<PAGE>
As filed with the Securities and Exchange Commission on October 15, 1999
File No. 333-83951
File No. 811-09497
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [X]
Pre-Effective Amendment No. 2 [X]
Post-Effective Amendment No. ____ [ ]
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 [X]
Amendment No. 2 [ ]
INVESTORS CAPITAL FUNDS
(Exact Name of Registrant as Specified on Charter)
230 Broadway East
Suite 203
Lynnfield, Massachusetts 01940-2320
(Address of Principal Executive Offices)
(800) 949-1422
(Registrant's Telephone Number)
Theodore E. Charles, President
Investors Capital Funds
230 Broadway East
Suite 203
Lynnfield, Massachusetts 01940-2320
(Name and Address of Agent for Service)
Copies to:
Van P. Carter, Esq. Carolyn F. Mead, Esq.
Doepken Keevican & Weiss First Data Investor
58th Floor Services Group, Inc.
USX Tower 3200 Horizon Drive
600 Grant Street King of Prussia, PA
Pittsburgh, PA 15219 19406-0903
Approximate Date of Proposed Public Offering: As soon as practicable after the
effective date of this Registration Statement.
Title of Securities Being Registered: Shares of Beneficial Interest of
Investors Capital Funds.
<PAGE>
Investors Capital Funds
Investors Capital Internet Fund
Investors Capital Twenty Fund
PROSPECTUS
October 15, 1999
The Securities and Exchange Commission has not approved or disapproved these
Securities or passed upon the adequacy of this prospectus. Any representation to
the contrary is a criminal offense.
<PAGE>
TABLE OF CONTENTS
THE FUNDS
Investors Capital Internet Fund
Investors Capital Twenty Fund
MANAGEMENT OF THE FUNDS
YOUR ACCOUNT
Buying Shares
Selling Your Shares
Additional Information on Buying and Selling Fund Shares
DIVIDENDS, DISTRIBUTIONS AND TAXES
OTHER INVESTMENT STRATEGIES AND RISKS
ADDITIONAL INFORMATION
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INVESTORS CAPITAL INTERNET FUND
FUND INVESTMENT OBJECTIVES
The Fund seeks long term growth of capital through investment in a
non-diversified portfolio of Internet and Internet-related company common
stocks.
PRINCIPAL INVESTMENT STRATEGIES OF THE FUND
The Fund invests primarily in the common stocks and securities convertible into
common stocks of domestic companies principally engaged in the Internet and
Internet-related activities. The Fund pursues its goal by investing under
normal conditions at least 65% of its assets in stocks of U.S. companies in
various industries that are principally engaged in the Internet or
Internet-related activities.
The Internet is a global matrix of computer networks that enables commercial and
professional organizations, government agencies and consumers to communicate
electronically, access and share information and conduct business around the
world. The term Intranet refers to the application of Internet tools and
concepts to a company's internal network.
A company is considered "principally engaged" in the Internet or
Internet-related business if at least 50% of its assets, gross income or net
profits are committed to, or derived from, the research, design, development,
manufacturing or distribution of products, processes or services for use in
connection with or through the Internet, Internet-related businesses or
Intranet-related businesses. The Fund considers the following as Internet and
Internet-related industries.
INTERNET ACCESS PROVIDERS: Companies that provide users with access to
the Internet.
SOFTWARE DEVELOPERS: Companies that develop software tools to access
the Internet, facilitate information gathering and distribution and
process Internet-based transactions.
HARDWARE MANUFACTURERS: Companies that develop and manufacture
communication equipment, such as modems, switches and routers, used to
facilitate access to the Internet, and those that develop and
manufacture workstations and Personal Communications Systems used to
facilitate access to, and process data across, the Internet and to
provide Internet services.
CONTENT DEVELOPERS: Companies that supply information and entertainment
content, such as games, music, advertisements and video on the
Internet.
PUBLISHING COMPANIES: Companies that provide information about the
Internet through the publication of books, magazines and newspapers,
either on the Internet or in traditional print format.
E-COMMERCE RETAILERS: Companies that conduct or propose to conduct a
significant portion of their business through e-commerce retailing
operations or companies that are developing or participating in
Internet distribution channels.
The portfolio manager identifies potential investments through quantitative and
fundamental research. In making individual stock selections, the portfolio
manager generally uses a "bottom up" approach to identify individual companies
with earnings growth potential that may not be recognized by the market at
large. Realization of income is not a significant consideration when choosing
investments for the Fund.
Although the Fund may invest in companies of any size, it typically
invests in companies with assets of $10 billion or more. To achieve the
Fund's objective, the Fund will concentrate its investments in a group
of industries engaged in Internet and Internet-related activities. The
Fund may also invest up to 35% of its assets in companies outside of
this group of industries and in short-term money market instruments.
The portfolio manager will typically sell a stock when it appears less
likely to benefit from the current market and economic environment,
shows deteriorating fundamentals or declining price momentum, or falls
short of the manager's expectations.
The Fund intends to pursue an investment strategy that may result in a
high turnover of positions. The Fund's annual portfolio turnover rate
may be higher than many other mutual funds, sometimes exceeding 300%.
High portfolio turnover may result in greater brokerage commissions and
acceleration of capital gains which are taxable when distributed to
shareholders. Greater brokerage commissions and taxes on gains may
adversely affect the Fund's performance.
TEMPORARY INVESTMENTS
To respond to adverse market, economic, political, foreign or other conditions,
the Fund may invest up to 100% of its assets in U.S. short-term money market
instruments as a temporary defensive measure. Some of these short-term
money market instruments include:
o Commercial paper;
o Certificates of deposit, demand and time deposits and banker's
acceptances;
o U.S. government securities; and
o Repurchase agreements.
To the extent that the Fund engages in a temporary, defensive strategy, the Fund
may not achieve its stated investment objective.
PRINCIPAL RISKS
Any of the following situations could cause the Fund to lose money or
underperform in comparison with its peer group:
STOCK MARKET RISKS: Movements in the stock market may affect the Fund's
share prices on a daily basis. The overall market and the specific
securities held by the Fund may decline in value and you could lose
money.
STOCK SELECTION RISKS: The stocks in the Fund's portfolio may decline
in value or not increase in value when the stock market in general is
increasing or decreasing in value.
LIQUIDITY RISKS: The advisor may not be able to sell stocks at an
optimal time or price.
INTERNET SPECIFIC RISKS: Internet and Internet-related companies are
generally subject to a more rapid rate of change in technology than
other industries. In addition, many products and services of companies
engaged in the Internet and Internet-related operations are also
subject to relatively high risks of rapid obsolescence caused by
progressive scientific and technological advances.
INDUSTRY CONCENTRATION: The Fund invests primarily in Internet and
Internet-related companies and this concentration may make the Fund
more susceptible to certain risks of that industry than a fund that
invests in a wide range of industry sectors.
TECHNOLOGY-RELATED COMPANIES: The value of companies involved in
computers and communication may be vulnerable to the risk of
obsolescence due to technological advances and aggressive competitive
pressures that may affect the profitability of the companies in the
Fund's portfolio.
MANAGEMENT: The advisor's skill in choosing appropriate investments
will play a large part in determining whether the Fund is able to
achieve its investment objective. The advisor has no previous
experience managing a retail mutual fund.
NON-DIVERSIFICATION: The Fund is non-diversified and may invest a
greater portion of its assets in the securities of a single issuer
than a diversified fund. As a result, the Fund may be more sensitive to
economic business, political or other changes affecting the prices of
such issuers' securities, which may result in greater fluctuation in
the value of the Fund's shares. The Fund intends, however, to meet
certain tax diversification requirements.
SUITABILITY
The Fund may be appropriate for investors who seek capital appreciation and who
are willing to accept a significant degree of volatility and risk. Investors who
are seeking current income or who have a conservative or short-term investment
approach may wish to consider alternative investments.
Because the Fund concentrates its investments in a single industry (the
Internet), its shares do not represent a complete investment program and the
value of the Fund's shares may fluctuate more than other funds' shares that are
invested in a broader range of industries.
PAST FUND PERFORMANCE
Although past performance of a fund is no guarantee of how it will perform in
the future, historical performance may give you some indication of the risks of
investing in a mutual fund. Performance demonstrates how a mutual fund's returns
have varied over time. The Fund is recently organized and therefore has no
performance history. Once the Fund has performance for at least one calendar
year, a Bar Chart and Performance Table will be included in the prospectus. The
Fund's annual returns will also be compared to the returns of a benchmark index.
FEES AND EXPENSES OF THE FUND
This table describes the fees and expenses that you could expect to pay as an
investor in the Fund. SHAREHOLDER FEES are one-time expenses paid directly from
your investment. ANNUAL FUND OPERATING EXPENSES come out of Fund assets and are
reflected in the Fund's total return.
CLASS A SHARES CLASS C SHARES
-------------- --------------
SHAREHOLDER FEES
(fees paid directly from your investment)
Maximum front-end sales charge (load) -
% of offering price 5.75% None
Redemption Fee(1) 1.00% 1.00%
ANNUAL FUND OPERATING EXPENSES:
(expenses deducted from fund assets)
Management Fees 1.50% 1.50%
Distribution and Service (12b-1) fees(2) 0.25% 1.00%
Other Expenses(3) 1.25% 1.25%
- --------------------------------------------------------------------------------
TOTAL ANNUAL OPERATING
EXPENSES 3.00% 3.75%
(1) The 1.00% redemption fee for Class A and Class C Shares applies only to
redemptions within 12 months of acquisition. The fee is not applied to
shares acquired through reinvestment of dividends or capital gains.
(2) Includes an annual distribution fee of 0.25% of the Class A Share's average
daily net assets, and an annual distribution fee of 0.75% and an annual
service fee of 0.25 % of the Class C Share's average daily net assets.
(3) "Other Expenses" are based on the estimated expenses that the Fund expects
to incur in its initial fiscal year.
EXAMPLE
This example is intended to help you compare the cost of investing in the Fund
with the cost of investing in other mutual funds.
The example assumes that:
o you invest $10,000 in the Fund for the time periods indicated;
o you redeem all of your shares at the end of each time period;
o your investment has a 5% return each year;
o all distributions are reinvested; and
o the Fund's operating expenses remain the same.
This example is for comparison only. Actual returns and expenses will be
different and the Fund's performance and expenses may be higher or lower. Based
on the above assumptions, your costs for the Fund would be:
1 year 3 years
- --------------------------------------------------------------------------------
Class A $957 $1,449
Class C $479 $1,146
You would pay the following expenses if you did not redeem your shares:
1 year 3 years
- --------------------------------------------------------------------------------
Class A $861 $1,449
Class C $377 $1,146
INVESTORS CAPITAL TWENTY FUND
FUND INVESTMENT OBJECTIVES
The Fund seeks long-term growth of capital by investing primarily in common
stocks selected for their growth potential. The Fund normally concentrates its
investments in a core group of 20-30 common stocks.
PRINCIPAL INVESTMENT STRATEGIES OF THE FUND
The Fund will invest in common stocks of companies of any size, which may
include smaller emerging companies. Under normal conditions, the Fund will
invest at least 65% of its assets in a select group of 20-30 common stocks,
regardless of industry or sector, focusing on each individual company's growth
potential.
The advisor selects stocks by looking for companies with strong earnings growth
potential that has not been recognized in the overall market. Special emphasis
will be placed on mid cap and large cap companies that the advisor believes
demonstrate:
o Financial stability
o Strong earnings growth potential
o Dominant or strong market position
o Outstanding leadership.
Current income is not an important consideration in selecting the Fund's
investments.
The Fund intends to pursue an investment strategy that may result in a high
turnover of positions. The Fund's annual portfolio turnover rate may be higher
than many other mutual funds, sometimes exceeding 300%. High portfolio turnover
may result in greater brokerage commissions and acceleration of capital gains
which are taxable when distributed to shareholders. Greater brokerage
commissions and taxes on gains may adversely affect the Fund's performance.
TEMPORARY INVESTMENTS
To respond to adverse market, economic, political or other conditions, the Fund
may invest up to 100% of its assets in U.S. and foreign short-term money market
instruments as a temporary defensive measure. Some of the short-term
money market instruments include:
o Commercial paper
o Certificates of deposit, demand and time deposits and banker's
acceptances
o U.S. government securities
o Repurchase agreements.
To the extent that the Fund engages in a temporary, defensive strategy, the Fund
may not achieve its investment objective.
PRINCIPAL RISKS
Any of the following situations could cause the Fund to lose money or
underperform in comparison to its peer group:
STOCK MARKET RISKS: Movements in the stock market may affect the Fund's
share prices on a daily basis. The overall market and the specific
securities held by the Fund may decline in value and you could lose
money.
STOCK SELECTION RISKS: The stocks in the Fund's portfolio may decline
in value or not increase in value when the stock market in general is
increasing or decreasing in value.
SMALL OR NEW COMPANIES. The Fund may invest in the securities of small
or newly public companies that may be subject to greater price
fluctuations and significant losses due to unseasoned management,
increased competition or entrance into new markets. Shares of a small
company may pose greater risks than shares of a large company because
of narrow product lines, limited financial resources, less depth of
management or a limited trading market for its stock.
TECHNOLOGY-RELATED COMPANIES: The value of companies involved in
computers and communication may be vulnerable to the risk of
obsolescence due to technological advances.
NON-DIVERSIFICATION: The Fund is non-diversified and may invest a
greater portion of its assets in the securities of a single issuer
than a diversified fund. As a result, the Fund may be more sensitive to
economics, business, political or other changes affecting the prices of
such issuers' securities, which may result in greater fluctuation in
the value of the Fund's shares. The Fund intends, however, to meet
certain tax diversification requirements.
MANAGEMENT. The advisor's skill in choosing appropriate investments
will play a large part in determining whether the Fund is able to
achieve its investment objective. The advisor has no previous
experience managing a retail mutual fund.
SUITABILITY
The Fund may be appropriate for investors who seek capital appreciation and who
are able to accept short-term fluctuations in return for the potential of
greater long-term growth. Investors who are seeking current income or who have a
conservative or short-term investment approach may wish to consider alternative
investments.
PAST FUND PERFORMANCE
Although past performance of a fund is no guarantee of how it will perform in
the future, historical performance may give you some indication of the risks of
investing in a mutual fund. Performance demonstrates how a mutual fund's returns
have varied over time. The Fund is recently organized and therefore has no
performance history. Once the Fund has performance for at least one calendar
year, a Bar Chart and Performance Table will be included in the prospectus. The
Fund's annual returns will also be compared to the returns of a benchmark index.
FEES AND EXPENSES OF THE FUND
This table describes the fees and expenses that you could expect to pay as an
investor in the Fund. SHAREHOLDER FEES are one-time expenses paid directly from
your investment. ANNUAL FUND OPERATING EXPENSES come out of Fund assets and are
reflected in the Fund's total return.
CLASS A SHARES CLASS C SHARES
-------------- --------------
SHAREHOLDER FEES
(fees paid directly from your investment)
Maximum front-end sales charge (load) -
% of offering price 5.75% None
Redemption Fee(1) 1.00% 1.00%
ANNUAL FUND OPERATING EXPENSES:
(expenses deducted from fund assets)
Management Fees 1.50% 1.50%
Distribution and Service (12b-1) fees(2) 0.25% 1.00%
Other Expenses(3) 1.25% 1.25%
- --------------------------------------------------------------------------------
TOTAL ANNUAL OPERATING
EXPENSES 3.00% 3.75%
(1) The 1.00% redemption fee for Class A and Class C shares applies only to
redemptions within 12 months of acquisition. The fee is not applied to
shares acquired through reinvestment of dividends or capital gains.
(2) Includes an annual distribution fee of 0.25% of the Class A Share's average
daily net assets, and an annual distribution fee of 0.75% and an annual
service fee of 0.25 % of the Class C Share's average daily net assets.
(3) "Other Expenses" are based on the estimated expenses that the Fund expects
to incur in its initial fiscal year.
EXAMPLE
This example is intended to help you compare the cost of investing in the Fund
with the cost of investing in other mutual funds.
The example assumes that:
o you invest $10,000 in the Fund for the time periods indicated;
o you redeem all of your shares at the end of each time period;
o your investment has a 5% return each year;
o all distributions are reinvested; and
o the Fund's operating expenses remain the same.
This example is for comparison only. Actual returns and expenses will be
different and the Fund's performance and expenses may be higher or lower. Based
on the above assumptions, your costs for the Fund would be:
1 year 3 years
- --------------------------------------------------------------------------------
Class A $957 $1,449
Class C $479 $1,146
You would pay the following expenses if you did not redeem your shares:
1 year 3 years
- --------------------------------------------------------------------------------
Class A $861 $1,449
Class C $377 $1,146
<PAGE>
MANAGEMENT OF THE FUNDS
The Funds' investment advisor is:
Eastern Point Advisors, Inc.
230 Broadway East
Lynnfield, Massachusetts 01940-2320
The advisor is responsible for the selection, purchasing, monitoring and sale of
the securities in each Fund's investment portfolio. The advisor also arranges
for the transfer agency, custody and all other services necessary to operate the
Funds.
Eastern Point Advisors, Inc. was founded in 1995. In addition to the Funds, the
advisor manages private accounts, consisting primarily of individual accounts.
As of June 30, 1999, the advisor had approximately $100 million of assets under
management.
PORTFOLIO MANAGEMENT
Frederick F. Sears serves as the portfolio manager for each of the Funds. Mr.
Sears graduated from Boston University in 1990 with a Bachelor of Arts degree in
English and subsequently participated in Boston University's Masters of Business
Administration program. From 1994 to 1995, Mr. Sears researched and analyzed
companies for Boston-based FinNet, a financial services firm. From 1995 until
1998, Mr. Sears researched and analyzed companies for Boston-based Culverwell &
Company, a broker-dealer and investment banker specializing in small and
micro-cap securities. He is also the founder (1999) and General Partner of
Clermont Capital and the Clermont Fund, a United States-based long/short hedge
fund specializing in growth stocks.
MANAGEMENT FEES
Each Fund pays the advisor an annual fee of 1.50% of average daily net assets
payable monthly for providing investment advisory services.
The advisor has voluntarily undertaken to waive a portion of its advisory fee
and/or reimburse fund expenses so that each Fund's total operating expenses do
not exceed 5.00%.
The advisor has the right to terminate the fee waiver at any time with 60 days'
notice. Any waiver or reimbursement by the advisor is subject to repayment by
the Funds within the following three years if the Funds are able to make the
repayment without exceeding their current expense limits.
YEAR 2000 COMPLIANCE
The advisor is taking steps that it believes are reasonably designed to address
Year 2000 compliance issues with respect to its computer systems. The Funds'
other major service providers have informed the advisor that they have taken
comparable steps. However, there can be no assurance that these steps will be
sufficient to avoid any adverse impact on the business of the Funds.
Year 2000 issues may adversely affect companies in which the Funds invest where,
for example, such companies incur substantial costs to address Year 2000 issues
or suffer losses caused by the failure to do so adequately and in a timely
manner.
YOUR ACCOUNT
INVESTING IN THE FUNDS
Each Fund offers two classes of shares. Each class of shares has a different
combination of sales charges, fees and other features. You should consult your
financial advisor to determine which class best suits your investment goals and
time frame.
CHOOSING A SHARE CLASS
CLASS A SHARES
Class A shares have a maximum up-front sales charge of 5.75% that you pay when
you buy your shares. The front-end sales charge for the Class A shares decreases
with the amount you invest and is included in the offering price.
- --------------------------------------------------------------------------------
Sales charge as % of
Sales charge as % of amount invested
Amount invested offering price in each Fund
- --------------- -------------- ------------
less than $50,000 5.75% 6.10%
$50,000 but less than $100,000 4.75% 4.99%
$100,000 but less than $500,000 3.75% 3.90%
$500,000 but less than $1,000,000 2.75% 2.83%
$1,000,000 or more 1.00% 1.01%
- --------------------------------------------------------------------------------
Under certain circumstances, the sales charge for Class A shares may be waived.
Please see the Statement of Additional Information.
Class A shares are also subject to an annual 12b-1 fee of 0.25% of average daily
net assets, which is lower than the 12b-1 fee for the Class C shares.
WAYS TO REDUCE SALES CHARGES
Investors can reduce or eliminate sales charges on Class A shares under certain
conditions:
COMBINED PURCHASES
Purchase made at the same time by an individual, his or her spouse and any
children under the age of 21 are added together to determine the sales charge
rate.
RIGHT OF ACCUMULATION
If you already hold Class A shares of a Fund, the sales charge rate on
additional purchases can be based on your total Class A shares in the Fund.
LETTER OF INTENT
This non-binding agreement allows you to purchase Class A shares over a period
of 13 months with the sales charge that would have applied if you had purchased
them all at once.
COMBINATION PRIVILEGE
You can use the combined total of Class A shares of the Funds for the purpose of
calculating the sales charge.
PLEASE NOTE:
YOU MUST ADVISE YOUR DEALER, THE TRANSFER AGENT OR THE FUND IF YOU QUALIFY FOR A
REDUCTION AND/OR WAIVER IN SALES CHARGES.
CLASS C SHARES
o Class C shares have no up-front sales charge, so that the full amount of
your purchase is invested in the Funds.
o Class C shares are subject to an annual 12b-1 fee of 1.00%, of which 0.25%
are service fees paid to the distributor, dealers or others for providing
personal services and maintaining shareholder accounts.
o Because of the higher 12b-1 fees, Class C shares have higher expenses and
pay lower dividends than Class A shares.
Each Fund has adopted a separate 12b-1 plan that allows it to pay distribution
fees for the sales and distribution of its shares. Because these fees are paid
out of the Fund's assets on an ongoing basis, over time these fees will increase
the cost of your investment and may cost you more than paying other types of
sales charges.
BUYING SHARES
You can purchase shares of the Funds through broker-dealers or directly through
the advisor. You may buy shares in either Fund with an initial investment of
$250 or more. Additional investments may be made for as little as $50. The Funds
have the right to waive the minimum investment requirements for employees of the
Funds' investment advisor and its affiliates. The Funds also have the right to
reject any purchase order.
Purchase Price.
The price of the Fund's shares is based on the Net Asset Value (NAV) plus any
applicable front-end sales charge for Class A shares (the "Offering Price"). The
Funds calculate NAV by adding the total market value of the Fund's investments
and other assets, subtracting any liabilities, and then dividing that figure by
the total number of outstanding shares of the Fund (assets-liabilities/# of
shares = NAV). Each Fund's NAV is calculated at the close of regular trading of
the New York Stock Exchange ("NYSE"), normally 4 p.m. Eastern time.
