall be
necessary and sufficient to constitute a quorum for the transaction of business.
In the event that the necessary quorum to transact business or the vote required
to approve the proposal is not obtained at the Meeting, the persons named as
proxies on the proxy card may propose one or more adjournments of the Meeting,
in accordance with applicable law, to permit further solicitation of proxies.
Any such adjournment will
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require the affirmative vote of the holders of a majority of the Fund's shares
present in person or by proxy at the Meeting. The persons named as proxies will
vote in favor of such adjournment those proxies which they are entitled to vote
in favor of the proposal and will vote against any such adjournment those
proxies to be voted against the proposal. For purposes of determining the
presence of a quorum for transacting business at the Meeting, abstentions and
broker "non-votes" will be treated as shares that are present but which have not
been voted. Broker non-votes are proxies received by the Funds from brokers or
nominees when the broker or nominee has neither received instructions from the
beneficial owner or other persons entitled to vote nor has discretionary power
to vote on a particular matter. Accordingly, shareholders are urged to forward
their voting instructions promptly. The Proposal is divided into four parts:
Part (a) asks shareholders of the Focus Fund to approve the new investment
advisory and management agreement between Marsico Capital Management, LLC
("MCM") and the Trust, on behalf of the Focus Fund.
Part (b) asks shareholders of the Growth & Income Fund to approve the new
investment advisory and management agreement between MCM and the Trust, on
behalf of the Growth & Income Fund.
Part (c) asks shareholders of the 21st Century Fund to approve the new
investment advisory and management agreement between MCM and the Trust, on
behalf of the 21st Century Fund.
Part (d) asks shareholders of the International Fund to approve the new
investment advisory and management agreement between MCM and the Trust, on
behalf of the International Fund.
Each part of the Proposal requires the affirmative vote of a "majority of
the outstanding shares" of the Fund identified in that part of the Proposal. The
term "majority of outstanding shares," as defined by the Investment Company Act
of 1940, as amended (the "1940 Act") and as used in this Proxy Statement with
respect to each Fund, means: the affirmative vote of the lesser of (1) 67% of
the voting securities of the Fund present at the Meeting if more than 50% of the
outstanding shares of the Fund are present in person or by proxy or (2) more
than 50% of the outstanding shares of the Fund.
Abstentions will have the effect of a "no" vote for the Proposal. Broker
non-votes will have the effect of a "no" vote for the Proposal where a vote is
determined on the basis of obtaining the affirmative vote of more than 50% of
the outstanding shares of the Fund identified in the Proposal. Broker non-votes
will not constitute "yes" or "no" votes and will be disregarded in determining
the voting securities "present" if such vote is determined on the basis of the
affirmative vote of 67% of the voting securities of each Fund present at the
Meeting.
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Holders of record of the shares of the Focus Fund, the Growth & Income
Fund, the 21st Century Fund and the International Fund at the close of business
on August 14, 2000 (the "Record Date"), will be entitled to one vote per share
for that Fund on all business to be conducted at the Meeting. The number of
shares outstanding as of July 31, 2000 was 132,369,408.760 for the Focus Fund,
49,660,968.703 for the Growth & Income Fund, 13,253,178.781 for the 21st Century
Fund and 1,328,846.469 for the International Fund.
The table below sets forth the number of shares of each Fund owned directly
or beneficially by the Trustees and Executive Officers of the Trust as of July
31, 2000, and the percentage of each Fund that this amount represents. (Trustees
who do not own any shares have been omitted from the table.)
<TABLE>
<CAPTION>
GROWTH &
INCOME 21ST CENTURY INTERNATIONAL
NAME OF TRUSTEES AND FOCUS FUND FUND FUND FUND
EXECUTIVE OFFICERS SHARES/% SHARES/% SHARES/% SHARES/%
-------------------- ----------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Thomas F. Marsico............ 703,811/.53% 445,933/.90% 237,868/1.79% 250,000/18.86%
Barbara M. Japha............. 55,149/.04% 17,635/.04% 20,940/ .16% 1,200/ .09%
J. Jeffrey Riggs(1).......... 20,937/.02% 3,846/.01% 9,283/ .07% --
Rono Dutta(1)................ 1,350/ 0% 198/ 0% 352/ 0% --
Theodore S. Halaby........... 120,452/.09% -- -- --
Walter A. Koelbel, Jr.(1).... 8,262/.01% 18,806/.04% 151,791/1.14% 49,332/ 3.72%
Larry A. Mizel(1)............ 137,831/.10% 32,587/.07% 502,175/3.79% 60,000/ 4.53%
Federico Pena................ 4,663/ 0% -- -- --
Michael D. Rierson(1)........ 7,124/.01% 503/ 0% 1,782/ .01% --
</TABLE>
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(1) Participant in the Marsico Deferred Fee Plan which became effective February
1, 2000. In the aggregate, there are 1,091.814, 1,154.456 and 2,046.01
shares of the Focus Fund, Growth & Income Fund and 21st Century Fund,
respectively representing deferred trustees' fees held in accordance with
the Plan. Each participant in the Plan disclaims beneficial ownership of
such shares.
As of July 31, 2000 Charles Schwab & Co. beneficially owned 30.60%, 30.62%,
21.39% and 10.88% of the Focus Fund, the Growth & Income Fund, the 21st Century
Fund and the International Fund, respectively and Fidelity Investments
beneficially owned 25.79%, 15.84%, 15.20% and 5.70% of the Focus Fund, the
Growth & Income Fund, the 21st Century Fund and the International Fund,
respectively.
THE FUNDS PROVIDE PERIODIC REPORTS TO ALL OF THEIR SHAREHOLDERS WHICH
HIGHLIGHT RELEVANT INFORMATION INCLUDING INVESTMENT RESULTS AND A REVIEW OF
PORTFOLIO CHANGES. YOU MAY RECEIVE AN ADDITIONAL COPY OF THE ANNUAL REPORT OF
THE FUNDS FOR THE PERIOD ENDED SEPTEMBER 30, 1999 AND THE SEMI-ANNUAL REPORT FOR
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THE SIX-MONTH PERIOD ENDED MARCH 31, 2000, WITHOUT CHARGE, BY CALLING
1-888-860-8686 OR WRITING THE FUNDS, P.O. BOX 3210, MILWAUKEE, WI 53201-3210, OR
BY ACCESSING THE FUND'S WEB-SITE AT WWW.MARSICOFUNDS.COM.
PROPOSAL (PARTS a--d):
APPROVAL OF NEW INVESTMENT ADVISORY AND
MANAGEMENT AGREEMENT FOR EACH FUND
INTRODUCTION
MCM acts as the investment adviser to and manager for the Focus Fund and
the Growth & Income Fund pursuant to Investment Advisory and Management
Agreements dated December 22, 1997 and last approved on November 11, 1999, and
for the 21st Century Fund and the International Opportunities Fund pursuant to
Investment Advisory Agreements dated January 27, 2000 and June 30, 2000
respectively. The terms and conditions of each Agreement are exactly the same
and each Agreement will be referred to as the "Current Investment Advisory and
Management Agreement." In voting "For" or "Against" the Proposal, however,
shareholders of each Fund must vote separately. As such, Focus Fund shareholders
will cast votes with respect to Part (A) of the Proposal, Growth & Income Fund
shareholders will cast votes with respect to Part (B) of the Proposal, 21st
Century Fund shareholders will cast votes with respect to Part (C) of the
Proposal and International Fund shareholders will cast votes with respect to
Part (D) of the Proposal.
On June 15, 2000, the general and limited partners of TFM Holdings, LLLP
("TFM Holdings") agreed to sell their interests in TFM Holdings to Bank of
America Corporation or its subsidiaries (collectively, "Bank of America"). TFM
Holdings currently owns 50% of MCM. After the acquisition, Bank of America,
either individually or through its subsidiaries, will own 100% of MCM. The
general partner of TFM Holdings is TFM Managers, Inc., a company wholly owned by
Thomas F. Marsico. The limited partners of TFM Holdings are Thomas F. Marsico,
certain other employees of MCM and trusts for the benefit of members of Mr.
Marsico's family. The general and limited partners are collectively referred to
as the "TFM Partners." This transaction is referred to herein as the
"Transaction." THE TRANSACTION WILL NOT AFFECT MCM'S DAY-TO-DAY OPERATIONS, ITS
INVESTMENT PROCESS, OR ITS PORTFOLIO MANAGEMENT TEAM. THOMAS F. MARSICO WILL
CONTINUE TO SERVE AS CHIEF EXECUTIVE OFFICER OF MCM AND AS PRESIDENT AND CHIEF
INVESTMENT OFFICER OF THE FUNDS. THE INVESTMENT OBJECTIVES OF THE FUNDS WILL
REMAIN THE SAME. THE TRANSACTION WILL HAVE NO EFFECT ON THE NUMBER OF SHARES YOU
OWN OR THE VALUE OF THOSE SHARES. THE ADVISORY FEES AND EXPENSES PAID BY THE
FUNDS WILL NOT INCREASE AS A RESULT OF THIS TRANSACTION.
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<PAGE> 16
Consummation of the Transaction would constitute an "assignment," as that
term is defined in the 1940 Act, of each Fund's Current Investment Advisory and
Management Agreement with MCM. As required by the 1940 Act, each Current
Investment Advisory and Management Agreement provides for its automatic
termination in the event of its assignment. In anticipation of the Transaction,
Shareholders of each Fund must approve a new investment advisory and management
agreement (the "New Investment Advisory and Management Agreement") between each
Fund and MCM. A copy of the form of the New Investment Advisory and Management
Agreement is attached hereto as Exhibit A for the Marsico Focus Fund, Exhibit B
for the Marsico Growth & Income Fund, Exhibit C for the Marsico 21st Century
Fund and Exhibit D for the Marsico International Opportunities Fund. THE NEW
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT FOR EACH FUND IS THE SAME IN EVERY
MATERIAL RESPECT AS THAT FUND'S CURRENT INVESTMENT ADVISORY AND MANAGEMENT
AGREEMENT.
The material terms of the Current and the New Investment Advisory and
Management Agreements are described under "Description of the Current and New
Investment Advisory and Management Agreements" below.
BOARD OF TRUSTEES RECOMMENDATION
On August 17, 2000, the Board of Trustees of the Funds, including the
trustees who are not TFM Partners or "interested persons" (as defined under the
1940 Act) of any such TFM Partners ("Non-interested Trustees"), voted to approve
each New Investment Advisory and Management Agreement and to recommend their
approval to shareholders.
For information about the Board's deliberations and the reasons for its
recommendation, please see "Board of Trustees Evaluation" below.
THE BOARD OF THE TRUST RECOMMENDS THAT SHAREHOLDERS OF EACH FUND VOTE IN
FAVOR OF THE APPROVAL OF THE NEW INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
APPLICABLE TO THEIR FUND.
BOARD OF TRUSTEES EVALUATION
At an in-person meeting of the Board held on May 23, 2000, Mr. Marsico
described the proposed transaction to the Board and the rationale and benefits
thereof.
At a second in-person meeting of the Board held on August 17, 2000, the
Board was provided with information concerning the New Investment Advisory and
Management Agreements and was informed of the standards it should apply in
determining whether to approve the Agreements. The information provided by MCM
to the Board included a description of the Transaction and a discussion of how
the Transaction would affect MCM's ability to perform its duties as set forth
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<PAGE> 17
in the New Investment Advisory and Management Agreements. The Board was also
provided information comparing the fees to be charged under the New Investment
Advisory and Management Agreements with those paid by comparable funds.
The Board, including the Non-Interested Trustees, considered all of the
information presented at the August 17th meeting concerning the terms of the
Transaction and the effect the Transaction would likely have on MCM's duties to
the Funds under the New Investment Advisory and Management Agreements.
In the course of these discussions, MCM advised the Non-Interested Trustees
that it did not expect that the Transaction would have a material effect on the
operations of the Funds or their shareholders. MCM also noted that the
Transaction does not contemplate any changes in the operations of the Funds. MCM
pointed out that Thomas F. Marsico will continue to serve as Chief Executive
Officer of MCM and as President and Chief Investment Officer of the Funds and
that MCM will continue to provide the high quality of service it has provided in
the past. MCM emphasized that the Transaction, if consummated, would provide MCM
with the distribution channel of one of the largest banking enterprises in the
United States.
During the course of their deliberations, the Non-Interested Trustees
considered the information provided by MCM. The Board also considered a variety
of other factors, including the effect that the Transaction may have on MCM and
its ability to perform its duties under the New Investment Advisory and
Management Agreements; the nature, quality and extent of the services furnished
by MCM to the Funds; the investment record of MCM in managing the Funds;
comparative data as to investment performance, advisory fees and other fees,
including expense ratios; possible benefits to MCM from serving as the
investment adviser to the Funds; the financial resources of MCM; and the
continuance of appropriate incentives to assure that MCM will continue to
furnish high quality services to the Funds.
In addition to the foregoing factors, the Non-Interested Trustees gave
careful consideration to the likely impact of the Transaction on the MCM
organization. In this regard, the Non-Interested Trustees considered, among
other things, the structure of the Transaction which affords MCM executives
substantial autonomy over MCM's operations; and information regarding the
financial resources and business reputation of Bank of America.
Based on the foregoing, the Non-Interested Trustees concluded that the
Transaction should cause no reduction in the quality of services provided to the
Funds. Thus, the Trustees of the Funds, including the Non-Interested Trustees,
unanimously approved the New Investment Advisory and Management Agreements.
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<PAGE> 18
The Board was advised that MCM intends to rely on Section 15(f) of the 1940
Act, which provides a non-exclusive safe harbor for an investment adviser to an
investment company or any of the investment adviser's affiliated persons (as
defined under the 1940 Act) to receive any amount or benefit in connection with
a change in control of the investment adviser so long as two conditions are met.
First, for a period of three years after the transaction, at least 75% of the
board members of the investment company must not be "interested persons" of the
investment company's investment adviser or its predecessor adviser. On or prior
to the consummation of the Transaction, the Board would be in compliance with
this provision of Section 15(f). Second, an "unfair burden" must not be imposed
upon the investment company as a result of such transaction or any express or
implied terms, conditions or understandings applicable thereto. The term "unfair
burden" is defined in Section 15(f) to include any arrangement during the two
year period after the transaction whereby the investment adviser, or any
interested person of any such adviser, receives or is entitled to receive any
compensation, directly or indirectly, from the investment company or its
shareholders (other than fees for bona fide investment advisory or other
services) or from any person in connection with the purchase or sale of
securities or other property to, from or on behalf of the investment company
(other than bona fide ordinary compensation as principal underwriter for such
investment company). No such compensation agreements are contemplated in
connection with the Transaction.
MCM has undertaken to pay the costs of preparing and distributing proxy
materials to, and of holding the Meeting of, the Funds' shareholders as well as
other fees and expenses in connection with the Transaction, including the fees
and expenses of legal counsel to the Funds.
INFORMATION CONCERNING THE TRANSACTION AND BANK OF AMERICA CORPORATION
Under the agreement with Bank of America, Bank of America will pay the TFM
Partners $950 million to acquire complete ownership of TFM Holdings. Upon the
closing of the Transaction, MCM will become a wholly-owned subsidiary of Bank of
America by virtue of Bank of America's ownership of TFM Holdings.
The Transaction is subject to a number of conditions, including approval by
the Funds' shareholders of the New Investment Advisory and Management Agreements
with MCM. In addition, certain regulatory approvals may need to be obtained
prior to the consummation of the Transaction.
The information set forth above concerning the Transaction has been
provided to the Funds by MCM, and the information set forth below concerning
Bank of America has been provided to the Funds by Bank of America.
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<PAGE> 19
Bank of America Corporation, a Delaware corporation, is a bank holding
company and a financial holding company headquartered in Charlotte, North
Carolina. Bank of America Corporation provides a diversified range of banking
and nonbanking services and products both domestically and internationally
through three major business segments: Consumer and Commercial Banking, Asset
Management and Global Corporate and Investment Banking. As of June 30, 2000,
Bank of America had $680 billion in assets and approximately 150,850 full-time
equivalent employees.
DESCRIPTION OF THE CURRENT AND NEW INVESTMENT ADVISORY AND MANAGEMENT AGREEMENTS
The Current and New Investment Advisory and Management Agreements are
identical in all respects. Both Agreements provide that, subject to the
supervision of the Funds' Board of Trustees, MCM will provide the Funds with
continuing investment management services. MCM, as the investment adviser,
manages the investment operations of the Funds and the composition of each
Fund's portfolio, including the purchase, retention and disposition thereof, in
accordance with each Fund's investment objectives and policies. In so doing, MCM
agrees to provide supervision of the Funds' investments and to determine from
time to time what investments or securities will be purchased, retained, sold or
loaned by each Fund, and what portion of the assets will be invested or held
uninvested in cash; act in conformity with the Funds' Trust Instrument, By-Laws
and Registration Statement and with the instructions and directions of the Board
of the Funds; conform and comply with the requirements of the 1940 Act and all
other applicable federal and state laws and regulations; maintain all books and
records required to be maintained under the 1940 Act; render to the Board such
periodic and special reports that the Board may reasonably request; and provide
to the custodian of the Funds on each business day information relating to all
transactions concerning the Funds' assets.
Further, MCM determines the securities to be purchased or sold by the Funds
and places orders pursuant to its determinations with or through such persons,
brokers or dealers in conformity with the brokerage policy described in the
Funds' Registration Statement and Prospectus or as the Board may direct from
time to time. In providing the Funds with investment supervision, MCM agrees to
give primary consideration to securing the most favorable price and efficient
execution. Consistent with such policy, MCM may consider the financial
responsibility, research and investment information and other services provided
by brokers or dealers who may effect or be a party to any such transaction. In
addition, MCM is authorized to aggregate securities to be sold or purchased in
order to obtain the most favorable price or lower brokerage commissions and
efficient execution.
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<PAGE> 20
Under each Agreement, MCM agrees to pay the salaries and expenses of all of
its personnel and all expenses incurred by it arising out of its duties under
such agreement. In return for the services provided by MCM, as the investment
adviser to the Funds, and the expenses it assumes under the Current Investment
Advisory and Management Agreements, each Fund pays MCM a fee equal to 0.85% per
year of the Fund's average daily net assets. By separate agreement ("Expense
Agreement"), which has been approved by the Board of Trustees, MCM has
voluntarily agreed to waive a portion of its advisory fee or reimburse the
Funds' other operating expenses so that total expenses paid by the Focus Fund,
the Growth & Income Fund, the 21st Century Fund and the International Fund do
not exceed 1.60%, 1.50%, 1.50% and 1.60% of their respective average daily net
assets. The Expense Agreement remains in effect until June 30, 2001, unless it
is terminated before then by the Trust.
During the fiscal year ended September 30, 1999, the fees paid to MCM under
the Current Investment Advisory and Management Agreements amounted to
$14,485,811 from the Focus Fund, and $4,300,548 from the Growth & Income Fund
(net of the 1999 reimbursement of the 1998 waived fees). The 21st Century and
the International Fund commenced operations on February 1, 2000 and June 30,
2000 respectively.
To the extent that the total operating expenses accrued by a Fund during a
month are less than the expense limitation set forth above, the Expense
Agreement provides that each Fund will reimburse MCM for any waivers of its
advisory fee and any payments by MCM of the Fund's operating expenses. This
agreement continues in effect until June 30, 2001.
Under each Agreement, MCM is permitted to provide investment advisory
services to other clients.
Each Agreement may be terminated at any time, without payment of penalty,
on 60 days' written notice by the Board or by vote of holders of a majority of
the outstanding voting securities of each Fund, or by MCM upon 90 days' written
notice. Each Agreement automatically terminates in the event of its assignment
(as defined in the 1940 Act).
Each Agreement provides that MCM is not liable for any error of judgment or
any loss suffered by the Funds, in connection with matters to which the
Agreements relate, except a loss resulting from willful misfeasance, bad faith
or gross negligence on the part of MCM in the performance of its duties or from
reckless disregard by MCM of its obligations and duties under the Agreements.
MCM has acted as the investment manager for the Funds since the Focus Fund
and Growth Income Fund commenced operations on December 31, 1997 and since the
21st Century Fund and the International Fund each commenced operations on
February 1, 2000 and June 30, 2000 respectively. The Current
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<PAGE> 21
Investment Advisory and Management Agreements for the Focus Fund and the Growth
& Income Fund are dated December 22, 1997 and were initially approved by the
Board of Trustees at an in-person meeting held on December 3, 1997. These
agreements were last approved on November 11, 1999. They continue in effect
until December 31, 2000. The Current Investment Advisory and Management
Agreement for the 21st Century Fund is dated January 27, 2000 and was initially
approved by the Board of Trustees at an in-person meeting held on January 11,
2000. It continues in effect until January 27, 2002. The Current Investment
Advisory and Management Agreement for the International Fund is dated June 30,
2000 and was initially approved by the Board of Trustees at an in-person meeting
held on May 23, 2000. It continues in effect until June 30, 2002.
While the New Investment Advisory and Management Agreements, as a technical
matter, would not be required to be renewed again for two years following their
effectiveness, MCM and the Board have agreed that the New Investment Advisory
and Management Agreements shall continue for one year following their
effectiveness, and shall continue from year-to-year thereafter, provided that it
is specifically approved at least annually by (i) the vote of a majority of the
Board of Trustees; or (ii) a vote of a "majority" (as defined by the 1940 Act)
of each Fund's outstanding voting securities, provided that in each instance the
continuance is also approved by a majority of the Board who are not "interested
persons" of the Funds or MCM.
In the event the shareholders of the Funds do not approve the New
Investment Advisory and Management Agreements, Bank of America may terminate the
Transaction and the Current Investment Advisory and Management Agreements will
remain in full force and effect.
INVESTMENT MANAGER
MCM was established in September 1997 by Thomas F. Marsico and TFM
Holdings. It is a Delaware limited liability company. The principal source of
MCM's income is professional fees received from providing continuing investment
advice. MCM provides investment advice to registered mutual funds that are
distributed to retail investors as well as mutual funds that serve as funding
vehicles for variable life insurance policies and variable annuity contracts.
MCM also provides investment advice to institutions and individuals and to
private funds. Prior to forming MCM, Mr. Marsico served as the Portfolio Manager
of the Janus Twenty Fund from January 31, 1988 through August 11, 1997 and
served in the same capacity for the Janus Growth and Income Fund from May 31,
1991 (that fund's inception) through August 11, 1997.