If you pay a sales charge, your price will be the Fund's offering price. When
you buy shares at the offering price, the Fund deducts the appropriate sales
charge and invests the rest in the Fund. If you qualify for a sales charge
waiver, your price will be the Fund's NAV.
<TABLE>
TO BUY SHARES:
<CAPTION>
INITIAL INVESTMENT SUBSEQUENT INVESTMENTS
<S> <C> <C>
By Mail o Complete and sign the account o Make your check payable to the
registration. Fund in which you wish to invest.
o Make your check payable to the Fund in o Fill out an investment slip from an
which you wish to invest. account statement, include your name and
o Mail the application and your check to: account number. Mail to:
FIRST DATA INVESTOR SERVICES
GROUP, INC. FIRST DATA INVESTOR SERVICES GROUP, INC.
211 SOUTH GULPH ROAD 211 SOUTH GULPH ROAD
P.O. BOX 61767 P.O. BOX 61767
KING OF PRUSSIA, PA 19406 KING OF PRUSSIA, PA 19406
o Minimum Initial Investment is $250. o Minimum subsequent investment for all
accounts is $50.
By Wire o Call (877) IC FUNDS (877-423-8637) to o Call (877) IC FUNDS (877-423-8637) to
arrange for a wire purchase. For same day arrange for a wire purchase. For same day
purchase, the wire must be received by purchase, the wire must be received by
o Wire federal funds to: 4:00 p.m. Eastern time.
BOSTON SAFE DEPOSIT & TRUST o Wire federal funds to:
ABA #011001234 BOSTON SAFE DEPOSIT &TRUST
CREDIT: (INSERT NAME OF YOUR FUND) ABA #011001234
ACCT. #: CREDIT: (INSERT NAME OF YOUR FUND)
FBO: (INSERT YOUR NAME AND ACCT. #:
ACCOUNT NUMBER.) FBO: (INSERT YOUR NAME AND
o Mail completed account registration to ACCOUNT NUMBER.)
the address above. o Note: Your bank may charge a wire fee.
o Note: Your bank may charge a wire fee.
By Exchange o You may open an account by making an o You may add to an existing account by
exchange from an existing account. Exchanges making an exchange from an existing account.
can be made by mail, fax or telephone. Call Exchanges can be made by mail, fax or telephone.
(877) IC FUNDS (877-423-8637) for help. Call (877) IC FUNDS (877-423-8637) for help.
o Note: No fee or charge will apply, but o Completed authorization form must be on
there may be a capital gain or loss. file in advance.
o Exchanges are permitted only between the o Note: No fee or charge will apply, but
same classes of shares. there may be a capital gain or loss.
o Exchanges are permitted only between the
same classes of shares.
By Automatic o You must open a regular Fund account with o Call (877) IC FUNDS (877-423-8637) to request
the form.
Investment $250 minimum prior to participating in this o Complete and return the form and any
Plan plan. other required materials.
</TABLE>
Banks, brokers, 401(k) plans, financial advisors or financial supermarkets may
charge additional transaction fees, which would not be charged if shares were
purchased directly from the Funds.
The Funds may accept telephone orders. Unless you decline telephone privileges
on your account application, you may be responsible for any fraudulent telephone
orders as long as the Funds take reasonable measures to verify the orders.
Retirement Accounts
- -------------------
Shares of the Funds are available for purchase through individual retirement
accounts ("IRAs") and other retirement plans. Accounts established under such
plans must have all dividends reinvested in the Funds. For more information
about these plans or for an IRA application, please call (877) IC FUNDS
(877-423-8637).
SELLING YOUR SHARES
You may sell or "redeem" your shares on any day the NYSE is open, either
directly through the advisor or through your broker-dealer. The price you
receive will be the NAV next calculated after the Fund's transfer agent receives
your redemption request in proper order.
Selling Recently Purchased Shares
- ---------------------------------
The Funds will redeem shares that were recently purchased by check, but may
delay mailing the proceeds for up to 8 business days to allow the purchase
check to clear.
Signature Guarantees
- --------------------
A signature guarantee protects you against fraud by guaranteeing your signature
is authentic. A guarantee is required on all redemption requests over $10,000 or
when the redemption proceeds are to be sent to someone other than the owner of
record or to an address or bank account other than those of record. Most banks
or financial institutions can provide you with a signature guarantee, but a
notary public can not.
TO SELL SHARES:
By Mail o Submit a written request for redemption with:
|X| The Fund's name;
|X| Your Fund account number;
|X| The dollar amount or number of shares or percentage of
the account to be redeemed; and
|X| Signatures of all persons required to sign for
transactions, exactly as the shares are registered.
o Mail your request to:
First Data Investor Services Group, Inc.
211 South Gulph Road
P.O. Box 61767
King of Prussia, PA 19406
o A check will be mailed to the name
and address in which the account is
registered.
By Wire o This option must be elected either in the initial application
or subsequently in writing.
o Call (877) IC FUNDS (877-423-8637).
o Wire redemption requests must be received before 4:00 p.m. for
money to be wired the same business day.
o There is a $9.00 charge for redemptions under $10,000 made by
wire.
By Telephone o This service must be elected in advance, either in the initial
application or subsequently in writing.
o Call (877) IC FUNDS (877-423-8637) with your request.
o The Fund will use reasonable
procedures to confirm that the
request is genuine.
o Written confirmation will be provided.
By Systematic o Complete the appropriate section on the Account Registration
Withdrawal or call (877) IC FUNDS (877-423-8637) to request a form to
Plan add the plan.
o To participate, you must own or purchase shares with a value
of at least $10,000.
o Withdrawals can be monthly,
quarterly, semi-annually or
annually. The minimum amount is
$100. Redemption fees will not be
charged under this plan.
PLEASE NOTE THAT IF YOU USE A BROKER-DEALER OR FINANCIAL INSTITUTION TO ASSIST
YOU IN ANY OF THESE TRANSACTIONS, THEY MAY CHARGE A FEE FOR THIS SERVICE THAT
WOULD NOT BE CHARGED BY THE FUNDS.
ADDITIONAL INFORMATION ON BUYING AND SELLING FUND SHARES
General Policies
- ----------------
The Funds reserve the right to:
o reject any purchase order when the Funds determine that it is not in
the best interest of the Funds or their shareholders to accept such
order. The Funds will not permit market-timing or other abusive
trading practices in the Funds;
o make redemptions-in-kind (payments in portfolio securities rather
than cash) if the amount to be redeemed is large enough to affect
fund operations (for example, if it represents more than 1% of the
Fund's assets);
o change the minimum investment amounts;
o cancel any purchase order and impose a $20 returned check fee if the
purchase check does not clear;
o reject checks drawn on banks outside the United States or endorsed
over by a third party. All investments must be made in U.S. dollars.
Timing of Purchase or Sale Requests
- -----------------------------------
All requests received in good order by the transfer agent before the close of
the NYSE, typically 4:00 p.m. Eastern time, will be executed the same day, at
that day's NAV. Orders received after the close of the NYSE will be executed the
following day, at that day's NAV. Purchase and redemption orders are executed
only on days when the NYSE is open for trading. The NYSE is closed on New Year's
Day, Martin Luther King, Jr. Day, Presidents' Day, Good Friday, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas. If the NYSE closes
early, the deadlines for purchase and redemption orders will be accelerated to
the earlier closing time.
Determination of NAV
- --------------------
The NAV for the Funds is calculated at the close of regular trading hours of the
NYSE, which is normally 4:00 p.m. Eastern time. Each Fund calculates NAV by
adding up the total value of the Fund's investments and other assets,
subtracting liabilities, and then dividing that figure by the number of the
Fund's outstanding shares. The Fund's investments are valued based on market
value, or where market quotations are not available, on fair value as determined
in good faith by the Board of Trustees.
Redemption Policies
- -------------------
Payment for redemptions of Fund shares is usually made within one business day,
but no later than seven calendar days after receipt of your redemption request,
unless your purchase check has not yet cleared. The Funds may suspend the right
of redemption or postpone the date of payment for more than seven days during
any period when (1) trading on the NYSE is restricted or the NYSE is closed for
other than customary weekends and holidays, (2) the SEC has by order permitted
such suspension for the protection of the Funds' shareholders, or (3) an
emergency exists making disposal of portfolio securities or valuation of net
assets of the Funds not reasonably practicable.
Redemption Fees
- ---------------
To discourage short-term trading, purchases of Class A and Class C shares are
subject to a 1.00% redemption fee on shares redeemed within 12 months of
acquisition. Redemption fees are not imposed on shares acquired through the
reinvestment of dividends or capital gains distributions, or involuntarily
redeemed shares.
Minimum Balances
- ----------------
The Funds may redeem your remaining shares at net asset value if the balance of
your account falls below $250 due to redemptions. The Fund will notify you if
your balance has fallen below $250 and you will have 60 days to increase your
account balance before your shares are redeemed. The Fund may close any account
without notice if the account is inactive and the value of the account is $0.
Exchange Privileges
- -------------------
You may exchange all or part of your shares for shares of the same class in the
other Fund without paying a sales charge at the time of the exchange. Exchanges
are made based on the net asset value per share of each Fund at the time of the
exchange. You will not pay sales charges on shares acquired through reinvestment
of dividends. Exchanges are subject to the minimum investment requirements. You
may exchange shares by mail or telephone if authorized on the account
registration form. Telephone exchanges may be difficult to implement in times of
drastic economic or market changes. The Funds have the right to limit exchanges
to four times a year.
An exchange may result in a capital gain or loss for tax purposes. The Fund may
change or discontinue its exchange privilege, or temporarily suspend this
privilege during unusual market conditions.
Mailings to Shareholders
- ------------------------
The Funds mail quarterly statements summarizing the activity in your account(s)
and confirmations following each purchase or sale of your Fund shares. To reduce
expenses, the Funds will limit mailings of most financial reports, prospectuses
and account statements to one copy for each address that lists one or more
shareholders with the same last name. If you would like additional copies of
financial reports and prospectuses or separate mailings of account statements,
please call (877) IC FUNDS (877-423-8637).
DIVIDENDS, DISTRIBUTIONS AND TAXES
The Funds generally pay dividends and distributions of virtually all of their
net investment income and net realized capital gains at least once a year.
A dividend from net investment income represents the income the Fund earns from
dividends and interest paid on its investments, after payment of the Fund's
expenses.
A capital gain is the increase in value of a security that the Fund holds. The
gain is "unrealized" until the security is sold. Each realized capital gain is
either short-term or long-term depending on how long the Fund held the security,
regardless of how long you have held your shares. If the gain is on a security
held by the Fund one year or less, it is considered short term; a gain on a
security held more than one year by the Fund is considered long term.
Reinvestment Option
- -------------------
Dividend and capital gain distributions will be automatically reinvested in
additional shares of the Fund unless you elect to receive them by check on the
account application. You may change your dividend option at any time by
requesting a change in writing. You must have your dividends reinvested if you
participate in the Systematic Withdrawal Plan or any Retirement Plans. Dividends
are reinvested at the ex-dividend date at the NAV determined at the close of
business that day. There are no fees or charges on reinvestments.
Taxes on Dividends and Distributions
- ------------------------------------
Dividends you receive from a Fund, whether reinvested or taken in cash, are
generally taxable as ordinary income. Capital gains distributions are taxed
based on how long the Fund held the assets that generated the capital gain. This
is true no matter how long you have owned your shares or whether you reinvest
your distributions or receive them in cash.
The sale of Fund shares or the exchange of shares between two Funds is a taxable
event; you may realize a capital gain or loss on these transactions. You should
consult your own tax advisor for more specific information about federal, state
and local tax consequences.
You will receive an annual statement on the source and tax status of all
distributions for federal income tax purposes. You will also receive information
showing which portion of the distributions is not taxable in certain states.
Backup Withholding
- ------------------
Shareholders may have 31% of their distributions and proceeds withheld if the
Fund does not have complete, correct taxpayer information on file as required by
law.
OTHER INVESTMENT STRATEGIES AND RISKS
The Funds' main investment strategies are set out in the front of the
prospectus. The Funds may also use other investment strategies and invest in
securities that are not discussed in this prospectus, but which are described in
detail in the Funds' Statement of Additional Information (SAI). You may obtain a
copy of the SAI without charge by calling 800-000-00000.
Other Potential Risks
- ---------------------
Each Fund may, at times, invest a small portion of its assets in derivative
securities, such as future contracts and options. In addition, the Funds may
enter into interest rate, currency and swap agreements, which are deemed
derivatives. Derivatives can be illiquid, and a small investment in a derivative
could have a potentially large impact on the Fund's performance.
ADDITIONAL INFORMATION
For investors who want more information about the Funds, the following document
is available free upon request:
STATEMENT OF ADDITIONAL INFORMATION (SAI): The SAI provides more detailed
information about the Funds and is incorporated by reference into this
prospectus.
You can get free copies of the SAI, request other information and ask questions
about the Funds by contacting:
Investors Capital Funds
230 Broadway East
Suite 203
Lynnfield, MA 01940-2320
Telephone: (877) IC FUNDS (877-423-8637)
E-mail: [email protected]
Internet address: www.investorscapital.com
You can review the Funds' SAI at the Public Reference Room of the Securities and
Exchange Commission (SEC). You may obtain paper copies, by writing the Public
Reference Room of the SEC, Washington, D.C. 20549-6009. You may obtain
information about the operation of the Public Reference Room by calling:
800-SEC-0330. Note: The SEC charges a duplicating fee for paper copies.
You may also download a copy of this document from the SEC's Internet website
for no charge at http://www.sec.gov.
The Trust's SEC File No. is 811-0947.
<PAGE>
INVESTORS CAPITAL FUNDS
STATEMENT OF ADDITIONAL INFORMATION
INVESTORS CAPITAL INTERNET FUND
INVESTORS CAPITAL TWENTY FUND
October 15, 1999
This Statement of Additional Information is not a prospectus. It should be read
in conjunction with the Investors Capital Funds' prospectus dated October 15,
1999, which is incorporated by reference herein. The information in this
Statement of Additional Information expands on information contained in the
prospectus. The prospectus can be obtained without charge by contacting either
the dealer through whom you purchased shares or the Distributor at the phone
number or address below.
PRINCIPAL DISTRIBUTOR
Investors Capital Corporation
230 Broadway East
Suite 203
Lynnfield, Massachusetts 01940
(800) 949-1422
<PAGE>
TABLE OF CONTENTS
PAGE
Investors Capital Funds 1
Investment Strategies and Related Risks 1
Other Investment Practices and Risks 8
Investment Restrictions 10
Management of the Trust 11
Investment Management and Other Services 13
Description of Trust's Shares 16
Brokerage 17
Purchase, Redemption and Pricing of Shares 17
Net Asset Value 20
Taxes 21
Determination of Performance 24
Financial Statements 24
Appendix A - Description of Securities Ratings A-1
<PAGE>
INVESTORS CAPITAL FUNDS
Investors Capital Funds (the "Trust"), 230 Broadway East, Suite 203, Lynnfield,
Massachusetts 01940, is a non-diversified, open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"). The Trust was organized as a Delaware business trust on July 14,
1999.
The Trust offers shares of beneficial interest (the "shares") in the Investors
Capital Internet Fund and Investors Capital Twenty Fund (each a "Fund" and
collectively, the "Funds"). Each Fund is a separate portfolio of investments
with its own investment objective and offers two classes of shares: Class A
shares and Class C shares (referred to individually as a "class" and
collectively as the "classes").
INVESTMENT STRATEGIES AND RELATED RISKS
The prospectus describes the fundamental investment objectives and certain
restrictions applicable to the Funds. The following supplements the information
found in the prospectus concerning the investment policies of the Trust. The
investment practices described below, except for the discussion on portfolio
loan transactions, are not fundamental and may be changed by the Board of
Trustees without shareholder approval.
INTERNET AND INTERNET-RELATED COMPANIES. The Investors Capital Internet Fund
will invest in Internet and Internet-related companies, as defined in the
Prospectus, and will therefore be subject to risks in addition to those that
apply to the general equity and debt markets. Some events may disproportionately
affect the Internet-related sector as a whole or a particular industry in this
sector. Accordingly, this Fund may be subject to greater market volatility than
a fund that does not concentrate in a particular economic sector or industry.
In addition, some Internet-related companies are subject to governmental
regulation, which may limit their activities and may affect their ability to
earn a profit from a given line of business. Some Internet-related businesses
are subject to intense competitive pressures, including market share and price
competition.
COMMON STOCK. The Funds will generally invest in common stocks. Common stock
represents an equity (ownership) interest in a company or other entity. This
ownership interest often gives the Funds the right to vote on measures affecting
the company's organization and operations. Although common stocks generally have
a history of long-term growth in value, common stock prices are often volatile
in the short-term and can be influenced by general market risk and specific
corporate risks.
CONVERTIBLE SECURITIES. The Fund may invest in convertible securities.
Convertible securities may be bonds, preferred stock or other securities that
pay a fixed rate of interest or dividends, but offer the owner the option of
converting the security into common stock. The value of convertible securities
will change based on the price of the underlying common stock. Convertible
securities generally pay less interest or dividend income than similar
non-convertible securities, but a non-convertible security's income provides a
cushion against the stock's price declines.
SMALL CAPITALIZATION COMPANIES. The Funds may invest in companies with market
capitalizations of $1 billion or less. Investing in the common stock of smaller
companies involves special risks and considerations not typically associated
with investing in the common stock of larger companies. The securities of
smaller companies may experience more market price volatility than the
securities of larger companies. These companies are typically subject to more
dramatic changes in earnings and business prospects than larger, more
established companies. In addition, the securities of smaller companies are less
liquid because they tend to trade over-the-counter or on regional exchanges, and
the frequency and volume of their trading are often substantially less than for
securities of larger companies.
FOREIGN SECURITIES. Each Fund may invest directly in foreign securities or
indirectly in foreign securities through American Depository Receipts and
European Depository Receipts ("ADRs" and "EDRs"). For many foreign securities,
there are U.S. dollar denominated ADRs, which are bought and sold in the United
States and are issued by domestic banks. ADRs represent the right to receive
securities of foreign issuers deposited in the domestic bank or a correspondent
bank. Generally, there is a large, liquid market in the United States for most
ADRs. Each Fund may also invest in EDRs, which are receipts evidencing an
arrangement with a European bank similar to that for ADRs and are designed for
use in the European securities markets. EDRs are not necessarily denominated in
the currency of the underlying security. The Funds will not invest in
unsponsored ADRs and EDRs.
RISKS OF FOREIGN SECURITIES. Investments in foreign securities may involve a
greater degree of risk than securities of U.S. issuers. There may be less
information about foreign companies in the form of reports and ratings than
about U.S. issuers. Foreign issuers may not be subject to uniform accounting,
auditing and financial reporting requirements comparable to those applicable to
U.S. issuers. Foreign markets may not be as developed or efficient as those in
the United States and there is generally less government supervision and
regulation of securities exchanges, brokers and listed issuers than in the
United States.
Additionally, there is the possibility of adverse changes in investment or
exchange control regulations, expropriation, nationalization, foreign taxation,
limitations on the removal of assets of a Fund from a country, political or
social instability, or diplomatic developments.
If a Fund's foreign securities are denominated in currencies other than the U.S.
dollar, changes in foreign currency exchange rates will affect the Fund's net
asset value, the value of dividends and interest earned, gains and losses
realized on the sale of securities, and any net investment income and gains that
the Fund distributes to shareholders.
RESTRICTED SECURITIES. The Funds may purchase securities that are not registered
under the Securities Act of 1933, as amended (the "1933 Act") and which are
subject to restrictions on transfer. Each Fund will limit investments in
restricted securities to no more than 15% of the Fund's total assets, excluding
restricted securities eligible for resale pursuant to Rule 144A that have been
determined to be liquid by the Funds' Board of Trustees.
RULE 144A SECURITIES. Each Fund may purchase securities which are not registered
under the 1933 Act but which can be sold to "qualified institutional buyers" in
accordance with Rule 144A under the 1933 Act. These securities may be classified
as "illiquid securities", however, any such security will not be considered
illiquid if it is determined by the Advisor, under guidelines approved by the
Funds' Board of Trustees, that an adequate market exists for that security. This
investment practice could have the effect of raising the level of illiquidity in
a Fund during any period in which qualified institutional buyers are not
interested in purchasing these restricted securities.
ILLIQUID SECURITIES. Each Fund may invest up to 15% of its net assets in
securities that are illiquid because of restrictions on transferability or other
reasons. Illiquid securities generally include securities that cannot be sold
within seven business days in the ordinary course of business at approximately
the price at which the Fund has valued the securities. Repurchase agreements
with maturities in excess of seven business days and securities that are not
registered under the 1933 Act, but that may be purchased by institutional buyers
pursuant to Rule 144A under the Securities Act, are subject to this 15% limit
(unless such securities are variable amount master demand notes with maturities
of nine months or less or unless the Board determines that a liquid trading
market exists).
WHEN-ISSUED SECURITIES. The Funds may invest in securities prior to their date
of issue. These securities could rise or fall in value by the time they are
actually issued, which may be any time from a few days to over a year.
FIXED-INCOME SECURITIES. Each Fund may invest in fixed-income securities. Even
though interest-bearing securities are investments which promise a stable
stream of income, the prices of such securities are affected by changes in
interest rates. In general, bond prices rise when interest rates fall and fall
when interest rates rise. The values of fixed-income securities also may be
affected by changes in the credit rating or financial condition of the issuing
entities. Once the rating of a portfolio security has been changed, the Fund
will consider all circumstances deemed relevant in determining whether to
continue to hold the security.
U.S. GOVERNMENT SECURITIES. Each Fund may invest in certain securities issued or
guaranteed by the U.S. government or its agencies or instrumentalities,
including U.S. Treasury securities, which differ in their interest rates,
maturities and times of issuance. Treasury bills have a maturity of one year or
less. Treasury notes have a maturity of one to ten years and Treasury bonds
generally have maturities of greater than ten years at the date of issuance.
Some obligations issued or guaranteed by U.S. government agencies and
instrumentalities, such as Government National Mortgage Association pass-through
certificates, are supported by the full faith and credit of the U.S. Treasury.