The Board of Directors of MCM is presently comprised of Thomas F. Marsico,
the Chairman and Chief Executive Officer of MCM; Barbara M. Japha, the President
of MCM; Christopher J. Marsico, MCM's Chief Operating Officer,
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<PAGE> 22
Robert H. Gordon, Frank L. Gentry and Owen G. Shell. Mr. Marsico and Ms. Japha
also serve as officers to the Funds and Mr. Marsico serves as a Trustee to the
Funds.
The outstanding interests of MCM are held of record by TFM Holdings and
Bank of America through its ownership of Marsico Management Holdings, LLC.
Exhibit E sets forth the fees and other information regarding certain other
investment companies subadvised by MCM.
ADMINISTRATOR AND DISTRIBUTOR
Sunstone Financial Group, Inc., 207 East Buffalo Street, Suite 400,
Milwaukee, Wisconsin 53202 serves as the Funds' administrator. Sunstone
Distribution Services, LLC serves as the Funds' distributor.
REQUIRED VOTE
Approval of Part (a) of the Proposal requires the affirmative vote of a
"majority of the outstanding voting securities," as defined herein on page 2, of
the Marsico Focus Fund. THE BOARD OF TRUSTEES RECOMMENDS THAT THE SHAREHOLDERS
OF THE MARSICO FOCUS FUND VOTE IN FAVOR OF THIS PROPOSAL.
Approval of Part (b) of the Proposal requires the affirmative vote of a
"majority of the outstanding voting securities," as defined herein on page 2, of
the Marsico Growth & Income Fund. THE BOARD OF TRUSTEES RECOMMENDS THAT THE
SHAREHOLDERS OF THE MARSICO GROWTH & INCOME FUND VOTE IN FAVOR OF THIS PROPOSAL.
Approval of Part (c) of the Proposal requires the affirmative vote of a
"majority of the outstanding voting securities," as defined herein on page 2, of
the Marsico 21st Century Fund. THE BOARD OF TRUSTEES RECOMMENDS THAT THE
SHAREHOLDERS OF THE MARSICO 21ST CENTURY FUND VOTE IN FAVOR OF THIS PROPOSAL.
Approval of Part (d) of the Proposal requires the affirmative vote of a
"majority of the outstanding voting securities," as defined herein on page 2, of
the Marsico International Opportunities Fund. THE BOARD OF TRUSTEES RECOMMENDS
THAT THE SHAREHOLDERS OF THE MARSICO INTERNATIONAL OPPORTUNITIES FUND VOTE IN
FAVOR OF THIS PROPOSAL.
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<PAGE> 23
ADDITIONAL INFORMATION
GENERAL
The cost of preparing, printing and mailing the enclosed proxy,
accompanying notice and Proxy Statement and all other costs incurred in
connection with the solicitation of proxies, including any additional
solicitation made by letter, telephone or telegraph, will be paid by MCM. In
addition to solicitation by mail, certain officers and representatives of the
Fund, officers and employees of MCM and certain financial services firms and
their representatives, who will receive no extra compensation for their
services, may solicit proxies by telephone, telegram, or personally.
Shareholder Communications Corporation ("SCC") has been engaged to assist
in the solicitation of proxies. As the Meeting date approaches, certain
shareholders of the Fund may receive a telephone call from a representative of
SCC if their vote has not yet been received. Authorization to permit SCC to
execute proxies may be obtained by telephonic or electronically transmitted
instructions from shareholders of the Fund. Proxies that are obtained
telephonically will be recorded in accordance with the procedures set forth
below. These procedures have been reasonably designed to ensure that the
identity of the shareholder casting the vote is accurately determined and that
the voting instructions of the shareholder are accurately determined.
In all cases where a telephonic proxy is solicited, the SCC representative
is required to ask for each shareholder's full name, address, social security or
employer identification number, title (if the shareholder is authorized to act
on behalf of an entity, such as a corporation), and the number of shares owned
and to confirm that the shareholder has received the Proxy Statement and card in
the mail. If the information solicited agrees with the information provided to
SCC, the SCC representative has the responsibility to explain the process, read
the proposals listed on the proxy card, and ask for the shareholder's
instructions on such proposals. The SCC representative, although he or she is
permitted to answer questions about the process, is not permitted to recommend
to the shareholder how to vote, other than to read any recommendation set forth
in the Proxy Statement. The SCC representative will record the shareholder's
instructions on the card. Within 72 hours, the shareholder will be sent a letter
or mailgram to confirm his or her vote and asking the shareholder to call SCC
immediately if his or her instructions are not correctly reflected in the
confirmation.
In all cases where a shareholder elects to vote by electronic proxy, the
shareholder may access the Trust's website at either www.marsicofunds.com or
www.proxyvote.com. The shareholder will be prompted to provide his or her full
name, address, social security or employer identification number, title (if the
shareholder is authorized to act on behalf of an entity, such as a corporation),
and
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<PAGE> 24
the number of shares owned and to confirm that the shareholder received the
Proxy Statement and card in the mail. If this information has been correctly
entered, the Shareholder will be provided with an online explanation of the
process and a recitation of the proposals listed on the proxy card. The
Shareholder will then have the opportunity to give his or her instructions on
such proposals. Within 72 hours, the shareholder will be sent a letter or
mailgram to confirm his or her vote and asking the shareholder to call SCC
immediately if his or her instructions are not correctly reflected in the
confirmation.
If the shareholder wishes to participate in the Meeting, but does not wish
to give his or her proxy telephonically or electronically, the shareholder may
still submit the proxy card originally sent with the Proxy Statement or attend
in person. Should the shareholder require additional information regarding the
proxy or a replacement proxy card, they may contact SCC toll-free at
1-877-504-7025. Any proxy given by a shareholder, whether in writing or by
telephone, is revocable.
PROPOSALS OF SHAREHOLDERS
Shareholders wishing to submit proposals to be presented at the next
meeting of shareholders of the Fund should send their written proposals to the
Secretary of the Funds, P.O. Box 3210, Milwaukee, WI 53201 within a reasonable
time before the solicitation of proxies for such meeting.
OTHER MATTERS TO COME BEFORE THE MEETING
The Board of the Funds is not aware of any matters that will be presented
for action at the Meeting other than the matters set forth herein. Should any
other matters requiring a vote of shareholders arise, the proxy in the
accompanying form will confer upon the person or persons entitled to vote the
shares represented by such proxy the discretionary authority to vote the shares
as to any such other matters in accordance with their best judgment in the
interest of the Funds.
PLEASE TAKE A FEW MOMENTS TO COMPLETE YOUR PROXY PROMPTLY. YOU MAY DO SO
EITHER TELEPHONICALLY, ELECTRONICALLY OR BY MAILING THE PROXY CARD IN THE
POSTAGE PAID ENVELOPE PROVIDED.
By order of the Board of Trustees,
/s/ BARBARA J. JAPHA
Barbara M. Japha
Secretary
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(This page has been left blank intentionally.)
<PAGE> 26
EXHIBIT A
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
OF THE MARSICO FOCUS FUND
OF THE MARSICO INVESTMENT FUND
AGREEMENT, made this day of , 2001, between The Marsico
Investment Fund (the "Trust"), on behalf of the Marsico Focus Fund (the "Fund"),
and Marsico Capital Management, LLC ("MCM"), a Delaware limited liability
company.
WHEREAS, the Trust is a Delaware business trust authorized to issue shares
in series and is registered as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and the Fund is
a series of the Trust;
WHEREAS, MCM is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended ("Advisers Act"); and
WHEREAS, the Trust wishes to retain MCM to render investment management
services to the Fund, and MCM is willing to furnish such services to the Fund;
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the Trust and MCM as follows:
1. APPOINTMENT
The Trust hereby appoints MCM to act as investment adviser and
administrator to the Fund for the periods and on the terms set forth herein. MCM
accepts the appointment and agrees to furnish the services set forth herein for
the compensation provided herein.
2. SERVICES AS INVESTMENT ADVISER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) manage the Fund in accordance with the Fund's
investment objectives and policies as stated in the Fund's Prospectus and the
Statement of Additional Information filed with the Securities and Exchange
Commission, as they may be amended from time to time; (b) make investment
decisions for the Fund; (c) place purchase and sale orders on behalf of the
Fund; and (d) employ portfolio managers and securities analysts to provide
research services to the Fund. In providing those services, MCM will provide the
Fund with ongoing research, analysis, advice, and judgments regarding individual
investments, general economic conditions and trends and long-range investment
policy. In addition, MCM will furnish the Fund with whatever statistical
information the
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Fund may reasonably request with respect to the securities that the Fund may
hold or contemplate purchasing.
3. SERVICES AS MANAGER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) assist in supervising and managing all aspects of the
Fund's operations; (b) maintain such books and records of the Fund as may be
required by applicable federal or state law, or supervise, as the case may be,
the maintenance by third parties approved by the Trust, of such books and
records; (c) supply the Fund with office facilities, data processing services,
clerical, accounting and bookkeeping services, internal auditing and internal
legal services, internal executive and administrative services, and stationery
and office supplies; (d) prepare, file, and arrange for the distribution of
proxy materials and periodic reports to the shareholders of the Fund as required
by applicable law or supervise, as the case may be, the distribution of proxy
materials by third parties to the shareholders of the Fund as required by
applicable law; (e) prepare or supervise the preparation by third parties
approved by the Trust of all federal, state, and local tax returns and reports
of the Fund required by applicable law; (f) prepare and arrange for the filing
of such registration statements and other documents as the Securities and
Exchange Commission and other federal and state regulatory authorities may
require by applicable law; (g) render to the Board of Trustees of the Trust such
periodic and special reports respecting the Fund as the Trustees may reasonably
request; and (h) make available its officers and employees to the Board of
Trustees and officers of the Trust for consultation and discussions regarding
the administration of the Fund.
4. PERFORMANCE OF DUTIES BY MCM
MCM further agrees that, in performing its duties set forth in Sections 2
and 3 above, and elsewhere hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations thereunder, the
Advisers Act, the Internal Revenue Code of 1986, as amended (the "Code")
and all other applicable federal and state laws and regulations, and with
any applicable procedures adopted by the Trustees;
(b) use reasonable efforts to manage the Fund so that it will qualify, and
continue to qualify, as a regulated investment company under Subchapter M
of the Code and regulations issued thereunder;
(c) maintain books and records with respect to the Fund's securities
transactions, render to the Board of Trustees of the Trust such periodic
and special reports as the Board may reasonably request, and keep the
Trustees informed of developments materially affecting the Fund's
portfolio;
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<PAGE> 28
(d) make available to the Trust, promptly upon request, such copies of its
investment records and ledgers with respect to the Fund as may be required
to assist the Trust in its compliance with applicable laws and regulations.
MCM will furnish the Trustees with such periodic and special reports
regarding the Fund as they may reasonably request;
(e) immediately notify the Trust in the event that MCM or any of its
affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents MCM from serving as investment adviser or
administrator pursuant to this Agreement; or (2) becomes aware that it is
the subject of an administrative proceeding or enforcement action by the
Securities and Exchange Commission or other regulatory authority. MCM
further agrees to notify the Trust immediately of any material fact known
to MCM respecting or relating to MCM that is not contained in the Trust's
Registration Statement regarding the Fund, or any amendment or supplement
thereto, but that is required to be disclosed therein, and of any statement
contained therein that becomes untrue in any material respect.
MCM, at its discretion, may enter into contracts with third parties for the
performance of the services to be provided by it under this Agreement.
5. DOCUMENTS
The Fund has delivered properly certified or authenticated copies of each
of the following documents to MCM and will deliver to it all future amendments
and supplements thereto, if any:
(a) certified resolution of the Board of Trustees of the Trust authorizing the
appointment of MCM and approving the form of this Agreement;
(b) The Registration Statement as filed with the Securities and Exchange
Commission and any amendments thereto; and
(c) exhibits, powers of attorneys, certificates and any and all other documents
relating to or filed in connection with the Registration Statement
described above.
6. BROKERAGE
In selecting brokers or dealers to execute transactions on behalf of the
Fund, MCM will use its best efforts to seek the best overall terms available. In
assessing the best overall terms available for any Fund transaction, MCM will
consider all factors it deems relevant, including, but not limited to, the
breadth of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer and the
reasonableness of the commission, if any, for the specific transaction and on a
continuing basis. In selecting brokers or
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<PAGE> 29
dealers to execute a particular transaction, and in evaluating the best overall
terms available, MCM is authorized to consider the brokerage and research
services (as those terms are defined in Section 28(e) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) provided to the Fund and/or other
accounts over which MCM or its affiliates exercise investment discretion. In
accordance with Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder, and
subject to any other applicable laws and regulations, MCM and its affiliates are
authorized to effect portfolio transactions for the Fund as agent and to retain
usual and customary brokerage commissions on such transactions.
7. RECORDS
MCM agrees to maintain and to preserve for the periods prescribed under the
1940 Act any such records as are required to he maintained by MCM with respect
to the Fund by the 1940 Act. MCM further agrees that all records which it
maintains for the Fund are the property of the Fund and it will promptly
surrender any of such records upon request.
8. STANDARD OF CARE
MCM shall exercise its best judgment in rendering the services under this
Agreement. MCM shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Fund or the Fund's shareholders in connection
with the matters to which this Agreement relates, provided that nothing herein
shall be deemed to protect or purport to protect MCM against any liability to
the Fund or to its shareholders to which MCM would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of MCM's reckless disregard of its
obligations and duties under this Agreement. As used in this Section 8, the term
"MCM" shall include any officers, directors, employees, or other affiliates of
MCM performing services with respect to the Fund.
9. COMPENSATION
In consideration of the services rendered pursuant to this Agreement, the
Fund will pay MCM a fee at an annual rate equal to 0.85% of the average daily
net assets of the Fund. This fee shall be computed and accrued daily and payable
monthly. For the purpose of determining fees payable to MCM, the value of the
Fund's average daily net assets shall be computed at the times and in the manner
specified in the Fund's Prospectus or Statement of Additional Information.
10. EXPENSES
MCM will bear all expenses in connection with the performance of its
services under this Agreement. The Fund will bear certain other expenses to be
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incurred in its operation, including: taxes, interest, brokerage fees and
commissions, if any; fees and expenses of Trustees of the Trust who are not
officers, directors, or employees of MCM; Securities and Exchange Commission
fees and state blue sky qualification fees; charges of custodians and transfer
and dividend disbursing agents; the Fund's proportionate share of insurance
premiums; outside auditing and legal expenses; costs of membership in any
industry trade groups; costs of maintenance of the Fund's existence; costs
attributable to investor services, including, without limitation, telephone and
personnel expenses; charges of independent pricing services; costs of preparing
and printing prospectuses and statements of additional information for
regulatory purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders of the Fund and of the
officers or Board of Trustees of the Trust; and any extraordinary expenses. in
addition, the Fund will pay distribution fees pursuant to a Distribution Plan
adopted under Rule 12b-1 of the 1940 Act.
11. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The investment advisory and administrative services provided by MCM to the
Fund under this Agreement are not to be deemed exclusive, and MCM, or any
affiliate thereof, shall be free to render similar services to other investment
companies and other clients (whether or not their investment objectives and
policies are similar to those of the Fund) and to engage in other activities, so
long as it services hereunder are not impaired thereby.
12. REIMBURSEMENT OF ORGANIZATION EXPENSES
The Trust hereby agrees to reimburse MCM for the organization expenses of,
and the expenses incurred in connection with, the initial offering of the shares
of the Fund.
13. DURATION AND TERMINATION
This Agreement shall become effective on , 2001 and shall
continue in effect, unless sooner terminated as provided herein, until
, 2002 and shall continue from year to year thereafter, provided
each continuance is specifically approved at least annually by (i) the vote of a
majority of the Board of Trustees of the Trust or (ii) a vote of a "majority"
(as defined in the 1940 Act) of the Fund's outstanding voting securities,
provided that in either event the continuance is also approved by a majority of
the Board of Trustees who are not "interested persons" (as defined in the 1940
Act) of any party to this Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval. This Agreement is terminable,
without penalty, on sixty (60) days' written notice by the Board of Trustees of
the Trust or by vote of holders of a majority of the Fund's shares or upon
ninety (90) days' written notice by MCM.
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This Agreement will also terminate automatically in the event of its
"assignment" (as defined in the 1940 Act).
14. AMENDMENT
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, and no amendment of this Agreement shall be effective until approved by
an affirmative vote of (i) a majority of the outstanding voting securities of
the Fund, and (ii) a majority of the Trustees of the Trust, including a majority
of Trustees who are not interested persons of any party to this Agreement, cast
in person at a meeting called for the purpose of voting on such approval, if
such approval is required by applicable law.
15. USE OF THE NAME "MARSICO"
Marsico Capital Management, LLC 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 or any logo or symbol authorized by Marsico Capital.
Such consent is conditioned upon the Trust's employment of Marsico Capital or
its affiliates 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 or any logo or
symbol authorized by Marsico Capital if the Trust or Series ceases to employ
Marsico Capital or an affiliate thereof as investment adviser.
16. MISCELLANEOUS
(a) This Agreement constitutes the full and complete agreement of the parties
hereto with respect to the subject matter hereof.
(b) Titles or captions of Sections contained in this Agreement are inserted
only as a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provisions thereof.
A-6
<PAGE> 32
(c) This Agreement may be executed in several counterparts, all of which
together shall for all purposes constitute one Agreement, binding on all
the parties.
(d) This Agreement and the rights and obligations of the parties hereunder
shall be governed by, and interpreted, construed and enforced in accordance
with the laws of the State of Delaware.
(e) If any provisions of this Agreement or the application thereof to any party
or circumstances shall be determined by any court of competent jurisdiction
to be invalid or unenforceable to any extent, the remainder of this
Agreement or the application of such provision to such person or
circumstance, other than those as to which it is so determined to be
invalid or unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the fullest extent permitted
by law.
(f) Notices of any kind to be given to MCM by the Trust shall be in writing and
shall be duly given if mailed or delivered to MCM at 1200 17th Street,
Suite 1300, Denver, Colorado 80202, Attn: Barbara M. Japha, or at such
other address or to such individual as shall be specified by MCM to the
Trust. Notices of any kind to be given to the Trust by MCM shall be in
writing and shall be duly given if mailed or delivered to 1200 17th Street,
Suite 1300, Denver, Colorado 80202, Attn: Christopher J. Marsico, or at
such other address or to such individual as shall be specified by the Trust
to MCM.
A-7
<PAGE> 33
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below on the day and year first above
written.
THE MARSICO INVESTMENT FUND
on Behalf of the Marsico Focus Fund
By:
------------------------------------
Name:
--------------------------------
Title:
---------------------------------
MARSICO CAPITAL
MANAGEMENT, LLC
By:
------------------------------------
Name:
--------------------------------
Title:
---------------------------------
A-8
<PAGE> 34
EXHIBIT B
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
OF THE MARSICO GROWTH & INCOME FUND
OF THE MARSICO INVESTMENT FUND
AGREEMENT, made this day of , 2001, between The Marsico
Investment Fund (the "Trust"), on behalf of the Marsico Growth & Income Fund
(the "Fund"), and Marsico Capital Management, LLC ("MCM"), a Delaware limited
liability company.
WHEREAS, the Trust is a Delaware business trust authorized to issue shares
in series and is registered as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and the Fund is
a series of the Trust;
WHEREAS, MCM is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended ("Advisers Act"); and
WHEREAS, the Trust wishes to retain MCM to render investment management
services to the Fund, and MCM is willing to furnish such services to the Fund;
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the Trust and MCM as follows:
1. APPOINTMENT
The Trust hereby appoints MCM to act as investment adviser and
administrator to the Fund for the periods and on the terms set forth herein. MCM
accepts the appointment and agrees to furnish the services set forth herein for
the compensation provided herein.
2. SERVICES AS INVESTMENT ADVISER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) manage the Fund in accordance with the Fund's
investment objectives and policies as stated in the Fund's Prospectus and the
Statement of Additional Information filed with the Securities and Exchange
Commission, as they may be amended from time to time; (b) make investment
decisions for the Fund; (c) place purchase and sale orders on behalf of the
Fund; and (d) employ portfolio managers and securities analysts to provide
research services to the Fund. In providing those services, MCM will provide the
Fund with ongoing research, analysis, advice, and judgments regarding individual
investments, general economic conditions and trends and long-range investment
policy. In addition, MCM will furnish the Fund with whatever statistical
information the
B-1
<PAGE> 35
Fund may reasonably request with respect to the securities that the Fund may
hold or contemplate purchasing.
3. SERVICES AS MANAGER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) assist in supervising and managing all aspects of the
Fund's operations; (b) maintain such books and records of the Fund as may be
required by applicable federal or state law, or supervise, as the case may be,
the maintenance by third parties approved by the Trust, of such books and
records; (c) supply the Fund with office facilities, data processing services,
clerical, accounting and bookkeeping services, internal auditing and internal
legal services, internal executive and administrative services, and stationery
and office supplies; (d) prepare, file, and arrange for the distribution of
proxy materials and periodic reports to the shareholders of the Fund as required
by applicable law or supervise, as the case may be, the distribution of proxy
materials by third parties to the shareholders of the Fund as required by
applicable law; (e) prepare or supervise the preparation by third parties
approved by the Trust of all federal, state, and local tax returns and reports
of the Fund required by applicable law; (f) prepare and arrange for the filing
of such registration statements and other documents as the Securities and
Exchange Commission and other federal and state regulatory authorities may
require by applicable law; (g) render to the Board of Trustees of the Trust such
periodic and special reports respecting the Fund as the Trustees may reasonably
request; and (h) make available its officers and employees to the Board of
Trustees and officers of the Trust for consultation and discussions regarding
the administration of the Fund.
4. PERFORMANCE OF DUTIES BY MCM
MCM further agrees that, in performing its duties set forth in Sections 2
and 3 above, and elsewhere hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations thereunder, the
Advisers Act, the Internal Revenue Code of 1986, as amended (the "Code")
and all other applicable federal and state laws and regulations, and with
any applicable procedures adopted by the Trustees;
(b) use reasonable efforts to manage the Fund so that it will qualify, and
continue to qualify, as a regulated investment company under Subchapter M
of the Code and regulations issued thereunder;
(c) maintain books and records with respect to the Fund's securities
transactions, render to the Board of Trustees of the Trust such periodic
and special reports as the Board may reasonably request, and keep the
Trustees informed of developments materially affecting the Fund's
portfolio;
B-2
<PAGE> 36
(d) make available to the Trust, promptly upon request, such copies of its
investment records and ledgers with respect to the Fund as may be required
to assist the Trust in its compliance with applicable laws and regulations.