Other obligations such as those of the Federal Home Loan Bank, are supported
only by the credit of the instrumentalities. Government securities may have
fixed, floating or variable rates of interest. Principal and interest may
fluctuate based on generally recognized reference rates or the relationship of
rates. No assurance can be given that the U.S. government would provide
financial support to U.S. government instrumentalities as it is not obligated to
do so by law.
CREDIT RATINGS. When investing in fixed income securities, the Funds will
purchase only those securities rated at the time of purchase within the four
highest grades assigned by Standard & Poor's Rating Group ("S&P") (AAA, AA, A,
BBB, BB) or Moody's Investor's Service, Inc. (Moody's) (Aaa, Aa, A, Baa)
Generally, the ratings of Moody's and S&P represent the opinions of these
agencies as to the credit quality of the securities, which they rate. These
ratings are subjective and are not absolute standards of quality. Changes in the
rating of any fixed-income security or in the ability of the issuer to make
payments of interest and principal will affect the value of the security.
A Fund may invest in eligible unrated securities, which, in the opinion of the
Advisor, offer comparable risks to permissible rated securities. A security may
cease to be rated or its rating may be reduced below the minimum required for
purchase by the Fund after purchase. Neither of these events will necessarily
require the Fund to sell the securities.
Fixed-Income investments bear certain risks, including Credit Risk, or the
ability of an issuer to pay interest and principal as they become due.
Generally, higher yielding bonds are subject to more credit risk than higher
quality bonds. Interest rate risk refers to the fluctuations in value of
fixed-income securities resulting from the inverse relationship between the
market value of outstanding fixed-income securities and changes in interest
rates. An increase in interest rates will generally reduce the market value of
fixed-income investments, and a decline in interest rates will tend to increase
their value.
Call risk is the risk that an issuer will pay principal on an obligation earlier
than scheduled or expected, which would accelerate cash flows from, and shorten
the average life of, the security. Bonds are typically called when interest
rates have declined. In the event of a bond being called, the Advisor may have
to reinvest in lower yielding securities to the detriment of the Fund.
Extension risk is the risk that an issuer may pay principal on an obligation
slower than expected, having the effect of extending the average life and
duration of the obligation. This typically happens when interest rates have
increased.
REPURCHASE AGREEMENTS. The Funds may enter into repurchase agreements with
approved banks and broker-dealers. In a repurchase agreement, a Fund purchases
securities with the understanding that they will be repurchased by the seller at
a set price on a set date.
Repurchase agreements involve some credit risk. For example, if a seller
defaults, a fund will suffer a loss if the proceeds from the sale of the
collateral are lower than the repurchase price. To minimize risk, collateral
must be held with the Funds' custodian at least equal to the repurchase price,
including any accrued interest.
DERIVATIVES. The Funds may invest in derivative instruments, which are financial
instruments whose performance and value are derived, at least in part, from
another source, such as the performance of an underlying asset or security.
Derivatives may be purchased for hedging purposes, to enhance returns, as a
substitute for purchasing or selling securities, to maintain liquidity or in
anticipation of changes in the composition of its portfolio holdings. The Funds'
transactions in derivative instruments may include the purchase and writing of
options on securities.
WRITING COVERED OPTIONS. A call option on securities obligates the Fund to sell
specified securities to the holder of the option at a specified price if the
option is exercised at any time before the option's expiration date. A put
option on securities obligates the Fund to purchase specified securities from
the option holder at a specified price if the option is exercised at any time
before the option's expiration date. Writing covered call options may deprive a
Fund of the opportunity to profit from an increase in the market price of the
securities in its portfolio. Writing covered put options may deprive a Fund of
the opportunity to profit from a decrease in the market price of the securities
to be acquired for its portfolio.
All call and put options written by the Funds are covered by (1) maintaining
cash or liquid securities in a segregated account with a value at least equal to
a Fund's obligation under the option, (2) entering into an offsetting forward
commitment and/or (3) purchasing an offsetting option or any other option which,
by virtue of its exercise price or otherwise, reduces the Fund's net exposure on
its written option position. A written call option on securities is typically
covered by maintaining the securities that are subject to the option in a
segregated account.
A Fund may terminate its obligations under an exchange-traded call or put option
by purchasing an option identical to the one it has written. Obligations under
over-the-counter options may be terminated only by entering into an offsetting
transaction with the other party to the option. These purchases are referred to
as "closing purchase transactions."
PURCHASING OPTIONS. A Fund would normally purchase call options in anticipation
of an increase, or put options in anticipation of a decrease ("protective puts")
in the market value of securities of the type in which it may invest. A Fund may
also sell call and put options to close out its purchased options.
The purchase of a call option enables a fund to purchase specified securities at
a set price during the option period, in return for the premium paid. A fund
would ordinarily realize a gain on the purchase of a call option if, during the
option period, the value of such securities exceeded the sum of the exercise
price, the premium paid and transaction costs; otherwise the fund would realize
either no gain or a loss on the purchase of the call option.
The purchase of a put option enables a fund to sell specified securities at a
specified price during the option period, in exchange for the premium paid. The
purchase of protective puts is designed to offset or hedge against a decline in
the market value of a fund's portfolio securities. Put options may also be
purchased for the purpose of benefiting from a decline in the price of
securities, which it does not own. A fund would ordinarily realize a gain if,
during the option period, the value of the underlying securities decreased below
the exercise price sufficiently to cover the premium and transaction costs;
otherwise the fund would realize either no gain or a loss on the purchase of the
put option. Gains and losses on the purchase of put options may be offset by
compensating changes in the value of the fund's portfolio securities.
RISKS ASSOCIATED WITH OPTIONS TRANSACTIONS. The success of transactions in
derivative instruments depends on the Advisor's judgment as to their potential
risks and rewards. Use of derivatives exposes a fund to additional investment
risks and transaction costs. Risks inherent in the use of derivative instruments
include: adverse movements in the prices of securities or currencies and the
possible absence of a liquid secondary market for any particular instrument.
OTHER INVESTMENT PRACTICES AND RISKS
LENDING PORTFOLIO SECURITIES. The Funds may lend their portfolio securities.
These loans are secured by the delivery to a Fund of cash collateral, which may
be invested in short-term debt securities and money market funds. The Funds may
make loans only to broker-dealers who are members of the New York Stock Exchange
(NYSE), or who have net capital of at least $10,000,000. Such loans will not be
made against less than 100% cash collateral maintained at 100% of the market
value (marked-to-market daily) of the loaned securities. Loans will be made only
if a Fund can terminate the loan at any time.
When a Fund lends portfolio securities, there is a risk that the borrower may
fail to return the securities. As a result, a Fund may incur a loss or, in the
event of a borrower's bankruptcy, may be prevented from or delayed in,
liquidating the collateral.
REVERSE REPURCHASE AGREEMENTS. The Funds may enter into reverse repurchase
agreements under which a Fund sells portfolio assets with an agreement to
repurchase the assets at a later date at a set price. The Fund continues to
receive principal and interest payments on these securities. The Funds will
maintain a segregated custodial account consisting of cash or liquid securities
of any type or maturity, having a value at least equal to the repurchase price,
plus accrued interest.
Reverse repurchase agreements involve the risk that the value of the securities
sold by a fund may decline below the price of the securities the fund is
obligated to repurchase. Reverse repurchase agreements are borrowings by a fund
and are subject to its investment restrictions on borrowing.
NON-DIVERSIFICATION. The Funds are classified as "non-diversified" under the
1940 Act. Non-diversification means that the proportion of a fund's assets that
may be invested in the securities of a single issuer is not limited by the 1940
Act. Since they may invest a larger proportion of their assets in a single
issuer, an investment in these Funds may be subject to greater fluctuations in
value than an investment in a diversified fund.
PORTFOLIO TURNOVER. Each Fund's portfolio turnover rate is calculated by
dividing the lesser of the purchases or sales of portfolio investments for the
reporting period by the monthly average value of the portfolio investments owned
during the reporting period.
Under certain market conditions, the Internet Fund's portfolio turnover rate may
be higher than that of other mutual funds. The Fund may engage in short-term
trading (purchase and sale of security in a relatively brief period of time) in
response to stock market conditions or changes in economic trends and
developments. Although the Internet Fund's annual portfolio turnover rate cannot
be accurately predicted, it is estimated this rate will not exceed approximately
300% for the current fiscal year. The fact that the Internet Fund's turnover
rate may be higher than that of other mutual funds may be dictated by the nature
of the industry in which it is investing. Historically, stock in Internet and
Internet-related companies has experienced significant fluctuations in price
within short periods of time. As such, in order to achieve the Internet Fund's
stated objective, it may be necessary to buy and sell portfolio securities
within shorter than normal time periods.
The Investors Capital Twenty Fund may have a portfolio turnover rate higher than
that of other mutual funds with a similar objective. Although the Fund's annual
portfolio turnover rate cannot be accurately predicted, it is estimated this
rate will not exceed approximately 300% for the current fiscal year.
High rates of portfolio turnover (100% or more) entail certain costs, including
increased taxable income for the Funds' shareholders. Also, the higher the
turnover, the higher the overall brokerage commissions, dealer mark-ups and
markdowns, and other transactions costs incurred. The Advisor takes these costs
into account, since they affect the Funds' overall investment performance and
reduce shareholders' return.
TEMPORARY INVESTMENTS. To maintain cash for redemptions and distributions and
for temporary defensive purposes, the Funds may invest in money market mutual
funds and in investment grade short-term fixed income securities including, but
not limited to, short-term U.S. government securities, negotiable certificates
of deposit, commercial paper, banker's acceptances and repurchase agreements.
OTHER INVESTMENTS. Subject to prior disclosure to shareholders, the Trustees
may, in the future, authorize the Funds to invest in securities other than those
listed here and in the prospectus, provided that such investment would be
consistent with the Fund's investment objective and that it would not violate
any fundamental investment policies or restrictions applicable to the Funds.
INVESTMENT RESTRICTIONS
FUNDAMENTAL INVESTMENT RESTRICTIONS. The following investment restrictions are
considered fundamental, which means they may be changed only with the approval
of the holders of a majority of a Fund's outstanding voting securities, defined
in the 1940 Act as the lesser of: (1) 67% or more of a fund's outstanding shares
present at a meeting, if the holders of more than 50% of the fund's outstanding
shares are present in person or represented by proxy, or (2) more than 50% of
such funds outstanding shares. Except as otherwise stated in the prospectus,
each Fund may not:
1. Borrow money or issue senior securities, except to the extent permitted by
the 1940 Act.
2. Underwrite securities of other issuers, except insofar as a Fund may be
deemed an underwriter under the 1933 Act when selling its own portfolio
securities.
3. Purchase, sell or invest in real estate, real estate investment trust
securities, real estate limited partnership interests, but the Funds may
purchase and sell securities that are secured by real estate and may
purchase and sell securities issued by companies that invest or deal in real
estate.
4. Invest in commodities or commodity futures contracts, or invest in oil, gas
or other mineral leases, or exploration or development programs, except for
transactions in financial derivative contracts, such as forward currency
contracts; financial futures contracts and options on financial futures
contracts; options on securities, and currencies.
5. Make loans to other persons, except loans of securities not exceeding
one-third of the Fund's total assets. For purposes of this limitation,
investments in debt obligations and transactions in repurchase agreements
shall not be treated as loans.
6. Invest in the securities of any one industry (except securities issued or
guaranteed by the U.S. government, its agencies and instrumentalities), if
as a result more than 25% of the Fund's total assets would be invested in
the securities of such industry. This does not apply to the Investors
Capital Internet Fund, which will be at least 65% invested in securities of
Internet and Internet-related companies as defined in the prospectus.
NON-FUNDAMENTAL INVESTMENT RESTRICTIONS. The following restrictions may be
modified by the Trustees without shareholder approval. Each Fund may not:
1. Invest more than 15% of its net assets in illiquid securities. A security is
illiquid if it cannot be sold in seven business days at a price
approximately equal to the price at which the Fund is valuing the security.
Restricted securities and repurchase agreements with maturities in excess of
seven business days are subject to this 15% limitation.
2. Invest in other open-end investment companies except to the extent allowed
in the 1940 Act. Under the 1940 Act, funds may acquire securities of other
investment companies if, immediately after the acquisition, the fund does
not own in the aggregate (1) more than 3% of the total outstanding voting
stock of such other investment company, (2) more than 5% of the value of the
fund's total assets in any other investment company, or (3) securities
issued by such other investment companies having an aggregate value in
excess of 10% of the value of the fund's total assets.
3. Invest in a company for the purpose of exercising control or management of
the company.
4. Write or purchase options in excess of 5% of the value of the Fund's total
net assets.
5. Purchase securities on margin, except for such short-term credits as are
necessary for the clearance of transactions. The Funds may engage in short
sales against the box for tax strategy purposes.
Except with respect to 300% asset coverage for borrowing, whenever any
investment restriction states a maximum percentage of a Fund's assets that may
be invested in any security, such percentage limitation will be applied only at
the time the Fund acquires such security and will not be violated by subsequent
increases in value relative to other assets held by the Fund.
MANAGEMENT OF THE TRUST
TRUSTEES AND OFFICERS OF THE TRUST. The direction and supervision of the Trust
is the responsibility of the Board of Trustees. The Trustees have been elected
by the shareholders of the Trust. The Board establishes each Fund's policies and
oversees and reviews the management of each Fund. The Board meets regularly to
review the activities of the officers, who are responsible for day-to-day
operations of the Funds. The Board also reviews the various services provided by
the Advisor and the administrator to ensure that each Fund's general investment
policies and programs are being carried out and administrative services are
being provided in a satisfactory manner. The Trustees and officers of the Trust
and their principal occupations during the past five years are set forth below:
Positions Held with Principal Occupation
Name, Address and Age the Funds During the Past 5 Years
- ------------------------ ---------------------- --------------------------
Theodore E. Charles, 56* Chairman of the Board Chairman, Investors Capital
of Trustees, President Holdings (1995 to present);
and Trustee Chief Financial Officer,
Investor Capital
Corporation (1991 to
present); Director, Revere
Federal Savings Bank
(1996 to present).
Timothy B. Murphy, 35* Treasurer and Trustee President, Investors
Capital Corporation (1994
to present); President,
Eastern Point Advisors
(1995 to present);
Treasurer and Director,
Investors Capital Holdings
(1995 to present).
David Weller, 42 Secretary Compliance Officer and
Legal Counsel, Investors
Capital Corporation (1999
to present), Manager,
Compliance and Investment
Planning, Hancock Partners
Insurance, LLP (1995-1999),
Director of Advance Sales
And Compliance, Mony New
England (1991-1995).
Robert T. Martin, 32 Trustee Director of Operations,
Ipswich Brewing Co., (1995
to present); Manager,
Products for Research,
Inc., a scientific
equipment firm (1994-1995).
John S. Rando, Jr., 36 Trustee Owner/Manager, Wal-Lex
Shopping Center
(1986-present).
Arthur E. Stickney, 65 Trustee President and Treasurer,
Stickney & Associates,
Inc., an advertising firm
(1985-present); President
and Treasurer, Kenmore
Industries, an entryways
distributor (1985-present).
The mailing address for all Officers and Trustees of the Funds is c/o Investors
Capital Funds, 230 Broadway East, Suite 203, Lynnfield, MA 01940-2320.
* Trustee who may be deemed to be an "interested person" (as defined by the
Investment Company Act of 1940, as amended) of the Funds.
COMPENSATION OF TRUSTEES AND OFFICERS. Trustees and officers affiliated with the
Distributor or the Advisor are not compensated by the Trust for their services.
Each Trustee who is not an affiliated person of the Advisor or Distributor, as
defined in the 1940 Act, receives $500 per meeting attended, as well as
reimbursement for expenses incurred in connection with attendance at such
meetings.
The following table sets forth the compensation expected to be paid by the Trust
to the non-interested Trustees during the Funds' fiscal year ending September
30, 2000.
Total Compensation Total Compensation from
Name and Position from the Trust the Trust and Fund Complex
- ----------------- -------------- --------------------------
Robert T. Martin $2,000 $2,000
John S. Rando, Jr. $2,000 $2,000
Arthur E. Stickney $2,000 $2,000
The Trust does not compensate the Trustees and officers affiliated with the
Advisor for their services. The Funds do not have any retirement plan for their
Trustees.
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES. As of September 15, 1999,
there were no control persons or principal holders of securities of either of
the Funds. Control persons are those that own beneficially more than 25% of a
fund's outstanding shares. Principal holders are persons that own beneficially
5% or more of a fund's outstanding shares. On September 15, 1999, the Trustees
and officers, as a group, owned less than 1% of the outstanding shares of the
Trust, its series or classes.
INVESTMENT MANAGEMENT AND OTHER SERVICES
INVESTMENT ADVISOR. The Funds have employed Eastern Point Advisors, Inc. (the
"Advisor") as their investment advisor. As of June 30, 1999, the Advisor managed
approximately $100 million of assets, consisting primarily of non-discretionary
brokerage accounts. Through his ownership and voting control of more than 25% of
the outstanding shares of the Advisor and the Advisor's parent, Investors
Capital Holdings, Ltd., Theodore E. Charles is considered to control the
Advisor. Investors Capital Holdings, Ltd. is the parent corporation of Investors
Capital Corporation, the Funds' distributor.
In addition to managing each Fund's investments consistent with its investment
objectives, policies and limitations, the Advisor makes recommendations with
respect to other aspects and affairs of the Funds. The Advisor also furnishes
the Funds with certain administrative services, office space and equipment. All
other expenses incurred in the operation of the fund are borne by the Funds.
Under the Investment Advisory Agreement, the Advisor will not be liable for any
error of judgment or mistake of fact or law or for any loss by the Funds in
connection with the performance of the Investment Advisory Agreement, except a
loss from a breach of a fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from willful misfeasance, bad
faith or gross negligence on its part in the performance of its duties or from
reckless disregard of its obligations or duties under the Investment Advisory
Agreement.
For providing investment advisory and other services and assuming certain Fund
expenses, each Fund pays the Advisor a monthly fee at the annual rate of 1.50%
of the value of the Fund's average daily net assets. For the Funds' initial
fiscal year ending September 30, 2000, the Advisor has voluntarily agreed to
waive its fees and reimburse expenses so that the Fund's annual operating
expenses will not exceed 5.00% for the Investors Capital Internet Fund and 5.00%
for the Investors Capital Twenty Fund. The Advisor may terminate this waiver at
any time. Any waiver or reimbursement by the Advisor is subject to reimbursement
by the Funds within the following three years, to the extent such reimbursement
by the Funds would not cause total operating expenses to exceed any current
expense limitation. Additionally, the Advisor has agreed to reimburse all
expenses incurred in connection with the organization of the Funds, subject to
the same recapture provisions described above.
The Investment Advisory Agreement is for an initial term of two years and
continues in effect from year to year thereafter if such continuance is approved
annually by the Trustees or by a vote of a majority of the outstanding shares of
the Fund, and, in either case, by the vote of a majority of the Trustees who are
not parties to the Investment Advisory Agreement or "interested persons" of any
party to the Investment Advisory Agreement, voting in person at a meeting called
for the purpose of voting on such approval. The Investment Advisory Agreement
may be terminated at any time without penalty by the Trustees, by vote of a
majority of the outstanding shares of the fund or by the Advisor, upon sixty
days' written notice. The Investment Advisory Agreement terminates automatically
if assigned.
The Funds pay all expenses not assumed by the Advisor, including, but not
limited to: Trustees' expenses, audit fees, legal fees, interest expenses,
brokerage commissions, fees for registration and notification of shares for sale
with the Securities and Exchange Commission (the "SEC") and various state
securities commissions, taxes, insurance premiums, fees of the Fund's
administrator, transfer agent, fund accounting agent or other service providers,
and costs of obtaining quotations for portfolio securities and the pricing of
fund shares.
ADMINISTRATOR. First Data Investor Services Group, Inc., 3200 Horizon Drive,
King of Prussia, PA serves as administrator to the Funds pursuant to a Services
Agreement. Under the Services Agreement, the Administrator provides the Funds
with office space and personnel to assist the Funds in managing their affairs.
The administrator's duties require it to supervise the day-to-day administration
of matters necessary to each Fund's operations, maintenance of records and the
books of the Trust, preparation of reports, filings with the SEC and compliance
monitoring of its activities. For its services to the Funds, the administrator
is paid by the Funds at the following annual percentage of each Fund's average
daily net assets:
AVERAGE DAILY NET ASSETS ADMINISTRATION FEE
For amounts up to $50,000,000 0.15%
$50,000,000 to 100,000,000 0.10%
Over $100,000,000 0.05%
These fees are subject to an annual minimum of $55,000.
DISTRIBUTOR. The Advisor, on behalf of the Funds, has entered into a
Distribution Agreement with Investors Capital Corporation (the "Distributor").
Under the Distribution Agreement, the Distributor is obligated to use its best
efforts to sell shares of each class of the Funds. Shares of the Funds are also
sold by selected broker-dealers (the "Selling Brokers") who have entered into
selling agency agreements with the Distributor. The Distributor accepts orders
for the purchase of shares of the Funds, which are continually offered at net
asset value next determined, plus any applicable sales charge. The Distributor
may pay extra compensation to financial services firms selling large amounts of
Fund shares. This additional compensation would be calculated as a percentage of
Fund shares sold by the firm.
Under the Distribution Agreement, the Trust and the Funds may use the name
"Investors Capital" or any name derived from or similar to it only for so long
as the Distribution Agreement or any extension, renewal or amendment thereof
remains in effect. If the Distribution Agreement is no longer in effect, the
Trust and the Funds (to the extent that they lawfully can) will cease to use
such a name or any other name indicating that it is advised by or otherwise
connected with the Advisor.
DISTRIBUTION PLANS. The Trust has adopted distribution plans for the Class A and
Class C Shares of each Fund (the "Plans") in accordance with Rule 12b-1 under
the 1940 Act. The Plans compensate the Distributor for its services and
distribution expenses under the Distribution Agreement. The principal services
and expenses for which such compensation may be used include: compensation to
employees or account executives and reimbursement of their expenses; overhead
and telephone costs of such employees or account executives; printing of
prospectuses or reports for prospective shareholders; advertising; preparation,
printing and distribution of sales literature; and allowances to other
broker-dealers. A report of the amounts expended under each Plan is submitted to
and approved by the Trustees each quarter.
The Plans are subject to annual approval by the Trustees. The Plans are
terminable at any time by vote of the Trustees or by vote of a majority of the
shares of the applicable class or Fund. Pursuant to each Plan, a new Trustee who
is not an interested person (as defined in the 1940 Act) must be nominated by
existing Trustees who are not interested persons.
If a Plan is terminated (or not renewed) with respect to any one or more classes
or Funds, the Plan may continue in effect with respect to a class or fund as to
which it has not been terminated (or has been renewed). Although there is no
obligation for the Trust to pay expenses incurred by the Distributor in excess
of those paid to the Distributor under a Plan, if the Plan is terminated, the
Board will consider how to treat such expenses. Any expenses incurred by the
Distributor but not yet recovered through distribution fees could be recovered
through future distribution fees. If the Distributor's actual distribution
expenditures in a given year are less than the Rule 12b-1 payments it receives
from the funds for that year, and no effect is given to previously accumulated
distribution expenditures in excess of the Rule 12b-1 payments borne by the
Distributor out of its own resources in other years, the difference would be
profit to the Distributor for that year.
Because amounts paid pursuant to a Plan are paid to the Distributor, the
Distributor and its officers, directors and employees may be deemed to have a
financial interest in the operation of the Plans. None of the Trustees who are
not an interested person of the Trust has a financial interest in the operation
of any Plan.
The Plans were adopted because of their anticipated benefits to the Funds. These
anticipated benefits include: increased promotion and distribution of the Funds'
shares, an enhancement in each fund's ability to maintain accounts and improve
asset retention, increased stability of net assets for the Funds, increased
stability in each fund's positions, and greater flexibility in achieving
investment objectives. The costs of any joint distribution activities between
the Funds will be allocated between the Funds in proportion to their net
assets.
CUSTODIAN. The Bank of New York, 1 Wall Street, New York, NY 10286, serves as
custodian for the Funds. The custodian is responsible for, among other things,
safeguarding and controlling each Fund's cash and securities, handling the
receipt and delivery of securities and collecting interest and dividends on each
Fund's investments.
TRANSFER AGENT AND DIVIDEND PAYING AGENT. First Data Investor Services Group,
Inc, 211 S. Gulph Road, King of Prussia, PA 19406, is transfer and dividend
paying agent for the Funds.
INDEPENDENT ACCOUNTANTS. Briggs, Bunting & Dougherty, LLP, 2121 Two Logan
Square, 18th & Arch Streets, Philadelphia, Pennsylvania 19103-4901 are the
independent accountants for the Trust. In addition to reporting annually on the
financial statements of the Trust, the accountants assist and consult with the
Trust in connection with the preparation of certain filings of the Trust with
the SEC.
DESCRIPTION OF THE TRUST'S SHARES
The Trust is a business trust organized on July 14, 1999 under Delaware law. The
Trustees are responsible for the management and supervision of the Funds. The
Trust Instrument permits the Trustees to issue an unlimited number of full and
fractional shares of beneficial interest of the Funds, with $0.001 par value.
Under the Trust Instrument, the Trustees have the authority to create and
classify shares of beneficial interest in separate series, without further
action by shareholders. As of the date of this Statement of Additional
Information, the Trustees have authorized shares only of the Funds described in
the prospectus. Additional series may be added in the future. The Trust
Instrument also authorizes the Trustees to classify and reclassify the shares of
the Funds, or any other series of the Trust, into one or more classes.
Each share of a Fund represents an equal proportionate interest in the assets
belonging to that Fund and has equal dividend rights. When issued, shares are
fully paid and non-assessable. In the event of liquidation of a Fund,
shareholders are entitled to share pro rata in the net assets of the Fund
available for distribution to such shareholders. Shares of a Fund are freely
transferable and have no preemptive, subscription or conversion rights.
In accordance with the provisions of the Trust Instrument, the Trustees have
initially determined that shares entitle their holders to one vote per share on
any matter on which such shares are entitled to vote. The Trustees may determine
in the future, without the vote or consent of shareholders, that each dollar of
net asset value (number of shares owned times net asset value per share) will be
entitled to one vote on any matter on which such shares are entitled to vote.
Unless otherwise required by the 1940 Act or the Trust Instrument, the Funds
have no intention of holding annual meetings of shareholders. Shareholders may
remove a Trustee by the affirmative vote of at least two-thirds of the Trust's
outstanding shares. At any time that less than a majority of the Trustees
holding office were elected by the shareholders, the Trustees will call a
special meeting of shareholders for the purpose of electing Trustees.
BROKERAGE
The Funds intend to place substantially all of their securities transactions
through their affiliated Distributor in accordance with procedures set forth in
Rule 17e-1 under the 1940 Act. These procedures, which have been adopted by the
Trustees, including a majority of the non-interested Trustees, are reasonably
designed to provide that any commissions, fees or other compensation paid to the
Distributor are fair and reasonable when compared to commissions, fees and other
compensation received from other firms who engage in comparable transactions.
The Funds will not effect transactions with the Distributor acting as principal
for its own account.
The Advisor may also use non-affiliated brokers, dealers or members of a
securities exchange to execute portfolio transactions on behalf of the Funds.
Purchases and sales of portfolio securities are generally placed with
broker-dealers who provide the best price (including brokerage commissions) and
execution for orders. Transactions may also be allocated to broker-dealers who
provide research. Higher fees may be paid to brokers that do not furnish
research or furnish less valuable research if a good faith determination is made
that the commissions paid are reasonable in relation to the value of the
brokerage and research services provided. Among these services are those that
brokerage houses customarily provide to institutional investors, such
statistical and economic data and research reports on companies and industries.
PURCHASE, REDEMPTION AND PRICING OF SHARES
PURCHASE OF SHARES. Each Fund offers Class A and Class C shares. The Trustees
and officers reserve the right to change or waive a Fund's minimum investment
requirements and to reject any order to purchase shares (including purchases by
exchange) when in their judgment the rejection is in the Fund's best interest.
INITIAL SALES CHARGES ON CLASS A SHARES. Class A shares are offered at a price
equal to their net asset value plus a sales charge which is imposed at the time
of purchase. The sales charges applicable to purchases of shares of Class A
shares of each Fund are described in the prospectus. Up to 100% of the sales
charge may be re-allowed to dealers who achieve certain levels of sales or who
have rendered coordinated sales support efforts. These dealers may be deemed
underwriters. Other dealers will receive the following compensation:
Amount Invested Dealer Concession as a %
of Offering Price of
Shares Purchased
Less than $50,000 5.00%
$50,000 but less than $100,000 4.00%
$100,000 but less than $500,000 3.00%
$500,000 but less than $1,000,000 2.00%
$1,000,000 or more 1.00%
OBTAINING A REDUCED SALES CHARGE FOR CLASS A SHARES. Methods of obtaining a
reduced sales charge referred to in the prospectus are described in more detail
below.
No sales charge will be imposed on increases in net asset value, dividends or
capital gain distributions, or reinvestment of distributions in additional Class
A shares.
RIGHTS OF ACCUMULATION (Class A Shares). If you already hold Class A shares, you
may qualify for a reduced sales charge on your purchase of additional Class A
shares. If the value of the Class A shares you currently hold plus the amount
you wish to purchase is $50,000 or more, the sales charge on the Class A shares
being purchased will be at the rate applicable to the total aggregate amount.
The Distributor's policy is to give investors the lowest commission rate
possible under the sales charge structure. However, to take full advantage of
rights of accumulation, at the time of placing a purchase order, the investor or
his dealer must request the discount and give the Distributor sufficient
information to determine and confirm whether the purchase qualifies for the
discount. Rights of accumulation may be amended or terminated at any time as to
all purchases occurring thereafter.
LETTER OF INTENT (Class A Shares). If you intend to purchase Class A shares
valued at $50,000 or more during a 13-month period, you may make the purchases
under a Letter of Intent so that the initial Class A shares you purchase qualify
for the reduced sales charge applicable to the aggregate amount of your
projected purchase. Your initial purchase must be at least 5% of the intended
purchase. Purchases made within 90 days before the signing of the Letter of
Intent may be included in such total amount and will be valued on the date of
the Letter of Intent. The Letter of Intent will not impose a binding obligation
to buy or sell shares on either the purchaser or the Fund.
During the period of the Letter of Intent, the transfer agent will hold shares
representing 3% of the intended purchase in escrow to provide payment of
additional sales charges that may have to be paid if the total amount purchased
under the Letter of Intent is reduced. These shares will be released upon
completion of the intended investment. If the total Class A shares covered by
the Letter of Intent are not purchased, a price adjustment is made, depending
upon the actual amount invested within the period covered by the Letter of
Intent, by a redemption of sufficient shares held in escrow for the account of
the investor. A Letter of Intent can be amended: (a) during the 13-month period
if the purchaser files an amended Letter of Intent with the same expiration date
as the original; and (b) automatically after the end of the period, if the total
purchases of Class A shares credited to the Letter of Intent qualify for an
additional reduction in the sales charge. For more information concerning the
Letter of Intent, see the application form or contact the Distributor.
SALES CHARGE WAIVERS (CLASS A SHARES). Under certain conditions, Class A shares
may be sold without a sales charge to officers, directors, trustees and
employees of the Advisor, the Fund's distributor and any of their affiliated
companies, and immediate family members of any of these people. Class A shares
may also be sold without a sales charge to individuals with an investment
account or relationship with the Advisor; fee-based financial planners acting
for the account of their clients; broker-dealers who have entered into selling
agreements with the Distributor for their own accounts; and banks and other
financial institutions that have entered into agreements with the Funds to
provide shareholder services for customers.
CLASS C SHARE PURCHASES. Purchases of Class C shares will be processed at net
asset value next determined after receipt of your purchase order. Class C shares
are not subject to an initial sales charge, but may pay higher fees than Class A
shares. Class C shares are subject to a 1.00% redemption fee for a period of 12
months based upon the anniversary date of purchase.
TERMS OF REDEMPTIONS. The amount of your redemption proceeds will be based on
the net asset value per share next computed after the Distributor, the Funds or
the transfer agent receives the redemption request in proper form. Payment for
your redemption normally will be mailed to you, except as provided below. Your
redemption proceeds will normally be mailed or wired the day after your
redemption is processed. If you have purchased shares by check, the payment of
your redemption proceeds may be delayed until the purchase check has cleared,
which may take fifteen or more days. This potential delay can be avoided by
purchasing shares with federal funds or a certified check.
Beneficial owners of shares held of record in the name of the Distributor or a
participating dealer may redeem their shares only through that firm. The right
of redemption may be suspended or the date of payment postponed under certain
emergency or extraordinary situations, such as suspension of trading on the New
York Stock Exchange, or when trading in the markets a Fund normally uses is
restricted or an emergency exists, as determined by the SEC, so that disposal of
a Fund's assets or determination of its net asset value is not reasonably
practicable, or for such other periods as the Commission by order may permit.
Each Fund reserves the right to redeem your account if its value is less than
$250 due to redemptions. The affected Fund will give the shareholder 30 days'
notice to increase the account value to at least $250. Redemption proceeds will
be mailed in accordance with the procedures described above.
REDEMPTIONS-IN-KIND. Although the Funds would not normally do so, each Fund has
the right to pay the redemption price of shares of the Fund in whole or in part
in portfolio securities as prescribed by the Trustees. When the shareholder
sells portfolio securities received in this fashion, a brokerage charge would be
incurred. The Funds will value securities distributed in an in-kind redemption
at the same value as is used in determining NAV.
REDEMPTION FEES (CLASS A AND CLASS C SHARES). To discourage short-term trading,
purchases of Class A and Class C shares are subject to a 1.00% redemption fee on
shares redeemed within 12 months of acquisition. Redemption fees are not imposed
on shares acquired through the reinvestment of dividends or capital gains
distributions or involuntary redemptions. Redemption fees are paid to the Funds
to help defray transaction costs.
WAIVER OF REDEMPTION FEES (CLASS A AND CLASS C SHARES). The redemption fee will
be waived in the event of redemptions following the death or disability of a
shareholder as defined in Section 72(m)(7) of the Internal Revenue Code, as
amended.
REINSTATEMENT PRIVILEGE (CLASS A SHARES)
A shareholder of Class A shares who has redeemed such shares and has not
previously exercised the reinstatement privilege may reinvest any portion or all
the redemption proceeds in Class A shares at net asset value, provided that such
reinstatement occurs within 120 calendar days after such redemption and the
account meets the minimum account size requirement. This privilege may be
modified or terminated at any time by the Funds.
In order to use this privilege, the shareholder must clearly indicate by written
request to the applicable Fund that the purchase represents a reinvestment of
proceeds from previously redeemed Class A shares. If a shareholder realizes a
gain on redemption of shares, this gain is taxable for federal income tax
purposes even if all of such proceeds are reinvested. If a shareholder incurs a
loss on a redemption and reinvests the proceeds in the same Fund, part or all of
such loss may not be deductible for such tax purposes. Redemption fees are not
reimbursed in the event of using the reinstatement privilege.
THE REINSTATEMENT PRIVILEGE MAY BE USED BY EACH SHAREHOLDER ONLY ONCE,
REGARDLESS OF THE NUMBER OF SHARES REDEEMED OR REPURCHASED. However, the
privilege may be used without limit in connection with transactions for the sole
purpose of transferring a shareholder's interest in a Fund to his or her
Individual Retirement Account or other tax-qualified retirement plan account.
NET ASSET VALUE
Each Fund determines its net asset value per share (NAV) each business day at
the close of regular trading (currently 4:00 p.m. eastern time) on the New York
Stock Exchange (NYSE) by dividing the Fund's net assets by the number of its
shares outstanding. If the NYSE closes early, the Funds accelerate the
determination of NAV to the closing time. The Funds use the following procedures
for purposes of calculating the NAV of Fund shares.
The Funds generally value equity securities traded on a national exchange or the
Nasdaq Stock Market at their last sale price on the day of valuation. The Funds
generally value equity securities for which no sales are reported on a valuation
day, and securities traded over-the-counter, at the last available bid price.
The Funds value debt securities on the basis of valuations furnished by a
principal market maker or a pricing service, both of which generally use
electronic data processing techniques (matrix pricing) to value normal
institutional size trading units of debt securities without exclusive reliance
upon quoted prices.
The Funds value short-term debt instruments that have a remaining maturity of 60
days or less at the time of purchase at amortized cost, which approximates
market value.
The Funds may determine the fair value of any security in good faith in
accordance with procedures approved by the Trustees if market quotations are not
readily available, or if in the opinion of the Advisor any quotation or market
price is not representative of true market value.
The Funds value foreign securities, if any, on the basis of quotations from the
primary market in which they are traded. The Funds' custodian translates assets
or liabilities expressed in foreign currencies into U.S. dollars based on London
currency quotations as of 5:00 p.m., London time (12:00 noon, New York time) on
the date of determining a Fund's NAV. If quotations are not readily available,
or the value of foreign securities has been materially affected by events
occurring after the closing of a foreign market, the Funds may value their
assets by a method that the Trustees believe accurately reflects fair value.
On any day an international market is closed and the NYSE is open, any foreign
securities will be valued at the prior day's close with the current day's
exchange rate. Trading of foreign securities may take place on Saturdays and
U.S. business holidays on which a Fund's NAV is not calculated. Consequently, a
fund's portfolio securities may trade and the NAV of that Fund's shares may be
significantly affected on days when a shareholder has no access to that Fund.
TAXES
Below is a discussion of certain U.S. federal income tax issues concerning the
funds and the purchase, ownership, and disposition of fund shares. This
discussion does not purport to deal with all aspects of federal income taxation
relevant to shareholders in light of their particular circumstances. This
discussion is based upon the Internal Revenue Code of 1986, as amended (the
"Code"), the regulations promulgated thereunder, and judicial and administrative
ruling authorities, all of which are subject to change, which change may be
retroactive. Prospective investors should consult their own tax advisors with
regard to the federal tax consequences of the purchase, ownership, or
disposition of fund shares, as well as the tax consequences arising under the
laws of any state, foreign country, or other taxing jurisdiction.
TAX STATUS OF THE FUNDS. The Funds intend to be taxed as a regulated investment
company under Subchapter M of the Code. Accordingly, each Fund must, among other
things, (a) derive in each taxable year at least 90% of its gross income from
dividends, interest, payments with respect to certain securities loans, and
gains from the sale or other disposition of stock, securities or foreign
currencies, or other income derived with respect to its business of investing in
such stock, securities or currencies; and (b) diversify its holdings so that, at
the end of each fiscal quarter, (i) at least 50% of the value of the fund's
total assets is represented by cash and cash items, U.S. Government securities,
the securities of other regulated investment companies and other securities,
with such other securities limited, in respect of any one issuer, to an amount
not greater than 5% of the value of the fund's total assets and 10% of the
outstanding voting securities of such issuer, and (ii) not more than 25% of the
value of its total assets is invested in the securities of any one issuer (other
than U.S. Government securities and the securities of other regulated investment
companies). If the funds fail to qualify as a regulated investment company, the
funds will be subject to U.S. federal income tax.
As a regulated investment company, the funds generally are not subject to U.S.
federal income tax on income and gains that it distributes to shareholders, if
at least 90% of the fund's investment company taxable income (which includes,
among other items, dividends, interest and the excess of any net short-term
capital gains over net long-term capital losses) for the taxable year is
distributed to shareholders. The funds intend to distribute substantially all of
such income. Given the investment objectives of the Funds, dividend income will
not be substantial.
Amounts not distributed in accordance with certain requirements are subject to a
nondeductible 4% excise tax at the fund level. To avoid the tax, each fund must
distribute during each calendar year an amount equal to the sum of (1) at least
98% of its ordinary income (not taking into account any capital gains or losses)
for the calendar year, (2) at least 98% of its capital gains in excess of its
capital losses (adjusted for certain ordinary losses) for a one-year period
generally ending on October 31 of the calendar year, and (3) all ordinary income
and capital gains for previous years that were not distributed during such
years. The funds intend to avoid application of the excise tax.
A distribution will be treated as paid on December 31 of a calendar year if it
is declared by the fund in October, November or December of that year with a
record date in such a month and paid by the fund during January of the following
year. Such distributions will be taxable to shareholders in the calendar year in
which the distributions are declared, rather than the calendar year in which the
distributions are received.
DISTRIBUTIONS. Distributions of investment company taxable income are taxable to
a U.S. shareholder as ordinary income, whether paid in cash or shares. Dividends
paid by the funds to a corporate shareholder, to the extent such dividends are
attributable to dividends received by the funds from U.S. corporations, may,
subject to limitation, be eligible for the dividends received deduction.
However, the alternative minimum tax applicable to corporations may reduce the
value of the dividends received deduction.
The excess of net long-term capital gains over the short-term capital losses
realized and distributed by a fund, whether paid in cash or reinvested in fund
shares, will generally be taxable to shareholders as long-term gain, regardless
of how long a shareholder has held fund shares. Net capital gains from assets
held for one year or less will be taxed as ordinary income.
Shareholders will be notified annually as to the U.S. federal tax status of
distributions, and shareholders receiving distributions in the form of newly
issued shares will receive a report as to the net asset value of the shares
received.
If the net asset value of shares is reduced below a shareholder's cost as a
result of a distribution by the fund, such distribution generally will be
taxable even though it represents a return of invested capital. Investors should
be careful to consider the tax implications of buying shares of the fund just
prior to a distribution. The price of shares purchased at this time will include
the amount of the forthcoming distribution, but the distribution will generally
be taxable to the shareholder.
DISPOSITIONS. Upon a redemption or sale of shares of the fund, a shareholder may
realize a taxable gain or loss depending upon his or her basis in the shares. A
gain or loss will be treated as capital gain or loss if the shares are capital
assets in the shareholder's hands, and the rate of tax will depend upon the
shareholder's holding period for the shares. Any loss realized on a redemption,
sale or exchange will be disallowed to the extent the shares disposed of are
replaced (including through reinvestment of dividends) within a period of 61
days, beginning 30 days before and ending 30 days after the shares are disposed
of. In such a case the basis of the shares acquired will be adjusted to reflect
the disallowed loss. If a shareholder holds fund shares for six months or less
and during that period receives a distribution taxable to the shareholder as
long-term capital gain, any loss realized on the sale of such shares during such
six-month period would be a long-term loss to the extent of such distribution.
BACKUP WITHHOLDING. The Funds generally will be required to withhold federal
income tax at a rate of 31% ("backup withholding") from dividends paid, capital
gain distributions, and redemption proceeds to shareholders if (1) the
shareholder fails to furnish the fund with the shareholder's correct taxpayer
identification number or social security number, (2) the IRS notifies the
shareholder or the fund that the shareholder has failed to report properly
certain interest and dividend income to the IRS and to respond to notices to
that effect, or (3) when required to do so, the shareholder fails to certify
that he or she is not subject to backup withholding. Any amounts withheld may be
credited against the shareholder's federal income tax liability. The Funds, the
Distributor or the transfer agent will not be able to recredit the account for
any amount withheld.
OTHER TAXATION. Distributions may be subject to additional state, local and
foreign taxes, depending on each shareholder's particular situation. Non-U.S.
shareholders may be subject to U.S. tax rules that differ significantly from
those summarized above, including the likelihood that ordinary income dividends
to them would be subject to withholding of U.S. tax at a rate of 30% (or a lower
treaty rate, if applicable).
DETERMINATION OF PERFORMANCE
AVERAGE ANNUAL TOTAL RETURN
The Funds may quote their performance in terms of average annual total return in
communications to shareholders, or in advertising material. Average annual total
return is calculated according to the following formula:
P (1 + T)n = ERV
Where:
P = a hypothetical initial payment of $1,000,
T = average annual total return, and
n = number of years.
ERV=ending redeemable value of a hypothetical $1,000 payment made at the
beginning of the 1-, 5-, or 10-year periods at the end of the 1-, 5-, or 10-year
periods (or fractional portion).
In calculating the above, it is assumed that the maximum sales load (or other
charges deducted from payments) is deducted from the initial $1,000 payment and
all recurring fees that are charged to all shareholder accounts are included. It
is also assumed that all dividends and capital gains distributions made by the
Fund during the period are reinvested in additional shares.
Each Fund's performance depends on market conditions, portfolio composition and
expenses. Investment yields, current distributions or total returns may differ
from past results, and there is no assurance that historical performance will
continue.
A Fund may also quote its yield in advertisements and investor communications.