MCM will furnish the Trustees with such periodic and special reports
regarding the Fund as they may reasonably request;
(e) immediately notify the Trust in the event that MCM or any of its
affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents MCM from serving as investment adviser or
administrator pursuant to this Agreement; or (2) becomes aware that it is
the subject of an administrative proceeding or enforcement action by the
Securities and Exchange Commission or other regulatory authority. MCM
further agrees to notify the Trust immediately of any material fact known
to MCM respecting or relating to MCM that is not contained in the Trust's
Registration Statement regarding the Fund, or any amendment or supplement
thereto, but that is required to be disclosed therein, and of any statement
contained therein that becomes untrue in any material respect.
MCM, at its discretion, may enter into contracts with third parties for the
performance of the services to be provided by it under this Agreement.
5. DOCUMENTS
The Fund has delivered properly certified or authenticated copies of each
of the following documents to MCM and will deliver to it all future amendments
and supplements thereto, if any:
(a) certified resolution of the Board of Trustees of the Trust authorizing the
appointment of MCM and approving the form of this Agreement;
(b) The Registration Statement as filed with the Securities and Exchange
Commission and any amendments thereto; and
(c) exhibits, powers of attorneys, certificates and any and all other documents
relating to or filed in connection with the Registration Statement
described above.
6. BROKERAGE
In selecting brokers or dealers to execute transactions on behalf of the
Fund, MCM will use its best efforts to seek the best overall terms available. In
assessing the best overall terms available for any Fund transaction, MCM will
consider all factors it deems relevant, including, but not limited to, the
breadth of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer and the
reasonableness of the commission, if any, for the specific transaction and on a
continuing basis. In selecting brokers or
B-3
<PAGE> 37
dealers to execute a particular transaction, and in evaluating the best overall
terms available, MCM is authorized to consider the brokerage and research
services (as those terms are defined in Section 28(e) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) provided to the Fund and/or other
accounts over which MCM or its affiliates exercise investment discretion. In
accordance with Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder, and
subject to any other applicable laws and regulations, MCM and its affiliates are
authorized to effect portfolio transactions for the Fund as agent and to retain
usual and customary brokerage commissions on such transactions.
7. RECORDS
MCM agrees to maintain and to preserve for the periods prescribed under the
1940 Act any such records as are required to be maintained by MCM with respect
to the Fund by the 1940 Act. MCM further agrees that all records which it
maintains for the Fund are the property of the Fund and it will promptly
surrender any of such records upon request.
8. STANDARD OF CARE
MCM shall exercise its best judgment in rendering the services under this
Agreement. MCM shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Fund or the Fund's shareholders in connection
with the matters to which this Agreement relates, provided that nothing herein
shall be deemed to protect or purport to protect MCM against any liability to
the Fund or to its shareholders to which MCM would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of MCM's reckless disregard of its
obligations and duties under this Agreement. As used in this Section 8, the term
"MCM" shall include any officers, directors, employees, or other affiliates of
MCM performing services with respect to the Fund.
9. COMPENSATION
In consideration of the services rendered pursuant to this Agreement, the
Fund will pay MCM a fee at an annual rate equal to 0.85% of the average daily
net assets of the Fund. This fee shall be computed and accrued daily and payable
monthly. For the purpose of determining fees payable to MCM, the value of the
Fund's average daily net assets shall be computed at the times and in the manner
specified in the Fund's Prospectus or Statement of Additional Information.
10. EXPENSES
MCM will bear all expenses in connection with the performance of its
services under this Agreement. The Fund will bear certain other expenses to be
B-4
<PAGE> 38
incurred in its operation, including: taxes, interest, brokerage fees and
commissions, if any; fees and expenses of Trustees of the Trust who are not
officers, directors, or employees of MCM; Securities and Exchange Commission
fees and state blue sky qualification fees; charges of custodians and transfer
and dividend disbursing agents; the Fund's proportionate share of insurance
premiums; outside auditing and legal expenses; costs of membership in any
industry trade groups; costs of maintenance of the Fund's existence; costs
attributable to investor services, including, without limitation, telephone and
personnel expenses; charges of independent pricing services; costs of preparing
and printing prospectuses and statements of additional information for
regulatory purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders of the Fund and of the
officers or Board of Trustees of the Trust; and any extraordinary expenses. In
addition, the Fund will pay distribution fees pursuant to a Distribution Plan
adopted under Rule 12b-1 of the 1940 Act.
11. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The investment advisory and administrative services provided by MCM to the
Fund under this Agreement are not to be deemed exclusive, and MCM, or any
affiliate thereof, shall be free to render similar services to other investment
companies and other clients (whether or not their investment objectives and
policies are similar to those of the Fund) and to engage in other activities, so
long as it services hereunder are not impaired thereby.
12. REIMBURSEMENT OF ORGANIZATION EXPENSES
The Trust hereby agrees to reimburse MCM for the organization expenses of,
and the expenses incurred in connection with, the initial offering of the shares
of the Fund.
13. DURATION AND TERMINATION
This Agreement shall become effective on , 2001 and shall
continue in effect, unless sooner terminated as provided herein, until
, 2002 and shall continue from year to year thereafter, provided each
continuance is specifically approved at least annually by (i) the vote of a
majority of the Board of Trustees of the Trust or (ii) a vote of a "majority"
(as defined in the 1940 Act) of the Fund's outstanding voting securities,
provided that in either event the continuance is also approved by a majority of
the Board of Trustees who are not "interested persons" (as defined in the 1940
Act) of any party to this Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval. This Agreement is terminable,
without penalty, on sixty (60) days' written notice by the Board of Trustees of
the Trust or by vote of holders of a majority of the Fund's shares or upon
ninety (90) days' written notice by MCM.
B-5
<PAGE> 39
This Agreement will also terminate automatically in the event of its
"assignment" (as defined in the 1940 Act).
14. AMENDMENT
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, and no amendment of this Agreement shall be effective until approved by
an affirmative vote of (i) a majority of the outstanding voting securities of
the Fund, and (ii) a majority of the Trustees of the Trust, including a majority
of Trustees who are not interested persons of any party to this Agreement, cast
in person at a meeting called for the purpose of voting on such approval, if
such approval is required by applicable law.
15. USE OF THE NAME "MARSICO"
Marsico Capital Management, LLC 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 or any logo or symbol authorized by Marsico Capital.
Such consent is conditioned upon the Trust's employment of Marsico Capital or
its affiliates 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 or any logo or
symbol authorized by Marsico Capital if the Trust or Series ceases to employ
Marsico Capital or an affiliate thereof as investment adviser.
16. MISCELLANEOUS
(A) This Agreement constitutes the full and complete agreement of the parties
hereto with respect to the subject matter hereof.
(b) Titles or captions of Sections contained in this Agreement are inserted
only as a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provisions thereof.
B-6
<PAGE> 40
(c) This Agreement may be executed in several counterparts, all of which
together shall for all purposes constitute one Agreement, binding on all
the parties.
(d) This Agreement and the rights and obligations of the parties hereunder
shall be governed by, and interpreted, construed and enforced in accordance
with the laws of the State of Delaware.
(e) If any provisions of this Agreement or the application thereof to any party
or circumstances shall be determined by any court of competent jurisdiction
to be invalid or unenforceable to any extent, the remainder of this
Agreement or the application of such provision to such person or
circumstance, other than those as to which it is so determined to be
invalid or unenforceable shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the fullest extent permitted
by law.
(f) Notices of any kind to be given to MCM by the Trust shall be in writing and
shall be duly given it mailed or delivered to MCM at 1200 17th Street,
Suite 1300, Denver, Colorado 80202, Attn: Barbara M. Japha, or at such
other address or to such individual as shall be specified by MCM to the
Trust. Notices of any kind to be given to the Trust by MCM shall be in
writing and shall be duly given if mailed or delivered to 1200 17th Street,
Suite 1300, Denver, Colorado 80202, Attn: Christopher J. Marsico, or at
such other address or to such individual as shall be specified by the Trust
to MCM.
B-7
<PAGE> 41
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below on the day and year first above
THE MARSICO INVESTMENT FUND
on Behalf of the Marsico Growth &
Income Fund
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MARSICO CAPITAL
MANAGEMENT, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-8
<PAGE> 42
EXHIBIT C
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
OF THE MARSICO 21ST CENTURY FUND
OF THE MARSICO INVESTMENT FUND
AGREEMENT, made this day of , 2001, between The Marsico
Investment Fund (the "Trust"), on behalf of the Marsico 21st Century Fund (the
"Fund"), and Marsico Capital Management, LLC ("MCM"), a Delaware limited
liability company.
WHEREAS, the Trust is a Delaware business trust authorized to issue shares
in series and is registered as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and the Fund is
a series of the Trust;
WHEREAS, MCM is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended ("Advisers Act"); and
WHEREAS, the Trust wishes to retain MCM to render investment management
services to the Fund, and MCM is willing to furnish such services to the Fund;
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the Trust and MCM as follows:
1. APPOINTMENT
The Trust hereby appoints MCM to act as investment adviser and
administrator to the Fund for the periods and on the terms set forth herein. MCM
accepts the appointment and agrees to furnish the services set forth herein for
the compensation provided herein.
2. SERVICES AS INVESTMENT ADVISER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) manage the Fund in accordance with the Fund's
investment objectives and policies as stated in the Fund's Prospectus and the
Statement of Additional Information filed with the Securities and Exchange
Commission, as they may be amended from time to time; (b) make investment
decisions for the Fund; (c) place purchase and sale orders on behalf of the
Fund; and (d) employ portfolio managers and securities analysts to provide
research services to the Fund. In providing those services, MCM will provide the
Fund with ongoing research, analysis, advice, and judgments regarding individual
investments, general economic conditions and trends and long-range investment
policy. In addition, MCM will furnish the Fund with whatever statistical
information the
C-1
<PAGE> 43
Fund may reasonably request with respect to the securities that the Fund may
hold or contemplate purchasing.
3. SERVICES AS MANAGER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) assist in supervising and managing all aspects of the
Fund's operations; (b) maintain such books and records of the Fund as may be
required by applicable federal or state law, or supervise, as the case may be,
the maintenance by third parties approved by the Trust, of such books and
records; (c) supply the Fund with office facilities, data processing services,
clerical, accounting and bookkeeping services, internal executive and
administrative services, and stationery and office supplies; (d) prepare, file,
and arrange for the distribution of proxy materials and periodic reports to the
shareholders of the Fund as required by applicable law or supervise, as the case
may be, the distribution of proxy materials by third parties to the shareholders
of the Fund as required by applicable law; (e) prepare or supervise the
preparation by third parties approved by the Trust of all federal, state, and
local tax returns and reports of the Fund required by applicable law; (f)
prepare and arrange for the filing of such registration statements and other
documents as the Securities and Exchange Commission and other federal and state
regulatory authorities may require by applicable law; (g) render to the Board of
Trustees of the Trust such periodic and special reports respecting the Fund as
the Trustees may reasonably request; and (h) make available its officers and
employees to the Board of Trustees and officers of the Trust for consultation
and discussions regarding the administration of the Fund.