The yield computation is determined by dividing the net investment income per
share earned during a recent 30-day (or one month) period by the maximum
offering price per share on the last day of that period and annualizing the
resulting figure, according to the following formula:
a-b 6
YIELD = 2 [(--- +1) -1]
cd
Where:
a - dividends and interest earned during the period;
b - expenses accrued for the period (net of reimbursements)
c - the average daily number of shares outstanding during the period
that were entitled to receive dividends; and
d - the maximum offering price per share on the last day of the
period.
FINANCIAL STATEMENTS
REPORTS TO SHAREHOLDERS. Shareholders will receive unaudited semi-annual reports
describing the funds' investment operations and annual financial statements
audited by independent certified public accountants.
<PAGE>
INVESTORS CAPITAL TWENTY FUND
STATEMENT OF ASSETS AND LIABILITIES
October 8, 1999
- --------------------------------------------------------------------------------
ASSETS
Cash $100,000
LIABILITIES --
NET ASSETS $ 100,000
========
COMPUTATION OF OFFERING PRICE:
Net asset value and redemption price per share
Class A (net assets of $100,000 divided by 10,000
shares outstanding) $ 10.00
========
Offering price (a)
Class A (net asset value per share of $10.00
divided by 94.25%) $ 10.61
========
At October 8, 1999 the components of net assets
were as follows:
Paid-in capital $100,000
========
(a) On investments of $50,000 or more the offering price is reduced.
See notes to statement of assets and liabilities
<PAGE>
INVESTORS CAPITAL TWENTY FUND
NOTES TO STATEMENT OF ASSETS AND LIABILITIES
October 8, 1999
- --------------------------------------------------------------------------------
(1) ORGANIZATION
Investors Capital Funds (the "Trust") was organized as a Delaware business
trust on July 14, 1999 and is registered under the Investment Company Act
of 1940 (the "1940 Act") as a non-diversified open-end management
investment company. The Trust currently consists of two non-diversified
series: the Investors Capital Twenty Fund (the "Fund") and the Investors
Capital Internet Fund. Between the date of organization and October 8,
1999, the Fund had no operations other than those relating to
organizational matters and the sale of 10,000 Class A shares to Eastern
Point Advisors, Inc. ("Eastern Point"), the Trust's advisor, for $100,000.
The Trust is authorized to issue an unlimited number of shares of
beneficial interest of $.001 par value. The Fund currently offers two
Classes of shares ("Class A" and "Class C"). Each Class of shares has equal
rights as to earnings, assets and voting privileges, except that each Class
bears different distribution expenses. Each Class of shares has exclusive
voting rights with respect to matters that affect just that Class. Income,
expenses (other than expenses attributable to a specific Class) and
realized and unrealized gains or losses on investments are allocated to
each Class of shares based on relative net assets.
(2) SIGNIFICANT ACCOUNTING POLICIES
The Fund seeks long-term growth of capital by investing primarily in common
stocks selected for their growth potential. The Fund normally concentrates
its investments in a core group of 20-30 common stocks. Due to the inherent
risk in any investment program, the Fund cannot ensure that its investment
objectives will be realized.
The following is a summary of significant accounting policies consistently
followed by the Fund in the preparation of its financial statement.
A. FEDERAL INCOME TAXES
It is the policy of the Fund to comply with the requirements of
Internal Revenue Code applicable to regulated investment companies
and to distribute substantially all of its taxable income to its
shareholders in a manner which results in no tax to the Fund.
Therefore, no federal income or excise tax provision is required.
B. ORGANIZATION EXPENSES
Eastern Point has agreed to bear all of the costs incurred in
connection with the organization and registration of the Trust's
shares.
C. USE OF ESTIMATES
In preparing financial statements in accordance with generally
accepted accounting principles, management is required to make
estimates and assumptions that affect the reported amounts of assets
and liabilities and the disclosure of contingent assets and
liabilities at the date of the financial statements. Actual results
could differ from those estimates.
<PAGE>
INVESTORS CAPITAL TWENTY FUND
NOTES TO STATEMENT OF ASSETS AND LIABILITIES - (Continued)
October 8, 1999
- --------------------------------------------------------------------------------
(3) INVESTMENT ADVISOR
Eastern Point Advisors, Inc. serves as the Fund's advisor. Pursuant to the
terms of the Investment Advisory Agreement, Eastern Point shall have full
discretion to manage the assets of the Fund in accordance with its
investment objective. As compensation for its services Eastern Point
receives, on a monthly basis, an investment advisory fee calculated at the
annual rate of 1.50% of the Fund's average daily net assets.
Eastern Point has also voluntarily agreed to waive its advisory fees or
reimburse other Fund expenses so that the Fund's annual operating expenses
will not exceed 5.00% of the Fund's average daily net assets. This waiver
may be terminated by Eastern Point at any time.
(4) ADMINISTRATOR
First Data Investors Services Group, Inc. (the "Administrator") serves as
the Fund's administrator pursuant to a service agreement. Under the
agreement, the Administrator provides the Fund with office space and
personnel to assist the Fund in managing its daily business affairs. As
compensation for its services, the Administrator receives a monthly fee
calculated at the annual rate of 0.15% on the first $50 million of the
Fund's average daily net assets, subject to a minimum annual fee of
$55,000. The fee is reduced on average daily net assets in excess of $50
million.
(5) DISTRIBUTION PLAN AND OTHER TRANSACTIONS WITH AFFILIATES
Investors Capital Corporation (the "Distributor") serves as the Fund's
principal distributor pursuant to a Distribution Agreement. The Distributor
is an affiliate of Eastern Point.
Class A - The Class A shares of the Fund have adopted a Rule 12b-1
Distribution Plan (the "Class A Plan") pursuant to Rule 12(b)-1 under the
1940 Act. The Class A Plan provides that the Fund will compensate the
Distributor for payments to dealers or others a distribution fee at the
rate of 0.25% per annum of the average daily net assets of the Class A
shares of the Fund. The fees payable under the Class A Plan shall be used
to compensate the Distributor for any expenses primarily intended to result
in the sale of the Fund's shares, including, but not limited to: payments
the Distributor makes to broker-dealers or other financial institutions and
industry professionals for providing distribution assistance and
administrative support services to the holders of the Fund's Class A
shares, payments made for the preparation, printing and distribution of
advertisements and sales literature, and payments made for printing and
distributing prospectuses and shareholders reports to other than existing
shareholders of the Fund.
Class C - The Class C shares of the Fund have also adopted a Rule 12b-1
Distribution Plan (the "Class C Plan") pursuant to Rule 12(b)-1 under the
1940 Act. The Class C Plan provides that the Fund will compensate the
Distributor for payments to dealers or others a distribution fee at the
rate of 0.75% per annum of the average daily net assets of the Class C
shares of the Fund. The fees payable under the Class C Plan shall be used
to compensate the Distributor for any expenses primarily intended to result
in the sale of the Fund's shares, including, but not limited to: payments
the Distributor makes to broker-dealers or other financial institutions and
industry professionals for providing distribution assistance and
administrative support services to the holders of the Fund's
<PAGE>
INVESTORS CAPITAL TWENTY FUND
NOTES TO STATEMENT OF ASSETS AND LIABILITIES - (Continued)
October 8, 1999
- --------------------------------------------------------------------------------
Class C shares, payments made for the preparation, printing and
distribution of advertisements and sales literature, and payments made for
printing and distributing prospectuses and shareholders reports to other
than existing shareholders of the Fund.
The Class C Plan also provides that the Fund will compensate the
Distributor with a servicing fee at the rate of 0.25% per annum of the
average daily net assets of the Class C shares of the Fund. The servicing
fee shall be used to pay, among other things, for assisting in establishing
and maintaining customer accounts and records; assisting with purchase and
redemption requests; arranging for bank wires; monitoring dividend payments
from the Trust on behalf of customers, furnishing personal services and
maintaining shareholder accounts, facilitating certain shareholder
communications from the Trust to customers; receiving and answering
correspondence; and aiding in maintaining the investment of the Fund's
Class C shareholders.
An officer of the Trust is also an officer and has a more than 25%
ownership interest in both Eastern Point and the Distributor.
(6) REDEMPTION FEES
Class A shares redeemed within twelve months of their purchase are subject
to a 1.00% redemption fee which is payable to the Fund. Class C shares
redeemed within eighteen months of their purchase are subject to a 1.50%
redemption fee which is also payable to the Fund. Redemption fees are not
imposed on the redemption of shares acquired through the reinvestment of
dividends or capital gain distributions. Redemption fees are also waived on
redemptions following the death or disability of a Fund shareholder.
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Shareholders and Board of Trustees of
Investors Capital Funds
Lynnfield, Massachusetts
We have audited the accompanying statement of assets and liabilities of the
Investors Capital Twenty Fund (one of the funds constituting the Investors
Capital Funds) as of October 8, 1999. This financial statement is the
responsibility of the Fund's management. Our responsibility is to express an
opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the statement of assets and liabilities is free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the statement of assets and
liabilities. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe our audit provides a reasonable
basis for our opinion.
In our opinion, the statement of assets and liabilities referred to above
presents fairly, in all material respects, the financial position of the
Investors Capital Twenty Fund of the Investors Capital Funds as of October 8,
1999 in conformity with generally accepted accounting principles.
BRIGGS, BUNTING & DOUGHERTY, LLP
Philadelphia, Pennsylvania
October 8, 1999
<PAGE>
APPENDIX A -- DESCRIPTIONS OF SECURITIES RATINGS
COMMERCIAL PAPER RATINGS.
MOODY'S INVESTORS SERVICE, INC. (MOODY'S): "PRIME-1" and "PRIME-2" are
Moody's two highest commercial paper rating categories. Moody's evaluates the
salient features that affect a commercial paper issuer's financial and
competitive position. The appraisal includes, but is not limited to the review
of such factors as:
1. Quality of management.
2. Industry strengths and risks.
3. Vulnerability to business cycles.
4. Competitive position.
5. Liquidity measurements.
6. Debt structures.
7. Operating trends and access to capital markets.
Differing degrees of weight are applied to the above factors as deemed
appropriate for individual situations.
STANDARD & POOR'S RATINGS GROUP, A DIVISION OF MCGRAW-HILL COMPANIES,
INC. (S&P): "A-1" and "A-2" are S&P's two highest commercial paper rating
categories and issuers rated in these categories have the following
characteristics:
1. Liquidity ratios are adequate to meet cash requirements.
2. Long-term senior debt is rated A or better.
3. The issuer has access to at least two additional channels of
borrowing.
4. Basic earnings and cash flow have an upward trend with allowance
made for unusual circumstances.
5. Typically, the issuer is in a strong position in a well-established
industry or industries.
6. The reliability and quality of management is unquestioned.
Relative strength or weakness of the above characteristics determine whether an
issuer's paper is rated "A-1" or "A-2". Additionally, within the "A-1"
designation, those issues determined to possess overwhelming safety
characteristics are denoted with a plus (+) rating category.
<PAGE>
INVESTORS CAPITAL FUNDS
PART C - OTHER INFORMATION
Item 23. Exhibits:
(a) Trust Instrument -- Incorporated herein by reference to
Exhibit No. 23(a) to the Trust's Initial Registration
Statement filed electronically on July 29, 1999.
(a)(1) Certificate of Trust -- Incorporated herein by reference to
Exhibit No. 23(a)(1) to the Trust's Initial Registration
Statement filed electronically on July 29, 1999.
(b) By-Laws -- Incorporated by reference to Exhibit No. 23(b) to
the Trust's Initial Registration Statement filed July 29,
1999.
(c) Instruments Defining Rights of Security Holders -- Not
applicable
(d) Investment Advisory Contract -- Filed herewith electronically.
(e) Distribution Agreement -- Filed herewith electronically.
(f) Bonus or Profit Sharing Contracts -- None.
(g) Custodian Agreement -- Filed herewith electronically.
(h) Other Material Contracts
a. Services Agreement to provide for Transfer Agency
Services, Administration Services, Accounting Services
and Custody Administration -- Filed herewith
electronically.
(i) Legal Opinion -- Filed herewith electronically.
(j) Consent of Independent Accountants -- Filed herewith
electronically.
(k) Omitted Financial Statements -- None
(l) Initial Capital Agreements -- Filed herewith electronically.
(m) Rule 12b-1 Plan -- Filed herewith electronically.
(n) Financial Data Schedule -- Not applicable.
(o) Rule 18f-3 Plan -- Filed herewith electronically.
(p) Powers of Attorney -- Filed herewith electronically.
Item 24. Persons Controlled by or under Common Control with Registrant.
None
Item 25. Indemnification.
Trust Instrument (Article IX, Section 2) limits the liabilities of a
Trustee to that of gross negligence and in the event a Trustee is sued
for his or her activities concerning the Trust, the Trust will
indemnify that Trustee to the fullest extent permitted by Section 3817
of Chapter 38 of Title 12 of the Delaware Code, except if a Trustee
engages in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her
office.
The Registrant intends to purchase Errors and Omissions insurance with
Directors and Officers liability coverage.
Item 26. Business and Other Connections of the Investment Adviser.
Eastern Point Advisors, Inc. (the "Advisor"), is a registered
investment adviser incorporated on December 4, 1995. The Advisor is
primarily engaged in the investment advisory business. The Funds are
the only registered investment company to which the Advisor serves as
investment adviser. Information as to the officers and directors of
the Advisor is included in its Form ADV filed July 14, 1999 with the
Securities and Exchange Commission (Registration Number 801-48771) and
is incorporated herein by reference.
Item 27. Principal Underwriters.
(a) Investors Capital Corporation, 230 Broadway East, Suite 203,
Lynnfield, Massachusetts 01940 serves as distributor of the shares of
the Funds. The distributor currently does not act as principal
underwriter for any other registered investment companies. Theodore E.
Charles is considered to have a controlling interest in Investors
Capital Corporation by virtue of his majority ownership interest in
Investors Capital Holding, Ltd, the parent corporation of Investors
Capital Corporation.
(b) The following table sets forth information concerning each
director and officer of the Registrant's principal underwriter,
Investors Capital Corporation:
Positions
Name and Principal Positions and Offices and Offices
Business Address with Underwriter with Registrant
---------------- ---------------- ---------------
Theodore E. Charles Chairman of the Board, Chairman of the
and Chief Executive Officer Board and
President
Timothy B. Murphy Director and President Treasurer
Janice M. Charles Director and Treasurer None
* All addresses are Investors Capital Corporation, 230 Broadway East,
Suite 203, Lynnfield, Massachusetts 01940 unless otherwise indicated.
(c) Investors Capital Corporation. is an affiliated person of the
Registrant.
Item 28. Location of Accounts and Records.
The accounts, books, or other documents required to be maintained by
Section 31(a) of the 1940 Act and the Rules 17 CFR 270.31a-1 to 31a-3
promulgated thereunder, are maintained by the Advisor at . Certain
records, including records relating to Registrant's shareholders are
maintained at the Trust's Administrator, Transfer Agent, and Fund
Accounting Agent, First Data Investor Services Group, 3200 Horizon
Drive, P.O. Box 61503, King of Prussia, PA 19406-0903. Records
relating to the physical possession of securities are maintained by
the Trust's Custodian, THE BANK OF NEW YORK, 48 WALL STREET, NEW YORK,
NEW YORK 10286.
Item 29. Management Services. Not Applicable.
Item 30. Undertakings. Not Applicable.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, and the
Investment Company Act of 1940, as amended, the Registrant has duly caused this
Registration Statement on Form N-1A to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Lynnfield and the
Commonwealth of Massachusetts on this 15th day of October, 1999.
INVESTORS CAPITAL FUNDS
(Registrant)
By: Theodore E. Charles*
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
Theodore E. Charles* President, Principal October 15, 1999
Executive Officer
and Trustee
Timothy B. Murphy* Principal Financial and October 15, 1999
Accounting Officer
Robert T. Martin* Trustee October 15, 1999
John S. Rando, Jr.* Trustee October 15, 1999
Arthur E. Stickney* Trustee October 15, 1999
*By: Carolyn F. Mead, Esq.,
as Attorney-in-Fact
October 15, 1999
<PAGE>
INVESTORS CAPITAL FUNDS
EXHIBIT INDEX TO PART "C"
OF
REGISTRATION STATEMENT
Item No. Description
- -------- -----------
23(d) Investment Advisory Contract
23(e) Distribution Agreement
23(g) Custodian Agreement
23(h) Services Agreement to provide for Transfer Agency Services,
Administration Services, Accounting Services and Custody
Administration.
23(i) Legal Opinion
23(j) Consent of Independent Accountant
23(l) Initial Capital Agreement
23(m) Rule 12b-1 Plan
23(o) Rule 18f-3 Plan
23(p) Powers-of-Attorney
<PAGE>
EXHIBIT 23(d)
INVESTMENT ADVISORY AGREEMENT
This Investment Advisory Agreement made as of the 23rd day of
September, 1999, by and between Investors Capital Funds, a Delaware business
trust (hereinafter called the "Trust"), on behalf of each series of the Trust
listed in Schedule A hereto, as such may be amended from time to time
(hereinafter referred to individually as a "Fund" and collectively as the
"Funds") and Eastern Point Advisors, Inc. a Massachusetts Corporation
(hereinafter called the "Advisor").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Advisor is registered as an investment advisor under the
Investment Advisors Act of 1940, as amended;
WHEREAS, the Trust desires to retain the Advisor to render investment
advisory services to the Funds pursuant to the terms and provisions of this
Agreement, and the Advisor is interested in furnishing said services;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Appointment. The Trust hereby appoints the Advisor to act as
investment advisor to the Funds for the period and on the terms and subject to
the conditions set forth in this Agreement. The Advisor accepts such appointment
and agrees to furnish the services herein set forth for the compensation herein
provided. Additional investment portfolios may from time to time be added to
those covered by this Agreement by the parties executing a new Schedule A that
shall become effective upon its execution and shall supersede any Schedule A
having an earlier date.
2. Investment Advisory Services: Subject to the supervision of the
Trust's Trustees (the "Trustees"), the Advisor shall provide a continuous
investment program for each of the Funds, including investment, research and
management with respect to all securities and investments and cash equivalents
in the Funds. The Advisor shall determine from time to time what securities and
other investments will be purchased, retained or sold by the Trust with respect
to the Funds. The Advisor shall provide the services under this Agreement in
accordance with each of the Fund's investment objectives, policies, and
restrictions as stated in such Fund's most current Prospectus and Statement of
Additional Information, including all amendments or supplements thereto, and in
such resolutions of the Trustees as may be adopted from time to time. The
Advisor further agrees that it:
(a) will use the same skill and care in providing such services as it
uses in providing services to any fiduciary accounts for which it has
investment responsibilities;
(b) will conform with all applicable rules and regulations of the U.S.
Securities and Exchange Commission (the "Commission") and, in addition,
will conduct its activities under this Agreement in accordance with any
applicable regulations of any governmental authority pertaining to the
investment advisory activities of the Advisor;
(c) will place orders pursuant to its investment determinations for the
Funds either directly with the issuer or with any broker or dealer,
including the Advisor. In placing orders with brokers and dealers, the
Advisor will attempt to obtain and is hereby directed to obtain prompt
execution of orders in an effective manner at the most favorable price.
Consistent with this obligation, the Advisor may, in its discretion,
purchase and sell portfolio securities to and from brokers and dealers
who provide the Advisor with brokerage and research services (within the
meaning of Section 28(e) of the Securities Exchange Act of 1934).
Subject to the review of the Trustees from time to time with respect to
the extent and continuation of this policy, the Advisor is authorized to
pay a broker or dealer who provides such brokerage and research services
a commission for effecting a securities transaction for any of the Funds
which is in excess of the amount of commission another broker or dealer
would have charged for effecting that transaction if, but only if, the
Advisor determines in good faith that such commission was reasonable in
relation to the value of the brokerage and research services provided by
such broker or dealer, viewed in terms of either that particular
transaction or the overall responsibilities of the Advisor with respect
to the accounts as to which it exercises investment discretion. On
occasions when the Advisor deems the purchase or sale of a security to
be in the best interest of one or more of the Funds as well as of other
clients, the Advisor, to the extent permitted by applicable laws and
regulations, may aggregate the securities to be so purchased or sold in
order to obtain the most favorable price or lower brokerage commissions
and the most efficient execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Advisor in the manner it considers to
be the most equitable and consistent with its fiduciary obligations to
the Funds and to such other clients. In placing orders with the Advisor
for the Trust, the Advisor will comply with the procedures adopted by
the Trust pursuant to Rule 17e-1 under the 1940 Act.
(d) will maintain, or cause the Custodian to maintian, all books and
records with respect to the securities transactions executed for the
Funds; and
(e) will furnish the Trust's Board of Trustees such periodic and special
reports with respect to each Fund's investment activities as the
Trustees may reasonably request; and
(f) will advise and assist the officers of the Trust in taking such
actions as may be necessary or appropriate to carry out the decisions of
the Trustees and of the appropriate committees of the Trustees regarding
the conduct of the business of the Funds.
3. Expenses. During the term of this Agreement, the Advisor will pay
all expenses incurred by it in performing its services under this Agreement. The
Advisor shall not be liable for any expenses of the Trust, including without
limitation (a) its interest and taxes, (b) brokerage commissions and other costs
in connection with the purchase or sale of securities or other investment
instruments with respect to the Trust and (c) custodian fees and expenses.
4. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, each of the Funds will pay the Advisor and the
Advisor will accept as full compensation therefor a fee set forth on Schedule A
hereto. The obligation to pay the fee to the Advisor will begin as of the
respective dates of the initial sale of shares in the Funds, including any
shares sold or exchanged in connection with a merger, consolidation or
reorganization involving one or more of the Funds. Such fee shall be paid
monthly based upon each respective Fund's average daily net assets calculated in
the manner provided in the Prospectus and Statement of Additional Information
then in effect.
The fee shall be accrued daily by each Fund and paid to the Advisor
within five (5) business days after the end of each calendar month. If this
Agreement is terminated before the end of any month, the fee to the Advisor
shall be prorated for the portion of any month in which this Agreement is in
effect and shall be payable within ten (10) days after the date of termination.