4. PERFORMANCE OF DUTIES BY MCM
MCM further agrees that, in performing its duties set forth in Sections 2
and 3 above, and elsewhere hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations thereunder, the
Advisers Act, the Internal Revenue Code of 1986, as amended (the "Code")
and all other applicable federal and state laws and regulations, and with
any applicable procedures adopted by the Trustees;
(b) use reasonable efforts to manage the Fund so that it will qualify, and
continue to qualify, as a regulated investment company under Subchapter M
of the Code and regulations issued thereunder;
(c) maintain books and records with respect to the Fund's securities
transactions, render to the Board of Trustees of the Trust such periodic
and special reports as the Board may reasonably request, and keep the
Trustees informed of developments materially affecting the Fund's
portfolio;
C-2
<PAGE> 44
(d) make available to the Trust, promptly upon request, such copies of its
investment records and ledgers with respect to the Fund as may be required
to assist the Trust in its compliance with applicable laws and regulations.
MCM will furnish the Trustees with such periodic and special reports
regarding the Fund as they may reasonably request;
(e) immediately notify the Trust in the event that MCM or any of its
affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents MCM from serving as investment adviser or
administrator pursuant to this Agreement; or (2) becomes aware that it is
the subject of an administrative proceeding or enforcement action by the
Securities and Exchange Commission or other regulatory authority. MCM
further agrees to notify the Trust immediately of any material fact known
to MCM respecting or relating to MCM that is not contained in the Trust's
Registration Statement regarding the Fund, or any amendment or supplement
thereto, but that is required to be disclosed therein, and of any statement
contained therein that becomes untrue in any material respect.
MCM, at its discretion, may enter into contracts with third parties for the
performance of the services to be provided by it under this Agreement.
5. DOCUMENTS
The Fund has delivered properly certified or authenticated copies of each
of the following documents to MCM and will deliver to it all future amendments
and supplements thereto, if any:
(a) certified resolution of the Board of Trustees of the Trust authorizing the
appointment of MCM and approving the form of this Agreement;
(b) The Registration Statement as filed with the Securities and Exchange
Commission and any amendments thereto; and
(c) exhibits, powers of attorneys, certificates and any and all other documents
relating to or filed in connection with the Registration Statement
described above.
6. BROKERAGE
In selecting brokers or dealers to execute transactions on behalf of the
Fund, MCM will use its best efforts to seek the best overall terms available. In
assessing the best overall terms available for any Fund transaction, MCM will
consider all factors it deems relevant, including, but not limited to, the
breadth of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer and the
reasonableness of the commission, if any, for the specific transaction and on a
continuing basis. In selecting brokers or
C-3
<PAGE> 45
dealers to execute a particular transaction, and in evaluating the best overall
terms available, MCM is authorized to consider the brokerage and research
services (as those terms are defined in Section 28(e) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) provided to the Fund and/or other
accounts over which MCM or its affiliates exercise investment discretion. In
accordance with Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder, and
subject to any other applicable laws and regulations, MCM and its affiliates are
authorized to effect portfolio transactions for the Fund as agent and to retain
usual and customary brokerage commissions on such transactions.
7. RECORDS
MCM agrees to maintain and to preserve for the periods prescribed under the
1940 Act any such records as are required to be maintained by MCM with respect
to the Fund by the 1940 Act. MCM further agrees that all records which it
maintains for the Fund are the property of the Fund and it will promptly
surrender any of such records upon request.
8. STANDARD OF CARE
MCM shall exercise its best judgment in rendering the services under this
Agreement. MCM shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Fund or the Fund's shareholders in connection
with the matters to which this Agreement relates, provided that nothing herein
shall be deemed to protect or purport to protect MCM against any liability to
the Fund or to its shareholders to which MCM would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of MCM's reckless disregard of its
obligations and duties under this Agreement. As used in this Section 8, the term
"MCM" shall include any officers, directors, employees, or other affiliates of
MCM performing services with respect to the Fund.
9. COMPENSATION
In consideration of the services rendered pursuant to this Agreement, the
Fund will pay MCM a fee at an annual rate equal to 0.85% of the average daily
net assets of the Fund. This fee shall be computed and accrued daily and payable
monthly. For the purpose of determining fees payable to MCM, the value of the
Fund's average daily net assets shall be computed at the times and in the manner
specified in the Fund's Prospectus or Statement of Additional Information.
10. EXPENSES
MCM will bear all expenses in connection with the performance of its
services under this Agreement. The Fund will bear certain other expenses to be
C-4
<PAGE> 46
incurred in its operation, including: taxes, interest, brokerage fees and
commissions, if any; fees and expenses of Trustees of the Trust who are not
officers, directors, or employees of MCM; Securities and Exchange Commission
fees and state blue sky qualification fees; charges of custodians and transfer
and dividend disbursing agents; the Fund's proportionate share of insurance
premiums; outside auditing and legal expenses; costs of membership in any
industry trade groups; costs of maintenance of the Fund's existence; costs
attributable to investor services, including, without limitation, telephone and
personnel expenses; charges of independent pricing services; costs of preparing
and printing prospectuses and statements of additional information for
regulatory purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders of the Fund and of the
officers or Board of Trustees of the Trust; and any extraordinary expenses. In
addition, the Fund will pay distribution fees pursuant to a Distribution Plan
adopted under Rule 12b-1 of the 1940 Act.
11. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The investment advisory and administrative services provided by MCM to the
Fund under this Agreement are not to be deemed exclusive, and MCM, or any
affiliate thereof, shall be free to render similar services to other investment
companies and other clients (whether or not their investment objectives and
policies are similar to those of the Fund) and to engage in other activities, so
long as it services hereunder are not impaired thereby.
12. REIMBURSEMENT OF ORGANIZATION EXPENSES
The Trust hereby agrees to reimburse MCM for the organization expenses of,
and the expenses incurred in connection with, the initial offering of the shares
of the Fund, to the extent permissible.
13. DURATION AND TERMINATION
This Agreement shall become effective on , 2001 and shall
continue in effect, unless sooner terminated as provided herein, until
, 2002 and shall continue from year to year thereafter, provided each
continuance is specifically approved at least annually by (i) the vote of a
majority of the Board of Trustees of the Trust or (ii) a vote of a "majority"
(as defined in the 1940 Act) of the Fund's outstanding voting securities,
provided that in either event the continuance is also approved by a majority of
the Board of Trustees who are not "interested persons" (as defined in the 1940
Act) of any party to this Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval. This Agreement is terminable,
without penalty, on sixty (60) days' written notice by the Board of Trustees of
the Trust or by vote of holders of a majority of the Fund's shares or upon
ninety (90) days' written notice by MCM.
C-5
<PAGE> 47
This Agreement will also terminate automatically in the event of its
"assignment" (as defined in the 1940 Act).
14. AMENDMENT
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, and no amendment of this Agreement shall be effective until approved by
an affirmative vote of (i) a majority of the outstanding voting securities of
the Fund, and (ii) a majority of the Trustees of the trust, including a majority
of Trustees who are not interested persons of any party to this Agreement, cast
in person at a meeting called for the purpose of voting on such approval, if
such approval is required by applicable law.
15. USE OF THE NAME "MARSICO"
Marsico Capital Management, LLC 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 or any logo or symbol authorized by Marsico Capital.
Such consent is conditioned upon the Trust's employment of Marsico Capital or
its affiliates 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 connection 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 or any logo or
symbol authorized by Marsico Capital if the Trust or Series ceases to employ
Marsico Capital or an affiliate thereof as investment adviser.
16. MISCELLANEOUS
(a) This Agreement constitutes the full and complete agreement of the parties
hereto with respect to the subject matter hereof.
(b) Titles or captions of Sections contained in this Agreement are inserted
only as a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provisions thereof.
C-6
<PAGE> 48
(c) This Agreement may be executed in several counterparts, all of which
together shall for all purposes constitute one Agreement, binding on all
the parties.
(d) This Agreement and the rights and obligations of the parties hereunder
shall be governed by, and interpreted, construed and enforced in accordance
with the laws of the State of Delaware.
(e) If any provisions of this Agreement or the application thereof to any party
or circumstances shall be determined by any court of competent jurisdiction
to be invalid or unenforceable to any extent, the remainder of this
Agreement or the application of such provision to such person or
circumstance, other than those as to which it is so determined to be
invalid or unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the fullest extent permitted
by law.
(f) Notices of any kind to be given to MCM by the Trust shall be in writing and
shall be duly given if mailed or delivered to MCM at 1200 17th Street,
Suite 1300, Denver, Colorado 80202, Attn: Barbara M. Japha, or at such
other address or to such individual as shall be specified by MCM to the
Trust. Notices of any kind to be given to the Trust by MCM shall be in
writing and shall be duly given if mailed or delivered to 1200 17th Street,
Suite 1300, Denver, Colorado 80202, Attn: Christopher J. Marsico, or at
such other address or to such individual as shall be specified by the Trust
to MCM.
C-7
<PAGE> 49
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below on the day and year first above
written.
THE MARSICO INVESTMENT FUND
on behalf of the Marsico 21st Century
Fund
By:
------------------------------------
Name:
--------------------------------
Title:
---------------------------------
MARSICO CAPITAL
MANAGEMENT, LLC
By:
------------------------------------
Name:
--------------------------------
Title:
---------------------------------
C-8
<PAGE> 50
EXHIBIT D
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
OF THE MARSICO INTERNATIONAL OPPORTUNITIES FUND
OF THE MARSICO INVESTMENT FUND
AGREEMENT, made this day of 2001, between The Marsico
Investment Fund (the "Trust"), on behalf of the Marsico International
Opportunities Fund (the "Fund"), and Marsico Capital Management, LLC ("MCM"), a
Delaware limited liability company.
WHEREAS, the Trust is a Delaware business trust authorized to issue shares
in series and is registered as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and the Fund is
a series of the Trust;
WHEREAS, MCM is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended ("Advisers Act"); and
WHEREAS, the Trust wishes to retain MCM to render investment management
services to the Fund, and MCM is willing to furnish such services to the Fund;
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the Trust and MCM as follows:
1. APPOINTMENT
The Trust hereby appoints MCM to act as investment adviser and
administrator to the Fund for the periods and on the terms set forth herein. MCM
accepts the appointment and agrees to furnish the services set forth herein for
the compensation provided herein.
2. SERVICES AS INVESTMENT ADVISER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) manage the Fund in accordance with the Fund's
investment objectives and policies as stated in the Fund's Prospectus and the
Statement of Additional Information filed with the Securities and Exchange
Commission, as they may be amended from time to time; (b) make investment
decisions for the Fund; (c) place purchase and sale orders on behalf of the
Fund; and (d) employ portfolio managers and securities analysts to provide
research services to the Fund. In providing those services, MCM will provide the
Fund with ongoing research, analysis, advice, and judgments regarding individual
investments, general economic conditions and trends and long-range investment
policy. In addition, MCM will furnish the Fund with whatever statistical
information the
D-1
<PAGE> 51
Fund may reasonably request with respect to the securities that the Fund may
hold or contemplate purchasing.