5. Limitation of Liability. The Advisor shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Funds in
connection with the performance of this Agreement, except a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of the Advisor in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
6. Duration and Termination. This Agreement shall become effective at
the time the Trust's initial Registration Statement under the Securities Act of
1933 with respect to the shares of the Trust is declared effective by the
Commission and shall remain in effect for a period of two (2) year, unless
sooner terminated as hereinafter provided. This Agreement shall continue in
effect thereafter for successive one year periods so long as such continuation
is approved for each Fund at least annually by (i) the Board of Trustees of the
Trust or by the vote of a majority of the outstanding voting securities of each
Fund, and (ii) the vote of a majority of the disinterested Trustees, cast in
person at a meeting called for the purpose of voting on such approval.
Notwithstanding the foregoing, this Agreement may be terminated as to a
particular Fund at any time on sixty days' written notice, without the payment
of any penalty, by the Trust (by vote of the Trust's Board of Trustees or by
vote of a majority of the outstanding voting securities of such Fund) or by the
Advisor. This Agreement will automatically terminate in the event of its
assignment. Any notice under this Agreement shall be given in writing, addressed
and delivered or mailed to the other party at the principal office of such
party.
As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested persons" and "assignment" shall have the same
meanings as ascribed to such terms in the 1940 Act.
7. Advisor's Representations. The Advisor hereby represents and
warrants that it is willing and possesses all requisite legal authority to
provide the services contemplated by this Agreement without violation of
applicable laws and regulations.
8. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
9. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected there by. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
INVESTORS CAPITAL FUNDS
By: /s/ Theodore E. Charles
-----------------------
Name: Theodore E. Charles
Title: President
EASTERN POINT ADVISORS, INC.
By: /s/ Timothy B. Murphy
-----------------------
Name: Timothy B. Murphy
Title: President
<PAGE>
Schedule A
INVESTMENT ADVISORY AGREEMENT
between
INVESTORS CAPITAL FUNDS
and
EASTERN POINT ADVISORS, INC.
<PAGE>
Name of Fund Compensation*
Investors Capital Internet Fund 1.50% of the average daily net assets of the
Fund
Investors Capital Twenty Fund 1.50% of the average daily net assets of the
Fund
* All fees are computed and paid monthly.
<PAGE>
EXHIBIT 23(e)
INVESTORS CAPITAL FUNDS
DISTRIBUTION AGREEMENT
This Distribution Agreement (the "Agreement") is made as of this 23rd day of
September, 1999, by and between Investors Capital Funds, a Delaware business
trust (the "Trust"), on behalf of each series of the Trust listed in Schedule I
attached hereto, as may be amended from time to time (individually, a "Fund"
and, collectively, the "Funds") and Investors Capital Corporation, a
Massachusetts corporation (the "You").
Section 1. GENERAL DUTIES AS DISTRIBUTOR OF FUND SHARES.
It is hereby agreed that you shall act as principal distributor for each series
of the Trust set forth on Schedule I and any other series of the Trust as the
parties may agree from time to time. Each Fund may be authorized to issue
multiple classes of shares pursuant to Rule 18f-3 under the Investment Company
Act of 1940, as amended (the "1940 Act"). As Distributor, you will have the
exclusive right to sell, as agent, on behalf of each Fund, shares of each class
authorized and issued by the Fund and it is further agreed that during the term
of this Agreement, you will use your reasonable efforts to solicit or otherwise
cause sales of the shares of each Fund and any authorized class of the Funds'
shares which are registered or qualified for sale. In the performance of these
duties you shall be guided by the requirements of this Agreement, the applicable
provisions of the Trust's Trust Instrument, By-laws, and applicable federal and
state law, all as amended and/or supplemented from time to time, and each Fund's
Prospectus and Statement of Additional Information, which is from time to time
in effect under the Trust's Registration Statement filed with the U.S.
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "1933 Act"), and the 1940 Act.
Section 2. DEALERS.
You may solicit qualified dealers for orders to purchase shares of the Funds and
may enter into dealer Agreements with any such dealers, the form thereof to be
determined by you.
Section 3. SALES LITERATURE AND ADVERTISEMENTS.
All sales literature and advertisements used by you in connection with the sale
of the Trust's shares must be approved in advance by a Trust officer. In
connection with the sale or arranging for the sale of the Trust's shares, you
are authorized to give only such information and to make only such statements or
representations as are contained in each Fund's Prospectus in effect under the
Trust's Registration Statement, or in sales literature or advertisements
approved by the Trust.
Section 4. LIMITATION UPON INVESTMENT IN THE TRUST
You shall not accept any initial or subsequent investment in shares of a Fund,
except as described in the Fund's then-current Prospectus.
Section 5. OFFERING PRICE. NET ASSET VALUE PER SHARE.
Shares of each Fund sold under this Agreement shall be sold only at the offering
price in effect at the time of such sale, as described in the then-current
Prospectus and Statement of Additional Information of each Fund, and each Fund
shall receive not less than the full net asset value thereof. Any front-end
sales charge payable upon purchases shall be retained by you, it being
understood that such amounts will not exceed those set forth in each Fund's
then-current Prospectus. You may re-allow to dealers all or any part of these
sales charges.
Any reference to "net asset value per share" shall refer to each Fund's net
asset value per share computed in accordance with the Trust's Trust Instrument,
each Fund's then-current Prospectus and Statement of Additional Information and
the instructions of the Trustees, all as amended from time to time. The Trust or
its agent will advise you as promptly as practicable of each Fund's net asset
value per share on each day on which it is determined.
Section 6. DUTIES UPON SALE OR REDEMPTION OF SHARES OF THE TRUST.
You shall remit to the Trust's custodian the net asset value per share of all
shares of each Fund sold by you. Each Fund will, as promptly as practicable,
cause the account of the purchaser to be credited with the number of shares
purchased. The Trust will not issue share certificates.
You shall process or cause to be processed requests received from each Fund's
shareholders for redemption of its shares, in the manner prescribed in the
Fund's then-current Prospectus and Statement of Additional Information. Shares
shall be redeemed at their net asset value per share next computed after receipt
of the redemption request, subject to any applicable redemption fee as set forth
in the Fund's then current Prospectus. You shall arrange for payment to such
shareholders from each Fund's account with the custodian.
You shall reimburse the respective Fund for any loss caused by the failure of a
shareholder to confirm in writing any purchase or redemption order accepted by
you. In the event that orders for the purchase or redemption of shares of a Fund
are placed and subsequently canceled, you shall pay to that Fund, on at least an
annual basis, an amount equal to the losses (net of any gains) realized by the
Fund as a result of such cancellations.
Section 7. INFORMATION RELATING TO THE TRUST.
The Trust or its agent will furnish you with a certified copy of all financial
statements and a signed copy of each report prepared by its independent public
accountants, and will cooperate fully with you in your efforts to sell the
Funds' shares, and in the performance by you of all of your duties under this
Agreement.
Section 8. FILING OF REGISTRATION STATEMENTS.
The Trust or its agent will from time to time file (and furnish you with copies
of) such registration statements, amendments and supplements thereto, and
reports or other documents as may be required under the 1933 Act, the 1940 Act,
or the laws of the states in which you desire to sell shares of the Funds.
Section 9. MULTIPLE CAPACITIES.
Nothing contained in this Agreement shall be deemed to prohibit you from acting,
and being separately compensated for acting, in one or more capacities on behalf
of the Trust, including, but not limited to, the capacities of advisor,
administrator, broker and distributor. The Trust understands that you may act in
one or more such capacities on behalf of other investment companies and
customers. You shall give the Trust equitable treatment under the circumstances
in supplying services in any capacity, but the Trust recognizes that it is not
entitled to receive preferential treatment from you as compared with the
treatment given to any other investment company or customer. Whenever you shall
act in multiple capacities on behalf of the Trust, you shall maintain the
appropriate separate account and records for each such capacity.
Section 10. PAYMENT OF FEES AND EXPENSES.
You shall be entitled to receive for your services as distributor the fees
payable in accordance with any plans adopted by the Funds (or class of shares of
the respective Funds) pursuant to Rule 12b-1 under the 1940 Act. The foregoing
shall not be deemed to limit your right to receive and retain any front-end
sales charges referred to in Section 5. hereof.
Section 11. LIABILITY OF THE DISTRIBUTOR.
You shall be liable for your own acts and omissions caused by your willful
misfeasance, bad faith, or gross negligence in the performance of your duties,
or by your reckless disregard of your obligations under this Agreement, and
nothing herein shall protect you against any such liability to the Trust or its
shareholders. Subject to the first sentence of this Section, you shall not be
liable for any action taken or omitted on advice, obtained in good faith, of
counsel, provided such counsel is satisfactory to the Trust.
Section 12. USE OF THE WORDS "INVESTORS CAPITAL" IN NAME OF FUNDS
The words "Investors Capital" in the name of the Fund is understood to be used
by the Fund with your consent, and the Fund is hereby granted a non-exclusive
license to use the name "Investors Capital Funds." provided that the Fund may
use such name only so long as (i) Eastern Point Advisors, Inc. ("Advisor"),
which currently acts as investment advisor of the Fund, shall continue to be
retained by the Fund as its investment advisor pursuant to an investment
advisory contract between the Fund and the Advisor, as from time to time amended
or supplemented, or (ii) you shall specifically consent in writing to such
continued use. Any such use by the Fund shall in no way prevent you or any of
your successors or assigns from using or permitting the use of the name
"Investors Capital Funds" along or with any other word or business, other than
the Fund or its business, whether or not the same directly or indirectly
competes or conflicts with the Fund or its business in any manner. To the extent
permitted by the 1940 Act and the rules and regulations thereunder, and
Investment Company Act Release No. 5510, in the event that the Advisor shall
cease to be the investment advisor of the Fund, the Fund, upon your written
request, shall take such further action as may be necessary to delete from its
name the words "Investors Capital" and thereafter (i) cease to use the name
"Investors Capital Funds" or any name deceptively similar thereto or to
"Investors Capital Funds" in any way whatsoever, and (ii) for such period and in
such manner as may reasonably be required by you, on all letterheads and other
material designed to be read or used by salesmen, distributors or investors,
state in a prominent position and prominent type that Eastern Point Advisors,
Inc. has ceased to be the investment advisor of the Fund.
Section 13. TERMINATION OF AGREEMENT; ASSIGNMENT.
This Agreement may be terminated at any time, without the payment of any
penalty, on 60 days' written notice (i) by you; (ii) by the Trust, acting
pursuant to a resolution adopted by the non-interested Trustees; or (iii) by the
vote of the holders of the lesser of (1) 67% of the Trust's shares present at a
meeting if the holders of more than 50% of the outstanding shares are present in
person or represented by proxy, or (2) more than 50% of the outstanding shares
of the Trust. This Agreement shall automatically terminate in the event of its
assignment. Termination shall not affect the rights of the parties which have
accrued prior thereto.
Section 14. DURATION.
Unless sooner terminated, this Agreement shall continue in effect for one year
from the date herein above first written, and from year to year thereafter until
terminated, provided that the continuation of this Agreement and the terms
hereof are specifically approved annually in accordance with the requirements of
the 1940 Act as modified or superseded by any rule, regulation, order or
interpretive position of the Commission.
Section 15. DEFINITIONS.
The terms "assignment" and "interested person" when used in this Agreement shall
have the meanings given such terms in the 1940 Act.
Section 16. CONCERNING APPLICABLE PROVISIONS OF LAW, ETC.
This Agreement shall be subject to all applicable provisions of law, including,
without being limited to, the applicable provisions of the 1940 Act, the 1933
Act, and the Securities Exchange Act of 1934, as amended; and to the extent that
any provisions of this Agreement are in conflict with such laws, the latter
shall control.
This Agreement is executed and delivered in Massachusetts, and the laws of the
Commonwealth of Massachusetts shall govern the construction, validity and effect
of this Agreement.
Section 17. MISCELLANEOUS.
The obligations of the Trust and each Fund are not personally binding upon, nor
shall resort be had to the private property of, any of the Trustees,
shareholders, officers, employees or agents of the Trust or any Fund, but only
the relevant Fund's property shall be bound. No Fund shall be liable for the
obligations of any other Fund.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
INVESTORS CAPITAL FUNDS INVESTORS CAPITAL CORPORATION
By: /s/ Theodore E. Charles By: /s/ Theodore E. Charles
- -------------------------- ---------------------------
Name: Theodore E. Charles Name: Theodore E. Charles
- -------------------------- ---------------------------
Title: President Title: President and Chief
Executive Officer
<PAGE>
SCHEDULE I
Investors Capital Funds:
Investors Capital Internet Fund
Investors Capital Twenty Fund
<PAGE>
EXHIBIT 23(g)
CUSTODY AGREEMENT
Agreement made as of this 4th day of October, 1999, between INVESTORS
CAPITAL FUNDS, a Delaware business trust organized and existing under the laws
of the State of Delaware, having its principal office and place of business at
230 - Broadway East, Suite 203, Lynnfield, Massachusetts 01940-2320
(hereinafter called the "Fund"), and THE BANK OF NEW YORK, a New York
corporation authorized to do a banking business, having its principal office and
place of business at One Wall Street, New York, New York 10286 (hereinafter
called the "Custodian").
W I T N E S S E T H :
WHEREAS, the Fund represents that pursuant to the Administration Agreement (as
hereinafter defined) between First Data Investors Services Group ("FDISG") and
the Fund, FDISG (a) has agreed to perform certain administrative functions which
may include the functions of administrator, transfer agent and accounting
services agent and (b) has been appointed by the Fund to act as its agent in
respect of certain transactions contemplated in this Agreement; and
WHEREAS, the Fund represents that (a) FDISG has agreed to act as Fund's agent in
respect of certain transactions contemplated in this Agreement and (b) the
Custodian is authorized and directed to rely upon and follow Certificates and
Instructions given by FDISG, the Fund's agent, in respect of transactions
contemplated in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth,
the Fund and the Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
1. "Administrator" shall mean FDISG and such successors or permitted assigns as
may succeed and perform its duties under the Administration Agreement.
2. "Administration Agreement" shall mean that certain separate agreement
entitled "Custody Administration and Agency Agreement" dated as of September ,
1999 between the Fund and the FDISG.
3. "Book-Entry System" shall mean the Federal Reserve/Treasury book-entry system
for United States and federal agency securities, its successor or successors and
its nominee or nominees.
4. "Call Option" shall mean an exchange traded option with respect to Securities
other than Stock Index Options, Futures Contracts, and Futures Contract Options
entitling the holder, upon timely exercise and payment of the exercise price, as
specified therein, to purchase from the writer thereof the specified underlying
Securities.
5. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement to be given to the Custodian
which is actually received by the Custodian and signed on behalf of the Fund by
any two Officers, and the term Certificate shall also include Instructions
communicated to the Custodian by the Administrator.
6. "Clearing Member" shall mean a registered broker-dealer which is a clearing
member under the rules of O.C.C. and a member of a national securities exchange
qualified to act as a custodian for an investment company, or any broker-dealer
reasonably believed by the Custodian to be such a clearing member.
7. "Collateral Account" shall mean a segregated account so denominated which is
specifically allocated to a Series and pledged to the Custodian as security for,
and in consideration of, the Custodian's issuance of (a) any Put Option
guarantee letter or similar document described in paragraph 8 of Article V
herein, or (b) any receipt described in Article V or VIII herein.
8. "Composite Currency Unit" shall mean the European Currency Unit or any other
composite unit consisting of the aggregate of specified amounts of specified
Currencies as such unit may be constituted from time to time.
9. "Covered Call Option" shall mean an exchange traded option entitling the
holder, upon timely exercise and payment of the exercise price, as specified
therein, to purchase from the writer thereof the specified underlying Securities
(excluding Futures Contracts) which are owned by the writer thereof and subject
to appropriate restrictions.
10. "Currency" shall mean money denominated in a lawful currency of any country
or the European Currency Unit.
11. "Depository" shall mean The Depository Trust Company ("DTC"), a clearing
agency registered with the Securities and Exchange Commission, its successor or
successors and its nominee or nominees. The term "Depository" shall further
mean and include any other person authorized to act as a depository under the
Investment Company Act of 1940, its successor or successors and its nominee or
nominees, specifically identified in a certified copy of a resolution of the
Fund's Board of Trustees specifically approving deposits therein by the
Custodian.
12. "Financial Futures Contract" shall mean the firm commitment to buy or sell
fixed income securities including, without limitation, U.S. Treasury Bills, U.S.
Treasury Notes, U.S. Treasury Bonds, domestic bank certificates of deposit, and
Eurodollar certificates of deposit, during a specified month at an agreed upon
price.
13. "Futures Contract" shall mean a Financial Futures Contract and/or Stock
Index Futures Contracts.
14. "Futures Contract Option" shall mean an option with respect to a Futures
Contract.
15. "FX Transaction" shall mean any transaction for the purchase by one party of
an agreed amount in one Currency against the sale by it to the other party of an
agreed amount in another Currency.
16. "Instructions" shall mean instructions communications transmitted by
electronic or telecommunications media including S.W.I.F.T.,
computer-to-computer interface, dedicated transmission line, facsimile
transmission signed by an Officer and tested telex.
17. "Margin Account" shall mean a segregated account in the name of a broker,
dealer, futures commission merchant, or a Clearing Member, or in the name of the
Fund for the benefit of a broker, dealer, futures commission merchant, or
Clearing Member, or otherwise, in accordance with an agreement between the Fund,
the Custodian and a broker, dealer, futures commission merchant or a Clearing
Member (a "Margin Account Agreement"), separate and distinct from the custody
account, in which certain Securities and/or money of the Fund shall be deposited
and withdrawn from time to time in connection with such transactions as the Fund
may from time to time determine. Securities held in the Book-Entry System or
the Depository shall be deemed to have been deposited in, or withdrawn from, a
Margin Account upon the Custodian's effecting an appropriate entry in its books
and records.
18. "Money Market Security" shall be deemed to include, without limitation,
certain Reverse Repurchase Agreements, debt obligations issued or guaranteed as
to interest and principal by the government of the United States or agencies or
instrumentalities thereof, any tax, bond or revenue anticipation note issued by
any state or municipal government or public authority, commercial paper,
certificates of deposit and bankers' acceptances, repurchase agreements with
respect to the same and bank time deposits, where the purchase and sale of such
securities normally requires settlement in federal funds on the same day as such
purchase or sale.
19. "O.C.C." shall mean the Options Clearing Corporation, a clearing agency
registered under Section 17A of the Securities Exchange Act of 1934, its
successor or successors, and its nominee or nominees.
20. "Officers" shall be deemed to include the President, any Vice President, the
Secretary, the Clerk, the Treasurer, the Controller, any Assistant Secretary,
any Assistant Clerk, any Assistant Treasurer, and any other person or persons,
including officers or employees of the Administrator, whether or not any such
other person is an officer of the Fund, duly authorized by the Board of Trustees
of the Fund to execute any Certificate, instruction, notice or other instrument
on behalf of the Fund and listed in the Certificate annexed hereto as Appendix A
or such other Certificate as may be received by the Custodian from time to time.
21. "Option" shall mean a Call Option, Covered Call Option, Stock Index Option
and/or a Put Option.
22. "Oral Instructions" shall mean verbal instructions actually received by the
Custodian from an Officer or from a person reasonably believed by the Custodian
to be an Officer.
23. "Put Option" shall mean an exchange traded option with respect to Securities
other than Stock Index Options, Futures Contracts, and Futures Contract Options
entitling the holder, upon timely exercise and tender of the specified
underlying Securities, to sell such Securities to the writer thereof for the
exercise price.
24. "Reverse Repurchase Agreement" shall mean an agreement pursuant to which the
Fund sells Securities and agrees to repurchase such Securities at a described or
specified date and price.
25. "Security" shall be deemed to include, without limitation, Money Market
Securities, Call Options, Put Options, Stock Index Options, Stock Index Futures
Contracts, Stock Index Futures Contract Options, Financial Futures Contracts,
Financial Futures Contract Options, Reverse Repurchase Agreements, common stocks
and other securities having characteristics similar to common stocks, preferred
stocks, debt obligations issued by state or municipal governments and by public
authorities, (including, without limitation, general obligation bonds, revenue
bonds, industrial bonds and industrial development bonds), bonds, debentures,
notes, mortgages or other obligations, and any certificates, receipts, warrants
or other instruments representing rights to receive, purchase, sell or subscribe
for the same, or evidencing or representing any other rights or interest
therein, or any property or assets.
26. "Senior Security Account" shall mean an account maintained and specifically
allocated to a Series under the terms of this Agreement as a segregated account,
by recordation or otherwise, within the custody account in which certain
Securities and/or other assets of the Fund specifically allocated to such Series
shall be deposited and withdrawn from time to time in accordance with
Certificates received by the Custodian in connection with such transactions as
the Fund may from time to time determine.
27. "Series" shall mean the various portfolios, if any, of the Fund as described
from time to time in the current and effective prospectus for the Fund and
listed on Appendix B hereto as amended from time to time.
28. "Shares" shall mean the shares of beneficial interest of the Fund, each of
which is, in the case of a Fund having Series, allocated to a particular Series.
29. "Stock Index Futures Contract" shall mean a bilateral agreement pursuant to
which the parties agree to take or make delivery of an amount of cash equal to a
specified dollar amount times the difference between the value of a particular
stock index at the close of the last business day of the contract and the price
at which the futures contract is originally struck.
30. "Stock Index Option" shall mean an exchange traded option entitling the
holder, upon timely exercise, to receive an amount of cash determined by
reference to the difference between the exercise price and the value of the
index on the date of exercise.
ARTICLE II
APPOINTMENT OF CUSTODIAN
1. The Fund hereby constitutes and appoints the Custodian as custodian of the
Securities and money at any time owned by the Fund during the period of this
Agreement.