3. SERVICES AS MANAGER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) assist in supervising and managing all aspects of the
Fund's operations; (b) maintain such books and records of the Fund as may be
required by applicable federal or state law, or supervise, as the case may be,
the maintenance by third parties approved by the Trust, of such books and
records; (c) supply the Fund with office facilities, data processing services,
clerical, accounting and bookkeeping services, internal executive and
administrative services, and stationery and office supplies; (d) prepare, file,
and arrange for the distribution of proxy materials and periodic reports to the
shareholders of the Fund as required by applicable law or supervise, as the case
may be, the distribution of proxy materials by third parties to the shareholders
of the Fund as required by applicable law; (e) prepare or supervise the
preparation by third parties approved by the Trust of all federal, state, and
local tax returns and reports of the Fund required by applicable law; (f)
prepare and arrange for the filing of such registration statements and other
documents as the Securities and Exchange Commission and other federal and state
regulatory authorities may require by applicable law; (g) render to the Board of
Trustees of the Trust such periodic and special reports respecting the Fund as
the Trustees may reasonably request; and (h) make available its officers and
employees to the Board of Trustees and officers of the Trust for consultation
and discussions regarding the administration of the Fund.
4. PERFORMANCE OF DUTIES BY MCM
MCM further agrees that, in performing its duties set forth in Sections 2
and 3 above, and elsewhere hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations thereunder, the
Advisers Act, the Internal Revenue Code of 1986, as amended (the "Code")
and all other applicable federal and state laws and regulations, and with
any applicable procedures adopted by the Trustees;
(b) use reasonable efforts to manage the Fund so that it will qualify, and
continue to qualify, as a regulated investment company under Subchapter M
of the Code and regulations issued thereunder;
(c) maintain books and records with respect to the Fund's securities
transactions, render to the Board of Trustees of the Trust such periodic
and special reports as the Board may reasonably request, and keep the
Trustees informed of developments materially affecting the Fund's
portfolio;
D-2
<PAGE> 52
(d) make available to the Trust, promptly upon request, such copies of its
investment records and ledgers with respect to the Fund as may be required
to assist the Trust in its compliance with applicable laws and regulations.
MCM will furnish the Trustees with such periodic and special reports
regarding the Fund as they may reasonably request;
(e) immediately notify the Trust in the event that MCM or any of its
affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents MCM from serving as investment adviser or
administrator pursuant to this Agreement; or (2) becomes aware that it is
the subject of an administrative proceeding or enforcement action by the
Securities and Exchange Commission or other regulatory authority. MCM
further agrees to notify the Trust immediately of any material fact known
to MCM respecting or relating to MCM that is not contained in the Trust's
Registration Statement regarding the Fund, or any amendment or supplement
thereto, but that is required to be disclosed therein, and of any statement
contained therein that becomes untrue in any material respect.
MCM, at its discretion, may enter into contracts with third parties for the
performance of the services to be provided by it under this Agreement.
5. DOCUMENTS
The Fund has delivered properly certified or authenticated copies of each
of the following documents to MCM and will deliver to it all future amendments
and supplements thereto, if any:
(a) certified resolution of the Board of Trustees of the Trust authorizing the
appointment of MCM and approving the form of this Agreement;
(b) The Registration Statement as filed with the Securities and Exchange
Commission and any amendments thereto; and
(c) exhibits, powers of attorneys, certificates and any and all other documents
relating to or filed in connection with the Registration Statement
described above.
6. BROKERAGE
In selecting brokers or dealers to execute transactions on behalf of the
Fund, MCM will use its best efforts to seek the best overall terms available. In
assessing the best overall terms available for any Fund transaction, MCM will
consider all factors it deems relevant, including, but not limited to, the
breadth of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer and the
reasonableness of the commission, if any, for the specific transaction and on a
continuing basis. In selecting brokers or
D-3
<PAGE> 53
dealers to execute a particular transaction, and in evaluating the best overall
terms available, MCM is authorized to consider the brokerage and research
services (as those terms are defined in Section 28(e) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) provided to the Fund and/or other
accounts over which MCM or its affiliates exercise investment discretion. In
accordance with Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder, and
subject to any other applicable laws and regulations, MCM and its affiliates are
authorized to effect portfolio transactions for the Fund as agent and to retain
usual and customary brokerage commissions on such transactions.
7. RECORDS
MCM agrees to maintain and to preserve for the periods prescribed under the
1940 Act any such records as are required to be maintained by MCM with respect
to the Fund by the 1940 Act. MCM further agrees that all records which it
maintains for the Fund are the property of the Fund and it will promptly
surrender any of such records upon request.
8. STANDARD OF CARE
MCM shall exercise its best judgment in rendering the services under this
Agreement. MCM shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Fund or the Fund's shareholders in connection
with the matters to which this Agreement relates, provided that nothing herein
shall be deemed to protect or purport to protect MCM against any liability to
the Fund or to its shareholders to which MCM would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of MCM's reckless disregard of its
obligations and duties under this Agreement. As used in this Section 8, the term
"MCM" shall include any officers, directors, employees, or other affiliates of
MCM performing services with respect to the Fund.
9. COMPENSATION
In consideration of the services rendered pursuant to this Agreement, the
Fund will pay MCM a fee at an annual rate equal to 0.85% of the average daily
net assets of the Fund. This fee shall be computed and accrued daily and payable
monthly. For the purpose of determining fees payable to MCM, the value of the
Fund's average daily net assets shall be computed at the times and in the manner
specified in the Fund's Prospectus or Statement of Additional Information.
10. EXPENSES
MCM will bear all expenses in connection with the performance of its
services under this Agreement. The Fund will bear certain other expenses to be
D-4
<PAGE> 54
incurred in its operation, including: taxes, interest, brokerage fees and
commissions, if any; fees and expenses of Trustees of the Trust who are not
officers, directors, or employees of MCM; Securities and Exchange Commission
fees and state blue sky qualification fees; charges of custodians and transfer
and dividend disbursing agents; the Fund's proportionate share of insurance
premiums; outside auditing and legal expenses; costs of membership in any
industry trade groups; costs of maintenance of the Fund's existence; costs
attributable to investor services, including, without limitation, telephone and
personnel expenses; charges of independent pricing services; costs of preparing
and printing prospectuses and statements of additional information for
regulatory purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders of the Fund and of the
officers or Board of Trustees of the Trust; and any extraordinary expenses. In
addition, the Fund will pay distribution fees pursuant to a Distribution Plan
adopted under Rule 12b-1 of the 1940 Act.
11. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The investment advisory and administrative services provided by MCM to the
Fund under this Agreement are not to be deemed exclusive, and MCM, or any
affiliate thereof, shall be free to render similar services to other investment
companies and other clients (whether or not their investment objectives and
policies are similar to those of the Fund) and to engage in other activities, so
long as it services hereunder are not impaired thereby.
12. REIMBURSEMENT OF ORGANIZATION EXPENSES
The Trust hereby agrees to reimburse MCM for the organization expenses of,
and the expenses incurred in connection with, the initial offering of the shares
of the Fund, to the extent permissible.
13. DURATION AND TERMINATION
This Agreement shall become effective on , 2001 and shall
continue in effect, unless sooner terminated as provided herein, until
, 2002 and shall continue from year to year thereafter, provided each
continuance is specifically approved at least annually by (i) the vote of a
majority of the Board of Trustees of the Trust or (ii) a vote of a "majority"
(as defined in the 1940 Act) of the Fund's outstanding voting securities,
provided that in either event the continuance is also approved by a majority of
the Board of Trustees who are not "interested persons" (as defined in the 1940
Act) of any party to this Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval. This Agreement is terminable,
without penalty, on sixty (60) days' written notice by the Board of Trustees of
the Trust or by vote of holders of a majority of the Fund's shares or upon
ninety (90) days' written notice by MCM.
D-5
<PAGE> 55
This Agreement will also terminate automatically in the event of its
"assignment" (as defined in the 1940 Act).
14. AMENDMENT
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, and no amendment of this Agreement shall be effective until approved by
an affirmative vote of (i) a majority of the outstanding voting securities of
the Fund, and (ii) a majority of the Trustees of the trust, including a majority
of Trustees who are not interested persons of any party to this Agreement, cast
in person at a meeting called for the purpose of voting on such approval, if
such approval is required by applicable law.
15. USE OF THE NAME "MARSICO"
Marsico Capital Management, LLC 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 or any logo or symbol authorized by Marsico Capital.
Such consent is conditioned upon the Trust's employment of Marsico Capital or
its affiliates 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 connection 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 or any logo or
symbol authorized by Marsico Capital if the Trust or Series ceases to employ
Marsico Capital or an affiliate thereof as investment adviser.
16. MISCELLANEOUS
(a) This Agreement constitutes the full and complete agreement of the parties
hereto with respect to the subject matter hereof.
(b) Titles or captions of Sections contained in this Agreement are inserted
only as a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provisions thereof.
D-6
<PAGE> 56
(c) This Agreement may be executed in several counterparts, all of which
together shall for all purposes constitute one Agreement, binding on all
the parties.
(d) This Agreement and the rights and obligations of the parties hereunder
shall be governed by, and interpreted, construed and enforced in accordance
with the laws of the State of Delaware.
(e) If any provisions of this Agreement or the application thereof to any party
or circumstances shall be determined by any court of competent jurisdiction
to be invalid or unenforceable to any extent, the remainder of this
Agreement or the application of such provision to such person or
circumstance, other than those as to which it is so determined to be
invalid or unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the fullest extent permitted
by law.
(f) Notices of any kind to be given to MCM by the Trust shall be in writing and
shall be duly given if mailed or delivered to MCM at 1200 17th Street,
Suite 1300, Denver, Colorado 80202, Attn: Barbara M. Japha, or at such
other address or to such individual as shall be specified by MCM to the
Trust. Notices of any kind to be given to the Trust by MCM shall be in
writing and shall be duly given if mailed or delivered to 1200 17th Street,
Suite 1300, Denver, Colorado 80202, Attn: Christopher J. Marsico, or at
such other address or to such individual as shall be specified by the Trust
to MCM.
D-7
<PAGE> 57
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below on the day and year first above
written.
THE MARSICO INVESTMENT FUND
on behalf of the Marsico International
Opportunities Fund
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MARSICO CAPITAL MANAGEMENT, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-8
<PAGE> 58
EXHIBIT E
ADVISORY FEES FOR CERTAIN OTHER FUNDS SUBADVISED BY
MARSICO CAPITAL MANAGEMENT, LLC
<TABLE>
<CAPTION>
TOTAL SUBADVISORY
ASSETS IN ADVISORY FEE TO
FUND MILLIONS* FEE MCM
---- --------- -------- -----------
<S> <C> <C> <C>
Nations Marsico Focused Equities Fund.... $2,365.0 0.85% 0.45%
Nations Marsico Growth & Income Fund..... 647.8 0.85 0.45
Nations Marsico 21st Century Fund........ 99.7 0.85 0.45
Nations Marsico Focused Equities Variable
Annuity Portfolio...................... 143.6 0.85 0.45
Nations Marsico Growth & Income Variable
Annuity Portfolio...................... 86.4 0.85 0.45
Marsico Capital Growth Portfolio, a
series of the American Skandia Trust... 1,887.7 0.90 0.45
Marsico Capital Growth Fund, a series of
American Skandia Advisor Funds,
Inc. .................................. 1,073.6 1.00 0.45
Style Select Series Focus Portfolio
Fund................................... 645.9 0.85 0.40(1)
Style Select Focused Growth & Income
Portfolio Fund......................... 103.4 1.00 0.45
Seasons Series Trust Focus Growth
Portfolio Variable Annuity............. 5.0 1.00 0.40
Frank Russell Investment Company Equity I
Fund................................... 126.4 0.55 0.35
Frank Russell Investment Company
Diversified Equity Fund................ 124.2 0.73 0.35
Enterprise Capital Appreciation Fund..... 285.6 0.75 0.45
Enterprise Accumulation Trust Variable
Annuity................................ 68.7 0.75 0.45
</TABLE>
------------------------------
* Assets shown in this Exhibit are as of July 31, 2000.