2. The Custodian hereby accepts appointment as such custodian and agrees to
perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
1. Except as otherwise provided in paragraph 7 of this Article and in Article
VIII, the Fund will deliver or cause to be delivered to the Custodian all
Securities and all money owned by it, at any time during the period of this
Agreement, and shall specify with respect to such Securities and money the
Series to which the same are specifically allocated. The Custodian shall
segregate, keep and maintain the assets of the Series separate and apart. The
Custodian will not be responsible for any Securities and money not actually
received by it. The Custodian will be entitled to reverse any credits made on
the Fund's behalf where such credits have been previously made and money is not
finally collected. The Fund shall deliver to the Custodian a certified
resolution of the Board of Trustees of the Fund, substantially in the form of
Exhibit A hereto, approving, authorizing and instructing the Custodian on a
continuous and on-going basis to deposit in the Book-Entry System all Securities
eligible for deposit therein, regardless of the Series to which the same are
specifically allocated and to utilize the Book-Entry System to the extent
possible in connection with its performance hereunder, including, without
limitation, in connection with settlements of purchases and sales of Securities,
loans of Securities and deliveries and returns of Securities collateral. Prior
to a deposit of Securities specifically allocated to a Series in the Depository,
the Fund shall deliver to the Custodian a certified resolution of the Board of
Trustees of the Fund, substantially in the form of Exhibit B hereto, approving,
authorizing and instructing the Custodian on a continuous and ongoing basis
until instructed to the contrary by a Certificate actually received by the
Custodian to deposit in the Depository all Securities specifically allocated to
such Series eligible for deposit therein, and to utilize the Depository to the
extent possible with respect to such Securities in connection with its
performance hereunder, including, without limitation, in connection with
settlements of purchases and sales of Securities, loans of Securities, and
deliveries and returns of Securities collateral. Securities and money deposited
in either the Book-Entry System or the Depository will be represented in
accounts which include only assets held by the Custodian for customers,
including, but not limited to, accounts in which the Custodian acts in a
fiduciary or representative capacity and will be specifically allocated on the
Custodian's books to the separate account for the applicable Series. Prior to
the Custodian's accepting, utilizing and acting with respect to Clearing Member
confirmations for Options and transactions in Options for a Series as provided
in this Agreement, the Custodian shall have received a certified resolution of
the Fund's Board of Trustees, substantially in the form of Exhibit C hereto,
approving, authorizing and instructing the Custodian on a continuous and
on-going basis, until instructed to the contrary by a Certificate actually
received by the Custodian, to accept, utilize and act in accordance with such
confirmations as provided in this Agreement with respect to such Series.
2. The Custodian shall establish and maintain separate accounts, in the name of
each Series, and shall credit to the separate account for each Series all money
received by it for the account of the Fund with respect to such Series. Money
credited to a separate account for a Series shall be disbursed by the Custodian
only:
(a) as hereinafter provided;
(b) pursuant to Certificates setting forth the name and address of the
person to whom the payment is to be made, the Series account from which
payment is to be made and the purpose for which payment is to be made;
or
(c) in payment of the fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to such Series.
3. Promptly after the close of business on each day, the Custodian shall furnish
the Administrator with confirmations and a summary, on a per Series basis, of
all transfers to or from the account of the Fund for a Series, either hereunder
or with any co-custodian or sub-custodian appointed in accordance with this
Agreement during said day. Where Securities are transferred to the account of
the Fund for a Series, the Custodian shall also by book-entry or otherwise
identify as belonging to such Series a quantity of Securities in a fungible bulk
of Securities registered in the name of the Custodian (or its nominee) or shown
on the Custodian's account on the books of the Book-Entry System or the
Depository. At least monthly and from time to time, the Custodian shall furnish
the Administrator with a detailed statement, on a per Series basis, of the
Securities and money held by the Custodian for the Fund.
4. Except as otherwise provided in paragraph 7 of this Article and in Article
VIII, all Securities held by the Custodian hereunder, which are issued or
issuable only in bearer form, except such Securities as are held in the
Book-Entry System, shall be held by the Custodian in that form; all other
Securities held hereunder may be registered in the name of the Fund, in the name
of any duly appointed registered nominee of the Custodian as the Custodian may
from time to time determine, or in the name of the Book-Entry System or the
Depository or their successor or successors, or their nominee or nominees. The
Fund agrees to furnish or cause to be furnished to the Custodian appropriate
instruments to enable the Custodian to hold or deliver in proper form for
transfer, or to register in the name of its registered nominee or in the name of
the Book-Entry System or the Depository any Securities which it may hold
hereunder and which may from time to time be registered in the name of the Fund.
The Custodian shall hold all such Securities specifically allocated to a Series
which are not held in the Book-Entry System or in the Depository in a separate
account in the name of such Series physically segregated at all times from those
of any other person or persons.
5. Except as otherwise provided in this Agreement and unless otherwise
instructed to the contrary by a Certificate, the Custodian by itself, or through
the use of the Book-Entry System or the Depository with respect to Securities
held hereunder and therein deposited, shall with respect to all Securities held
for the Fund hereunder in accordance with preceding paragraph 4:
(a) collect all income due or payable;
(b) present for payment and collect the amount payable upon such Securities
which are called, but only if either (i) the Custodian receives a
written notice of such call, or (ii) notice of such call appears in one
or more of the publications listed in Appendix C annexed hereto, which
may be amended at any time by the Custodian without the prior
notification or consent of the Fund;
(c) present for payment and collect the amount payable upon all Securities
which mature;
(d) surrender Securities in temporary form for definitive Securities;
(e) execute, as custodian, any necessary declarations or certificates of
ownership under the Federal Income Tax Laws or the laws or regulations
of any other taxing authority now or hereafter in effect; and
(f) hold directly, or through the Book-Entry System or the Depository with
respect to Securities therein deposited, for the account of a Series,
all rights and similar securities issued with respect to any Securities
held by the Custodian for such Series hereunder.
6. Upon receipt of a Certificate and not otherwise, the Custodian, directly or
through the use of the Book-Entry System or the Depository, shall:
(a) execute and deliver to such persons as may be designated in such
Certificate proxies, consents, authorizations, and any other instruments
whereby the authority of the Fund as owner of any Securities held by the
Custodian hereunder for the Series specified in such Certificate may be
exercised;
(b) deliver any Securities held by the Custodian hereunder for the Series
specified in such Certificate in exchange for other Securities or cash
issued or paid in connection with the liquidation, reorganization,
refinancing, merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion privilege and receive and
hold hereunder specifically allocated to such Series any cash or other
Securities received in exchange;
(c) deliver any Securities held by the Custodian hereunder for the Series
specified in such Certificate to any protective committee,
reorganization committee or other person in connection with the
reorganization, refinancing, merger, consolidation, recapitalization or
sale of assets of any corporation, and receive and hold hereunder
specifically allocated to such Series such certificates of deposit,
interim receipts or other instruments or documents as may be issued to
it to evidence such delivery;
(d) make such transfers or exchanges of the assets of the Series specified
in such Certificate, and take such other steps as shall be stated in
such Certificate to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger, consolidation or
recapitalization of the Fund; and
(e) present for payment and collect the amount payable upon Securities not
described in preceding paragraph 5(b) of this Article which may be
called as specified in the Certificate.
7. Notwithstanding any provision elsewhere contained herein, the Custodian shall
not be required to obtain possession of any instrument or certificate
representing any Futures Contract, any Option, or any Futures Contract Option
until after it shall have determined, or shall have received a Certificate from
the Fund stating, that any such instruments or certificates are available. The
Fund shall deliver to the Custodian such a Certificate no later than the
business day preceding the availability of any such instrument or certificate.
Prior to such availability, the Custodian shall comply with Section 17(f) of the
Investment Company Act of 1940, as amended, in connection with the purchase,
sale, settlement, closing-out or writing of Futures Contracts, Options, or
Futures Contract Options by making payments or deliveries specified in
Certificates received by the Custodian in connection with any such purchase,
sale, writing, settlement or closing-out upon its receipt from a broker, dealer,
or futures commission merchant of a statement or confirmation reasonably
believed by the Custodian to be in the form customarily used by brokers,
dealers, or futures commission merchants with respect to such Futures Contracts,
Options, or Futures Contract Options, as the case may be, confirming that such
Security is held by such broker, dealer or futures commission merchant, in
book-entry form or otherwise, in the name of the Custodian (or any nominee of
the Custodian) as custodian for the Fund, provided, however, that
notwithstanding the foregoing, payments to or deliveries from the Margin Account
and payments with respect to Securities to which a Margin Account relates, shall
be made in accordance with the terms and conditions of the Margin Account
Agreement. Whenever any such instruments or certificates are available, the
Custodian shall, notwithstanding any provision in this Agreement to the
contrary, make payment for any Futures Contract, Option, or Futures Contract
Option for which such instruments or such certificates are available only
against the delivery to the Custodian of such instrument or such certificate,
and deliver any Futures Contract, Option or Futures Contract Option for which
such instruments or such certificates are available only against receipt by the
Custodian of payment therefor. Any such instrument or certificate delivered to
the Custodian shall be held by the Custodian hereunder in accordance with, and
subject to, the provisions of this Agreement.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
OTHER THAN OPTIONS, FUTURES CONTRACTS AND
FUTURES CONTRACT OPTIONS
1. Promptly after each purchase of Securities by the Fund, other than a purchase
of an Option, a Futures Contract, or a Futures Contract Option, the Fund shall
deliver or cause the Administrator to deliver to the Custodian (i) with respect
to each purchase of Securities which are not Money Market Securities, a
Certificate, and (ii) with respect to each purchase of Money Market Securities,
a Certificate or Oral Instructions, specifying with respect to each such
purchase:
(a) the Series to which such Securities are to be specifically allocated;
(b) the name of the issuer and the title of the Securities;
(c) the number of shares or the principal amount purchased and accrued
interest, if any;
(d) the date of purchase and settlement;
(e) the purchase price per unit;
(f) the total amount payable upon such purchase;
(g) the name of the person from whom or the broker through whom the purchase
was made, and the name of the clearing broker, if any; and
(h) the name of the broker to whom payment is to be made. The Custodian
shall, upon receipt of Securities purchased by or for the Fund, pay to
the broker specified in the Certificate out of the money held for the
account of such Series the total amount payable upon such purchase,
provided that the same conforms to the total amount payable as set forth
in such Certificate or Oral Instructions.
2. Promptly after each sale of Securities by the Fund, other than a sale of any
Option, Futures Contract, Futures Contract Option, or any Reverse Repurchase
Agreement, the Fund shall deliver or cause the Administrator to deliver to the
Custodian (i) with respect to each sale of Securities which are not Money Market
Securities, a Certificate, and (ii) with respect to each sale of Money Market
Securities, a Certificate or Oral Instructions, specifying with respect to each
such sale:
(a) the Series to which such Securities were specifically allocated;
(b) the name of the issuer and the title of the Security;
(c) the number of shares or principal amount sold, and accrued interest, if
any;
(d) the date of sale;
(e) the sale price per unit;
(f) the total amount payable to the Fund upon such sale;
(g) the name of the broker through whom or the person to whom the sale was
made, and the name of the clearing broker, if any; and
(h) the name of the broker to whom the Securities are to be delivered. The
Custodian shall deliver the Securities specifically allocated to such
Series to the broker specified in the Certificate against payment upon
receipt of the total amount payable to the Fund upon such sale, provided
that the same conforms to the total amount payable as set forth in such
Certificate or Oral Instructions.
ARTICLE V
OPTIONS
1. Promptly after the purchase of any Option by the Fund, the Fund shall deliver
or cause the Administrator to deliver to the Custodian a Certificate specifying
with respect to each Option purchased:
(a) the Series to which such Option is specifically allocated;
(b) the type of Option (put or call);
(c) the name of the issuer and the title and number of shares subject to
such Option or, in the case of a Stock Index Option, the stock index to
which such Option relates and the number of Stock Index Options
purchased;
(d) the expiration date;
(e) the exercise price;
(f) the dates of purchase and settlement;
(g) the total amount payable by the Fund in connection with such purchase;
(h) the name of the Clearing Member through whom such Option was purchased;
and
(i) the name of the broker to whom payment is to be made. The Custodian
shall pay, upon receipt of a Clearing Member's statement confirming the
purchase of such Option held by such Clearing Member for the account of
the Custodian (or any duly appointed and registered nominee of the
Custodian) as custodian for the Fund, out of money held for the account
of the Series to which such Option is to be specifically allocated, the
total amount payable upon such purchase to the Clearing Member through
whom the purchase was made, provided that the same conforms to the total
amount payable as set forth in such Certificate.
2. Promptly after the sale of any Option purchased by the Fund pursuant to
paragraph 1 hereof, the Fund shall deliver or cause the Administrator to deliver
to the Custodian a Certificate specifying with respect to each such sale:
(a) the Series to which such Option was specifically allocated;
(b) the type of Option (put or call);
(c) the name of the issuer and the title and number of shares subject to
such Option or, in the case of a Stock Index Option, the stock index to
which such Option relates and the number of Stock Index Options sold;
(d) the date of sale;
(e) the sale price;
(f) the date of settlement;
(g) the total amount payable to the Fund upon such sale; and
(h) the name of the Clearing Member through whom the sale was made. The
Custodian shall consent to the delivery of the Option sold by the
Clearing Member which previously supplied the confirmation described in
preceding paragraph 1 of this Article with respect to such Option
against payment to the Custodian of the total amount payable to the
Fund, provided that the same conforms to the total amount payable as set
forth in such Certificate.
3. Promptly after the exercise by the Fund of any Call Option purchased by the
Fund pursuant to paragraph 1 hereof, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying with respect
to such Call Option:
(a) the Series to which such Call Option was specifically allocated;
(b) the name of the issuer and the title and number of shares subject to the
Call Option;
(c) the expiration date;
(d) the date of exercise and settlement;
(e) the exercise price per share;
(f) the total amount to be paid by the Fund upon such exercise; and
(g) the name of the Clearing Member through whom such Call Option was
exercised. The Custodian shall, upon receipt of the Securities
underlying the Call Option which was exercised, pay out of the money
held for the account of the Series to which such Call Option was
specifically allocated the total amount payable to the Clearing Member
through whom the Call Option was exercised, provided that the same
conforms to the total amount payable as set forth in such Certificate.
4. Promptly after the exercise by the Fund of any Put Option purchased by the
Fund pursuant to paragraph 1 hereof, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying with respect
to such Put Option:
(a) the Series to which such Put Option was specifically allocated;
(b) the name of the issuer and the title and number of shares subject to the
Put Option;
(c) the expiration date;
(d) the date of exercise and settlement;
(e) the exercise price per share;
(f) the total amount to be paid to the Fund upon such exercise; and
(g) the name of the Clearing Member through whom such Put Option was
exercised. The Custodian shall, upon receipt of the amount payable upon
the exercise of the Put Option, deliver or direct the Depository to
deliver the Securities specifically allocated to such Series, provided
the same conforms to the amount payable to the Fund as set forth in such
Certificate.
5. Promptly after the exercise by the Fund of any Stock Index Option purchased
by the Fund pursuant to paragraph 1 hereof, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying with respect
to such Stock Index Option:
(a) the Series to which such Stock Index Option was specifically allocated;
(b) the type of Stock Index Option (put or call);
(c) the number of Options being exercised;
(d) the stock index to which such Option relates;
(e) the expiration date;
(f) the exercise price;
(g) the total amount to be received by the Fund in connection with such
exercise; and
(h) the Clearing Member from whom such payment is to be received.
6. Whenever the Fund writes a Covered Call Option, the Fund shall deliver or
cause the Administrator to deliver to the Custodian a Certificate specifying
with respect to such Covered Call Option:
(a) the Series for which such Covered Call Option was written;
(b) the name of the issuer and the title and number of shares for which the
Covered Call Option was written and which underlie the same;
(c) the expiration date;
(d) the exercise price;
(e) the premium to be received by the Fund;
(f) the date such Covered Call Option was written; and
(g) the name of the Clearing Member through whom the premium is to be
received. The Custodian shall deliver or cause to be delivered, in
exchange for receipt of the premium specified in the Certificate with
respect to such Covered Call Option, such receipts as are required in
accordance with the customs prevailing among Clearing Members dealing in
Covered Call Options and shall impose, or direct the Depository to
impose, upon the underlying Securities specified in the Certificate
specifically allocated to such Series such restrictions as may be
required by such receipts. Notwithstanding the foregoing, the Custodian
has the right, upon prior written notification to the Fund, at any time
to refuse to issue any receipts for Securities in the possession of the
Custodian and not deposited with the Depository underlying a Covered
Call Option.
7. Whenever a Covered Call Option written by the Fund and described in the
preceding paragraph of this Article is exercised, the Fund shall deliver or
cause the Administrator to deliver to the Custodian a Certificate instructing
the Custodian to deliver, or to direct the Depository to deliver, the Securities
subject to such Covered Call Option and specifying:
(a) the Series for which such Covered Call Option was written;
(b) the name of the issuer and the title and number of shares subject to the
Covered Call Option;
(c) the Clearing Member to whom the underlying Securities are to be
delivered; and
(d) the total amount payable to the Fund upon such delivery. Upon the return
and/or cancellation of any receipts delivered pursuant to paragraph 6 of
this Article, the Custodian shall deliver, or direct the Depository to
deliver, the underlying Securities as specified in the Certificate
against payment of the amount to be received as set forth in such
Certificate.
8. Whenever the Fund writes a Put Option, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying with respect
to such Put Option:
(a) the Series for which such Put Option was written;
(b) the name of the issuer and the title and number of shares for which the
Put Option is written and which underlie the same;
(c) the expiration date;
(d) the exercise price;
(e) the premium to be received by the Fund;
(f) the date such Put Option is written;
(g) the name of the Clearing Member through whom the premium is to be
received and to whom a Put Option guarantee letter is to be delivered;
(h) the amount of cash, and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in the Senior
Security Account for such Series; and
(i) the amount of cash and/or the amount and kind of Securities specifically
allocated to such Series to be deposited into the Collateral Account for
such Series. The Custodian shall, after making the deposits into the
Collateral Account specified in the Certificate, issue a Put Option
guarantee letter substantially in the form utilized by the Custodian on
the date hereof, and deliver the same to the Clearing Member specified
in the Certificate against receipt of the premium specified in said
Certificate.
Notwithstanding the foregoing, the Custodian shall be under no obligation to
issue any Put Option guarantee letter or similar document if it is unable to
make any of the representations contained therein.
9. Whenever a Put Option written by the Fund and described in the preceding
paragraph is exercised, the Fund shall deliver or cause the Administrator to
deliver to the Custodian a Certificate specifying:
(a) the Series to which such Put Option was written;
(b) the name of the issuer and title and number of shares subject to the Put
Option;
(c) the Clearing Member from whom the underlying Securities are to be
received;
(d) the total amount payable by the Fund upon such delivery;
(e) the amount of cash and/or the amount and kind of Securities specifically
allocated to such Series to be withdrawn from the Collateral Account for
such Series and
(f) the amount of cash and/or the amount and kind of Securities,
specifically allocated to such Series, if any, to be withdrawn from the
Senior Security Account. Upon the return and/or cancellation of any Put
Option guarantee letter or similar document issued by the Custodian in
connection with such Put Option, the Custodian shall pay out of the
money held for the account of the Series to which such Put Option was
specifically allocated the total amount payable to the Clearing Member
specified in the Certificate as set forth in such Certificate against
delivery of such Securities, and shall make the withdrawals specified in
such Certificate.
10. Whenever the Fund writes a Stock Index Option, the Fund shall deliver or
cause the Administrator to deliver to the Custodian a Certificate specifying
with respect to such Stock Index Option:
(a) the Series for which such Stock Index Option was written;
(b) whether such Stock Index Option is a put or a call;
(c) the number of options written;
(d) the stock index to which such Option relates;
(e) the expiration date;
(f) the exercise price;
(g) the Clearing Member through whom such Option was written;
(h) the premium to be received by the Fund;
(i) the amount of cash and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in the Senior
Security Account for such Series;
(j) the amount of cash and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in the Collateral
Account for such Series; and
(k) the amount of cash and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in a Margin
Account, and the name in which such account is to be or has been
established. The Custodian shall, upon receipt of the premium specified
in the Certificate, make the deposits, if any, into the Senior Security
Account specified in the Certificate, and either (1) deliver such
receipts, if any, which the Custodian has specifically agreed to issue,
which are in accordance with the customs prevailing among Clearing
Members in Stock Index Options and make the deposits into the Collateral
Account specified in the Certificate, or (2) make the deposits into the
Margin Account specified in the Certificate.
11. Whenever a Stock Index Option written by the Fund and described in the
preceding paragraph of this Article is exercised, the Fund shall deliver or
cause the Administrator to deliver to the Custodian a Certificate specifying
with respect to such Stock Index Option:
(a) the Series for which such Stock Index Option was written;
(b) such information as may be necessary to identify the Stock Index Option
being exercised;
(c) the Clearing Member through whom such Stock Index Option is being
exercised;
(d) the total amount payable upon such exercise, and whether such amount is
to be paid by or to the Fund;
(e) the amount of cash and/or amount and kind of Securities, if any, to be
withdrawn from the Margin Account; and
(f) the amount of cash and/or amount and kind of Securities, if any, to be
withdrawn from the Senior Security Account for such Series; and the
amount of cash and/or the amount and kind of Securities, if any, to be
withdrawn from the Collateral Account for such Series. Upon the return
and/or cancellation of the receipt, if any, delivered pursuant to the
preceding paragraph of this Article, the Custodian shall pay out of the
money held for the account of the Series to which such Stock Index
Option was specifically allocated to the Clearing Member specified in
the Certificate the total amount payable, if any, as specified therein.
12. Whenever the Fund purchases any Option identical to a previously written
Option described in paragraphs, 6, 8 or 10 of this Article in a transaction
expressly designated as a "Closing Purchase Transaction" in order to liquidate
its position as a writer of an Option, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying with respect
to the Option being purchased:
(a) that the transaction is a Closing Purchase Transaction;
(b) the Series for which the Option was written;
(c) the name of the issuer and the title and number of shares subject to the
Option, or, in the case of a Stock Index Option, the stock index to
which such Option relates and the number of Options held;
(d) the exercise price;
(e) the premium to be paid by the Fund;
(f) the expiration date;
(g) the type of Option (put or call);
(h) the date of such purchase;
(i) the name of the Clearing Member to whom the premium is to be paid; and
(j) the amount of cash and/or the amount and kind of Securities, if any, to
be withdrawn from the Collateral Account, a specified Margin Account, or
the Senior Security Account for such Series. Upon the Custodian's
payment of the premium and the return and/or cancellation of any receipt
issued pursuant to paragraphs 6, 8 or 10 of this Article with respect to
the Option being liquidated through the Closing Purchase Transaction,
the Custodian shall remove, or direct the Depository to remove, the
previously imposed restrictions on the Securities underlying the Call
Option.
13. Upon the expiration, exercise or consummation of a Closing Purchase
Transaction with respect to any Option purchased or written by the Fund and
described in this Article, the Custodian shall delete such Option from the
statements delivered to the Fund pursuant to paragraph 3 of Article III herein,
and upon the return and/or cancellation of any receipts issued by the Custodian,
shall make such withdrawals from the Collateral Account, and the Margin Account
and/or the Senior Security Account as may be specified in a Certificate received
in connection with such expiration, exercise, or consummation.