(1) A $100,000 bonus fee is payable annually to the subadvisor with the best
performance.
E-1
<PAGE> 59
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<PAGE> 63
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<PAGE> 64
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<PAGE> 65
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<PAGE> 66
MARSICO FUNDS
PO BOX 3210
MILWAUKEE, WI 53201-3201
THE MARSICO INVESTMENT FUND
MARSICO FOCUS FUND
SPECIAL MEETING OF SHAREHOLDERS
NOVEMBER 9, 2000
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF TRUSTEES
The undersigned hereby appoints Christopher J. Marsico and Barbara M.
Japha as proxies to vote for and in the name, place and stead of the undersigned
at the Special Meeting of Shareholders of the Marsico Focus Fund, the Marsico
Growth & Income Fund, the Marsico 21st Century Fund and the Marsico
International Opportunities Fund (the "Funds") to be held at the Hotel Monaco
Denver, 1717 Champa Street, Denver, Colorado 80202, on November 9, 2000 at 10:00
a.m., Mountain Time, and at any adjournment thereof, according to the number of
votes and as fully as if personally present.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER AS SPECIFIED. IF
NO SPECIFICATION IS MADE, THE PROXY WILL BE VOTED IN FAVOR OF PART (A) OF THE
PROPOSAL AND WITHIN THE DISCRETION OF THE PROXYHOLDERS AS TO ANY OTHER PROPOSAL.
--------------------------
TWO NEW LOW-COST WAYS
TO VOTE YOUR PROXY:
--------------------------
TO VOTE BY INTERNET:
1. Read the Proxy Statement and have your Proxy Card at hand.
2. Go to website.
www.marsicofunds.com OR www.proxyvote.com
3. Enter the 12-digit Control Number found on your Proxy card.
4. Follow the simple instructions at the web site.
TO VOTE BY TELEPHONE (TOUCH-TONE ONLY):
1. Read the Proxy Statement and have your Proxy Card at hand.
2. Call toll-free 1-800-690-6903.
3. Enter the 12-digit Control Number found on your Proxy Card.
4 Follow the simple recorded instructions.
<PAGE> 67
THIS PROXY CARD IS VALID ONLY WHEN SIGNED
MARSICO FOCUS FUND
VOTE ON PROPOSAL
PART (A) MARSICO FOCUS FUND SHAREHOLDERS ONLY: Approval of the
new investment advisory and management agreement
between the Marsico Investment Fund on behalf of the
Marsico Focus Fund and Marsico Capital Management,
LLC.
In their discretion, the Proxyholders are authorized
to vote upon such other matters which may legally
come before the Meeting or any adjournments thereof.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
---------------------------------------------- ------------------------
---------------------------------------------- ------------------------
Signature [PLEASE SIGN WITHIN BOX] Date Signature
-----------------------
NOTE: If you own shares in more than one Fund please complete a separate
proxy for each Fund.
<PAGE> 68
MARSICO FUNDS
PO BOX 3210
MILWAUKEE, WI 53201-3201
THE MARSICO INVESTMENT FUND
MARSICO GROWTH & INCOME FUND
SPECIAL MEETING OF SHAREHOLDERS
NOVEMBER 9, 2000
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF TRUSTEES
The undersigned hereby appoints Christopher J. Marsico and Barbara M.
Japha as proxies to vote for and in the name, place and stead of the undersigned
at the Special Meeting of Shareholders of the Marsico Focus Fund, the Marsico
Growth & Income Fund, the Marsico 21st Century Fund and the Marsico
International Opportunities Fund (the "Funds") to be held at the Hotel Monaco
Denver, 1717 Champa Street, Denver, Colorado 80202, on November 9, 2000 at 10:00
a.m., Mountain Time, and at any adjournment thereof, according to the number of
votes and as fully as if personally present.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER AS SPECIFIED. IF
NO SPECIFICATION IS MADE, THE PROXY WILL BE VOTED IN FAVOR OF PART (B) OF THE
PROPOSAL AND WITHIN THE DISCRETION OF THE PROXYHOLDERS AS TO ANY OTHER
PROPOSAL.
----------------------
TWO NEW LOW-COST WAYS
TO VOTE YOUR PROXY:
----------------------
TO VOTE BY INTERNET:
1. Read the Proxy Statement and have your Proxy Card at hand.
2. Go to website.
www.marsicofunds.com OR www.proxyvote.com
3. Enter the 12-digit Control Number found on your Proxy card.
4. Follow the simple instructions at the web site.
TO VOTE BY TELEPHONE (TOUCH-TONE ONLY):
1. Read the Proxy Statement and have your Proxy Card at hand.
2. Call toll-free 1-800-690-6903.
3. Enter the 12-digit Control Number found on your Proxy Card.
4. Follow the simple recorded instructions.
<PAGE> 69
THIS PROXY CARD IS VALID ONLY WHEN SIGNED
MARSICO GROWTH & INCOME FUND
VOTE ON PROPOSAL
PART (B) MARSICO GROWTH & INCOME FUND SHAREHOLDERS ONLY:
Approval of the new investment advisory and
management agreement between the Marsico Investment
Fund on behalf of the Marsico Growth & Income Fund
and Marsico Capital Management, LLC.
In their discretion, the Proxyholders are
authorized to vote upon such other matters which
may legally come before the Meeting or any
adjournments thereof.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
---------------------------------------------- ------------------------
---------------------------------------------- ------------------------
Signature [PLEASE SIGN WITHIN BOX] Date Signature
-----------------------
NOTE: If you own shares in more than one Fund please complete a separate
proxy for each Fund.
<PAGE> 70
MARSICO FUNDS
PO BOX 3210
MILWAUKEE, WI 53201-3201
THE MARSICO INVESTMENT FUND
MARSICO 21st CENTURY FUND
SPECIAL MEETING OF SHAREHOLDERS
NOVEMBER 9, 2000
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF TRUSTEES
The undersigned hereby appoints Christopher J. Marsico and Barbara M.
Japha as proxies to vote for and in the name, place and stead of the undersigned
at the Special Meeting of Shareholders of the Marsico Focus Fund, the Marsico
Growth & Income Fund, the Marsico 21st Century Fund and the Marsico
International Opportunities Fund (the "Funds") to be held at the Hotel Monaco
Denver, 1717 Champa Street, Denver, Colorado 80202, on November 9, 2000 at 10:00
a.m., Mountain Time, and at any adjournment thereof, according to the number of
votes and as fully as if personally present.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER AS SPECIFIED. IF
NO SPECIFICATION IS MADE, THE PROXY WILL BE VOTED IN FAVOR OF PART (C) OF THE
PROPOSAL AND WITHIN THE DISCRETION OF THE PROXYHOLDERS AS TO ANY OTHER PROPOSAL.
-----------------------
TWO NEW LOW-COST WAYS
TO VOTE YOUR PROXY:
-----------------------
TO VOTE BY INTERNET:
1. Read the Proxy Statement and have your Proxy Card at hand.
2. Go to website.
www.marsicofunds.com OR www.proxyvote.com
3. Enter the 12-digit Control Number found on your Proxy card.
4. Follow the simple instructions at the web site.
TO VOTE BY TELEPHONE (TOUCH-TONE ONLY):
1. Read the Proxy Statement and have your Proxy Card at hand.
2. Call toll-free 1-800-690-6903.
3. Enter the 12-digit Control Number found on your Proxy Card.
4. Follow the simple recorded instructions.
<PAGE> 71
THIS PROXY CARD IS VALID ONLY WHEN SIGNED
MARSICO 21ST CENTURY FUND
VOTE ON PROPOSAL
PART (C) MARSICO FOCUS FUND SHAREHOLDERS ONLY: Approval of
the new investment advisory and management agreement
between the Marsico Investment Fund on behalf of the
Marsico 21st Century Fund and Marsico Capital
Management, LLC.
In their discretion, the Proxyholders are authorized
to vote upon such other matters which may legally
come before the Meeting or any adjournments thereof.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
-------------------------------------------- ------------------------
-------------------------------------------- ------------------------
Signature [PLEASE SIGN WITHIN BOX] Date Signature
-----------------------
NOTE: If you own shares in more than one Fund please complete a separate
proxy for each Fund.
<PAGE> 72
MARSICO FUNDS
PO BOX 3210
MILWAUKEE, WI 53201-3201
THE MARSICO INVESTMENT FUND
MARSICO INTERNATIONAL OPPORTUNITIES FUND
SPECIAL MEETING OF SHAREHOLDERS
NOVEMBER 9, 2000
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF TRUSTEES
The undersigned hereby appoints Christopher J. Marsico and Barbara M.
Japha as proxies to vote for and in the name, place and stead of the undersigned
at the Special Meeting of Shareholders of the Marsico Focus Fund, the Marsico
Growth & Income Fund, the Marsico 21st Century Fund and the Marsico
International Opportunities Fund (the "Funds") to be held at the Hotel Monaco
Denver, 1717 Champa Street, Denver, Colorado 80202, on November 9, 2000 at 10:00
a.m., Mountain Time, and at any adjournment thereof, according to the number of
votes and as fully as if personally present.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER AS SPECIFIED. IF
NO SPECIFICATION IS MADE, THE PROXY WILL BE VOTED IN FAVOR OF PART (D) OF THE
PROPOSAL AND WITHIN THE DISCRETION OF THE PROXYHOLDERS AS TO ANY OTHER PROPOSAL.
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TWO NEW LOW-COST WAYS
TO VOTE YOUR PROXY:
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TO VOTE BY INTERNET:
1. Read the Proxy Statement and have your Proxy Card at hand.
2. Go to website.
www.marsicofunds.com OR www.proxyvote.com
3. Enter the 12-digit Control Number found on your Proxy card.
4. Follow the simple instructions at the web site.
TO VOTE BY TELEPHONE (TOUCH-TONE ONLY):
1. Read the Proxy Statement and have your Proxy Card at hand.
2. Call toll-free 1-800-690-6903.
3. Enter the 12-digit Control Number found on your Proxy Card.
4. Follow the simple recorded instructions.
<PAGE> 73
THIS PROXY CARD IS VALID ONLY WHEN SIGNED
MARSICO INTERNATIONAL OPPORTUNITIES FUND
VOTE ON PROPOSAL
PART (D) MARSICO INTERNATIONAL OPPORTUNITIES FUND
SHAREHOLDERS ONLY: Approval of the new investment
advisory and management agreement between the
Marsico Investment Fund on behalf of the Marsico
International Opportunities Fund and Marsico Capital
Management, LLC.
In their discretion, the Proxyholders are
authorized to vote upon such other matters which may
legally come before the Meeting or any adjournments
thereof.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
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Signature [PLEASE SIGN WITHIN BOX] Date Signature
-----------------------
NOTE: If you own shares in more than one Fund please complete a separate
proxy for each Fund.