ARTICLE VI
FUTURES CONTRACTS
1. Whenever the Fund shall enter into a Futures Contract, the Fund shall deliver
or cause the Administrator to deliver to the Custodian a Certificate specifying
with respect to such Futures Contract, (or with respect to any number of
identical Futures Contract(s)):
(a) the Series for which the Futures Contract is being entered;
(b) the category of Futures Contract (the name of the underlying stock index
or financial instrument);
(c) the number of identical Futures Contracts entered into;
(d) the delivery or settlement date of the Futures Contract(s);
(e) the date the Futures Contract(s) was (were) entered into and the
maturity date;
(f) whether the Fund is buying (going long) or selling (going short) on such
Futures Contract(s);
(g) the amount of cash and/or the amount and kind of Securities, if any, to
be deposited in the Senior Security Account for such Series;
(h) the name of the broker, dealer, or futures commission merchant through
whom the Futures Contract was entered into; and
(i) the amount of fee or commission, if any, to be paid and the name of the
broker, dealer, or futures commission merchant to whom such amount is to
be paid. The Custodian shall make the deposits, if any, to the Margin
Account in accordance with the terms and conditions of the Margin
Account Agreement. The Custodian shall make payment out of the money
specifically allocated to such Series of the fee or commission, if any,
specified in the Certificate and deposit in the Senior Security Account
for such Series the amount of cash and/or the amount and kind of
Securities specified in said Certificate.
2. (a) Any variation margin payment or similar payment required to be made by
the Fund to a broker, dealer, or futures commission merchant with respect to an
outstanding Futures Contract, shall be made by the Custodian in accordance with
the terms and conditions of the Margin Account Agreement.
(b) Any variation margin payment or similar payment from a broker, dealer, or
futures commission merchant to the Fund with respect to an outstanding Futures
Contract, shall be received and dealt with by the Custodian in accordance with
the terms and conditions of the Margin Account Agreement.
3. Whenever a Futures Contract held by the Custodian hereunder is retained by
the Fund until delivery or settlement is made on such Futures Contract, the Fund
shall deliver or cause the Administrator to deliver to the Custodian a
Certificate specifying:
(a) the Futures Contract and the Series to which the same relates;
(b) with respect to a Stock Index Futures Contract, the total cash
settlement amount to be paid or received, and with respect to a
Financial Futures Contract, the Securities and/or amount of cash to be
delivered or received;
(c) the broker, dealer, or futures commission merchant to or from whom
payment or delivery is to be made or received; and
(d) the amount of cash and/or Securities to be withdrawn from the Senior
Security Account for such Series. The Custodian shall make the payment
or delivery specified in the Certificate, and delete such Futures
Contract from the statements delivered to the Fund pursuant to paragraph
3 of Article III herein.
4. Whenever the Fund shall enter into a Futures Contract to offset a Futures
Contract held by the Custodian hereunder, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying:
(a) the items of information required in a Certificate described in
paragraph 1 of this Article, and
(b) the Futures Contract being offset. The Custodian shall make payment out
of the money specifically allocated to such Series of the fee or
commission, if any, specified in the Certificate and delete the Futures
Contract being offset from the statements delivered to the Fund pursuant
to paragraph 3 of Article III herein, and make such withdrawals from the
Senior Security Account for such Series as may be specified in such
Certificate. The withdrawals, if any, to be made from the Margin Account
shall be made by the Custodian in accordance with the terms and
conditions of the Margin Account Agreement.
5. Notwithstanding any other provision in this Agreement to the contrary, the
Custodian shall deliver cash and Securities to a futures commission merchant
upon receipt of a Certificate from the Fund or the Administrator specifying:
(a) the name of the futures commission merchant;
(b) the specific cash and Securities to be delivered;
(c) the date of such delivery; and
(d) the date of the agreement between the Fund and such futures commission
merchant entered pursuant to Rule 17f-6 under the Investment Company Act
1940, as amended. Each delivery of such a Certificate by the Fund shall
constitute (x) a representation and warranty by the Fund that the Rule
17f-6 agreement has been duly authorized, executed and delivered by the
Fund and the futures commission merchant and complies with Rule 17f-6,
and (y) an agreement by the Fund that the Custodian shall not be liable
for the acts or omissions of any such futures commission merchant.
ARTICLE VII
FUTURES CONTRACT OPTIONS
1. Promptly after the purchase of any Futures Contract Option by the Fund, the
Fund shall deliver or cause the Administrator to deliver to the Custodian a
Certificate specifying with respect to such Futures Contract Option:
(a) the Series to which such Option is specifically allocated;
(b) the type of Futures Contract Option (put or call);
(c) the type of Futures Contract and such other information as may be
necessary to identify the Futures Contract underlying the Futures
Contract Option purchased;
(d) the expiration date;
(e) the exercise price;
(f) the dates of purchase and settlement;
(g) the amount of premium to be paid by the Fund upon such purchase;
(h) the name of the broker or futures commission merchant through whom such
option was purchased; and
(i) the name of the broker, or futures commission merchant, to whom payment
is to be made. The Custodian shall pay out of the money specifically
allocated to such Series, the total amount to be paid upon such purchase
to the broker or futures commissions merchant through whom the purchase
was made, provided that the same conforms to the amount set forth in
such Certificate.
2. Promptly after the sale of any Futures Contract Option purchased by the Fund
pursuant to paragraph 1 hereof, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying with respect
to each such sale:
(a) Series to which such Futures Contract Option was specifically allocated;
(b) the type of Futures Contract Option (put or call);
(c) the type of Futures Contract and such other information as may be
necessary to identify the Futures Contract underlying the Futures
Contract Option;
(d) the date of sale;
(e) the sale price;
(f) the date of settlement;
(g) the total amount payable to the Fund upon such sale; and
(h) the name of the broker or futures commission merchant through whom the
sale was made. The Custodian shall consent to the cancellation of the
Futures Contract Option being closed against payment to the Custodian of
the total amount payable to the Fund, provided the same conforms to the
total amount payable as set forth in such Certificate.
3. Whenever a Futures Contract Option purchased by the Fund pursuant to
paragraph 1 is exercised by the Fund, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying:
(a) the Series to which such Futures Contract Option was specifically
allocated;
(b) the particular Futures Contract Option (put or call) being exercised;
(c) the type of Futures Contract underlying the Futures Contract Option;
(d) the date of exercise;
(e) the name of the broker or futures commission merchant through whom the
Futures Contract Option is exercised;
(f) the net total amount, if any, payable by the Fund;
(g) the amount, if any, to be received by the Fund; and
(h) the amount of cash and/or the amount and kind of Securities to be
deposited in the Senior Security Account for such Series. The Custodian
shall make, out of the money and Securities specifically allocated to
such Series, the payments, if any, and the deposits, if any, into the
Senior Security Account as specified in the Certificate. The deposits,
if any, to be made to the Margin Account shall be made by the Custodian
in accordance with the terms and conditions of the Margin Account
Agreement.
4. Whenever the Fund writes a Futures Contract Option, the Fund shall deliver or
cause the Administrator to deliver to the Custodian a Certificate specifying
with respect to such Futures Contract Option:
(a) the Series for which such Futures Contract Option was written;
(b) the type of Futures Contract Option (put or call);
(c) the type of Futures Contract and such other information as may be
necessary to identify the Futures Contract underlying the Futures
Contract Option;
(d) the expiration date;
(e) the exercise price;
(f) the premium to be received by the Fund;
(g) the name of the broker or futures commission merchant through whom the
premium is to be received; and
(h) the amount of cash and/or the amount and kind of Securities, if any, to
be deposited in the Senior Security Account for such Series. The
Custodian shall, upon receipt of the premium specified in the
Certificate, make out of the money and Securities specifically allocated
to such Series the deposits into the Senior Security Account, if any, as
specified in the Certificate. The deposits, if any, to be made to the
Margin Account shall be made by the Custodian in accordance with the
terms and conditions of the Margin Account Agreement.
5. Whenever a Futures Contract Option written by the Fund which is a call is
exercised, the Fund shall deliver or cause the Administrator to deliver to the
Custodian a Certificate specifying:
(a) the Series to which such Futures Contract Option was specifically
allocated;
(b) the particular Futures Contract Option exercised;
(c) the type of Futures Contract underlying the Futures Contract Option;
(d) the name of the broker or futures commission merchant through whom such
Futures Contract Option was exercised;
(e) the net total amount, if any, payable to the Fund upon such exercise;
(f) the net total amount, if any, payable by the Fund upon such exercise;
and
(g) the amount of cash and/or the amount and kind of Securities to be
deposited in the Senior Security Account for such Series. The Custodian
shall, upon its receipt of the net total amount payable to the Fund, if
any, specified in such Certificate make the payments, if any, and the
deposits, if any, into the Senior Security Account as specified in the
Certificate. The deposits, if any, to be made to the Margin Account
shall be made by the Custodian in accordance with the terms and
conditions of the Margin Account Agreement.
6. Whenever a Futures Contract Option which is written by the Fund and which is
a put is exercised, the Fund shall deliver or cause the Administrator to deliver
to the Custodian a Certificate specifying:
(a) the Series to which such Option was specifically allocated;
(b) the particular Futures Contract Option exercised;
(c) the type of Futures Contract underlying such Futures Contract Option;
(d) the name of the broker or futures commission merchant through whom such
Futures Contract Option is exercised;
(e) the net total amount, if any, payable to the Fund upon such exercise;
(f) the net total amount, if any, payable by the Fund upon such exercise;
and
(g) the amount and kind of Securities and/or cash to be withdrawn from or
deposited in, the Senior Security Account for such Series, if any. The
Custodian shall, upon its receipt of the net total amount payable to the
Fund, if any, specified in the Certificate, make out of the money and
Securities specifically allocated to such Series, the payments, if any,
and the deposits, if any, into the Senior Security Account as specified
in the Certificate. The deposits to and/or withdrawals from the Margin
Account, if any, shall be made by the Custodian in accordance with the
terms and conditions of the Margin Account Agreement.
7. Whenever the Fund purchases any Futures Contract Option identical to a
previously written Futures Contract Option described in this Article in order to
liquidate its position as a writer of such Futures Contract Option, the Fund
shall deliver or cause the Administrator to deliver to the Custodian a
Certificate specifying with respect to the Futures Contract Option being
purchased:
(a) the Series to which such Option is specifically allocated;
(b) that the transaction is a closing transaction;
(c) the type of Futures Contract and such other information as may be
necessary to identify the Futures Contract underlying the Futures Option
Contract;
(d) the exercise price;
(e) the premium to be paid by the Fund;
(f) the expiration date;
(g) the name of the broker or futures commission merchant to whom the
premium is to be paid; and
(h) the amount of cash and/or the amount and kind of Securities, if any, to
be withdrawn from the Senior Security Account for such Series. The
Custodian shall effect the withdrawals from the Senior Security Account
specified in the Certificate. The withdrawals, if any, to be made from
the Margin Account shall be made by the Custodian in accordance with the
terms and conditions of the Margin Account Agreement.
8. Upon the expiration, exercise, or consummation of a closing transaction with
respect to, any Futures Contract Option written or purchased by the Fund and
described in this Article, the Custodian shall
(a) delete such Futures Contract Option from the statements delivered to the
Fund pursuant to paragraph 3 of Article III herein and,
(b) make such withdrawals from and/or in the case of an exercise such
deposits into the Senior Security Account as may be specified in a
Certificate. The deposits to and/or withdrawals from the Margin Account,
if any, shall be made by the Custodian in accordance with the terms and
conditions of the Margin Account Agreement.
9. Futures Contracts acquired by the Fund through the exercise of a Futures
Contract Option described in this Article shall be subject to Article VI hereof.
10. Notwithstanding any other provision in this Agreement to the contrary, the
Custodian shall deliver cash and Securities to a futures commission merchant
upon receipt of a Certificate from the Fund or the Administrator specifying:
(a) the name of the futures commission merchant;
(b) the specific cash and Securities to be delivered;
(c) the date of such delivery; and
(d) the date of the agreement between the Fund and such futures commission
merchant entered pursuant to Rule 17f-6 under the Investment Company Act
1940, as amended. Each delivery of such a Certificate by the Fund shall
constitute (x) a representation and warranty by the Fund that the Rule
17f-6 agreement has been duly authorized, executed and delivered by the
Fund and the futures commission merchant and complies with Rule 17f-6,
and (y) an agreement by the Fund that the Custodian shall not be liable
for the acts or omissions of any such futures commission merchant.
ARTICLE VIII
SHORT SALES
1. Promptly after any short sales by any Series of the Fund, the Fund shall
deliver or cause the Administrator to deliver to the Custodian a Certificate
specifying:
(a) the Series for which such short sale was made;
(b) the name of the issuer and the title of the Security;
(c) the number of shares or principal amount sold, and accrued interest or
dividends, if any;
(d) the dates of the sale and settlement;
(e) the sale price per unit;
(f) the total amount credited to the Fund upon such sale, if any,
(g) the amount of cash and/or the amount and kind of Securities, if any,
which are to be deposited in a Margin Account and the name in which such
Margin Account has been or is to be established;
(h) the amount of cash and/or the amount and kind of Securities, if any, to
be deposited in a Senior Security Account, and (i) the name of the
broker through whom such short sale was made. The Custodian shall upon
its receipt of a statement from such broker confirming such sale and
that the total amount credited to the Fund upon such sale, if any, as
specified in the Certificate is held by such broker for the account of
the Custodian (or any nominee of the Custodian) as custodian of the
Fund, issue a receipt or make the deposits into the Margin Account and
the Senior Security Account specified in the Certificate.
2. In connection with the closing-out of any short sale, the Fund shall deliver
or cause the Administrator to deliver to the Custodian a Certificate specifying
with respect to each such closing-out:
(a) the Series for which such transaction is being made;
(b) the name of the issuer and the title of the Security;
(c) the number of shares or the principal amount, and accrued interest or
dividends, if any, required to effect such closing-out to be delivered
to the broker;
(d) the dates of closing-out and settlement;
(e) the purchase price per unit;
(f) the net total amount payable to the Fund upon such closing-out;
(g) the net total amount payable to the broker upon such closing-out;
(h) the amount of cash and the amount and kind of Securities to be
withdrawn, if any, from the Margin Account;
(i) the amount of cash and/or the amount and kind of Securities, if any, to
be withdrawn from the Senior Security Account; and
(j) the name of the broker through whom the Fund is effecting such
closing-out. The Custodian shall, upon receipt of the net total amount
payable to the Fund upon such closing-out, and the return and/or
cancellation of the receipts, if any, issued by the Custodian with
respect to the short sale being closed-out, pay out of the money held
for the account of the Fund to the broker the net total amount payable
to the broker, and make the withdrawals from the Margin Account and the
Senior Security Account, as the same are specified in the Certificate.
ARTICLE IX
REVERSE REPURCHASE AGREEMENTS
1. Promptly after the Fund enters a Reverse Repurchase Agreement with respect to
Securities and money held by the Custodian hereunder, the Fund shall deliver or
cause the Administrator to deliver to the Custodian a Certificate, or in the
event such Reverse Repurchase Agreement is a Money Market Security, a
Certificate or Oral Instructions specifying:
(a) the Series for which the Reverse Repurchase Agreement is entered;
(b) the total amount payable to the Fund in connection with such Reverse
Repurchase Agreement and specifically allocated to such Series;
(c) the broker or dealer through or with whom the Reverse Repurchase
Agreement is entered;
(d) the amount and kind of Securities to be delivered by the Fund to such
broker or dealer;
(e) the date of such Reverse Repurchase Agreement; and
(f) the amount of cash and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in a Senior
Security Account for such Series in connection with such Reverse
Repurchase Agreement. The Custodian shall, upon receipt of the total
amount payable to the Fund specified in the Certificate or Oral
Instructions make the delivery to the broker or dealer, and the
deposits, if any, to the Senior Security Account, specified in such
Certificate or Oral Instructions.
2. Upon the termination of a Reverse Repurchase Agreement described in preceding
paragraph 1 of this Article, the Fund shall deliver or cause the Administrator
to deliver a Certificate or, in the event such Reverse Repurchase Agreement is a
Money Market Security, a Certificate or Oral Instructions to the Custodian
specifying:
(a) the Reverse Repurchase Agreement being terminated and the Series for
which same was entered;
(b) the total amount payable by the Fund in connection with such
termination;
(c) the amount and kind of Securities to be received by the Fund and
specifically allocated to such Series in connection with such
termination;
(d) the date of termination;
(e) the name of the broker or dealer with or through whom the Reverse
Repurchase Agreement is to be terminated; and
(f) the amount of cash and/or the amount and kind of Securities to be
withdrawn from the Senior Securities Account for such Series. The
Custodian shall, upon receipt of the amount and kind of Securities to be
received by the Fund specified in the Certificate or Oral Instructions,
make the payment to the broker or dealer, and the withdrawals, if any,
from the Senior Security Account, specified in such Certificate or Oral
Instructions.
ARTICLE X
LOAN OF PORTFOLIO SECURITIES OF THE FUND
1. Promptly after each loan of portfolio Securities specifically allocated to a
Series held by the Custodian hereunder, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying with respect
to each such loan:
(a) the Series to which the loaned Securities are specifically allocated;
(b) the name of the issuer and the title of the Securities,
(c) the number of shares or the principal amount loaned,
(d) the date of loan and delivery,
(e) the total amount to be delivered to the Custodian against the loan of
the Securities, including the amount of cash collateral and the premium,
if any, separately identified, and
(f) the name of the broker, dealer, or financial institution to which the
loan was made. The Custodian shall deliver the Securities thus
designated to the broker, dealer or financial institution to which the
loan was made upon receipt of the total amount designated as to be
delivered against the loan of Securities. The Custodian may accept
payment in connection with a delivery otherwise than through the
Book-Entry System or Depository only in the form of a certified or bank
cashier's check payable to the order of the Fund or the Custodian drawn
on New York Clearing House funds and may deliver Securities in
accordance with the customs prevailing among dealers in securities.
2. Promptly after each termination of the loan of Securities by the Fund, the
Fund shall deliver or cause the Administrator to deliver to the Custodian a
Certificate specifying with respect to each such loan termination and return of
Securities:
(a) the Series to which the loaned Securities are specifically allocated;
(b) the name of the issuer and the title of the Securities to be returned,
(c) the number of shares or the principal amount to be returned,
(d) the date of termination,
(e) the total amount to be delivered by the Custodian (including the cash
collateral for such Securities minus any offsetting credits as described
in said Certificate), and
(f) the name of the broker, dealer, or financial institution from which the
Securities will be returned. The Custodian shall receive all Securities
returned from the broker, dealer, or financial institution to which such
Securities were loaned and upon receipt thereof shall pay, out of the
money held for the account of the Fund, the total amount payable upon
such return of Securities as set forth in the Certificate.
ARTICLE XI
CONCERNING MARGIN ACCOUNTS, SENIOR SECURITY
ACCOUNTS, AND COLLATERAL ACCOUNTS
1. The Custodian shall, from time to time, make such deposits to, or withdrawals
from, a Senior Security Account as specified in a Certificate received by the
Custodian. Such Certificate shall specify the Series for which such deposit or
withdrawal is to be made and the amount of cash and/or the amount and kind of
Securities specifically allocated to such Series to be deposited in, or
withdrawn from, such Senior Security Account for such Series. In the event that
the Certificate fails to specify the Series, the name of the issuer, the title
and the number of shares or the principal amount of any particular Securities to
be deposited by the Custodian into, or withdrawn from, a Senior Securities
Account, the Custodian shall be under no obligation to make any such deposit or
withdrawal and shall so notify the Administrator.
2. The Custodian shall make deliveries or payments from a Margin Account to the
broker, dealer, futures commission merchant or Clearing Member in whose name, or
for whose benefit, the account was established as specified in the Margin
Account Agreement.
3. Amounts received by the Custodian as payments or distributions with respect
to Securities deposited in any Margin Account shall be dealt with in accordance
with the terms and conditions of the Margin Account Agreement.
4. The Custodian shall have a continuing lien and security interest in and to
any property at any time held by the Custodian in any Collateral Account
described herein. In accordance with applicable law the Custodian may enforce
its lien and realize on any such property whenever the Custodian has made
payment or delivery pursuant to any Put Option guarantee letter or similar
document or any receipt issued hereunder by the Custodian. In the event the
Custodian should realize on any such property net proceeds which are less than
the Custodian's obligations under any Put Option guarantee letter or similar
document or any receipt, such deficiency shall be a debt owed the Custodian by
the Fund within the scope of Article XIV herein.
5. On each business day the Custodian shall furnish the Fund with a statement
with respect to each Margin Account in which money or Securities are held
specifying as of the close of business on the previous business day:
(a) the name of the Margin Account;
(b) the amount and kind of Securities held therein; and
(c) the amount of money held therein. The Custodian shall make available
upon request to any broker, dealer, or futures commission merchant
specified in the name of a Margin Account a copy of the statement
furnished the Fund with respect to such Margin Account.
6. Promptly after the close of business on each business day in which cash
and/or Securities are maintained in a Collateral Account for any Series, the
Custodian shall furnish the Administrator with a statement with respect to such
Collateral Account specifying the amount of cash and/or the amount and kind of
Securities held therein. No later than the close of business next succeeding
the delivery to the Fund of such statement, the Fund shall deliver or cause the
Administrator to deliver to the Custodian a Certificate specifying the then
market value of the Securities described in such statement. In the event such
then market value is indicated to be less than the Custodian's obligation with
respect to any outstanding Put Option guarantee letter or similar document, the
Fund shall promptly specify or cause the Administrator to promptly specify in a
Certificate the additional cash and/or Securities to be deposited in such
Collateral Account to eliminate such deficiency.
ARTICLE XII
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. The Fund shall deliver or cause the Administrator to deliver to the Custodian
a copy of the resolution of the Board of Trustees of the Fund, certified by the
Secretary, the Clerk, any Assistant Secretary or any Assistant Clerk, either (i)
setting forth with respect to the Series specified therein the date of the
declaration of a dividend or distribution, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be determined,
the amount payable per Share of such Series to the shareholders of record as of
that date and the total amount payable to the Dividend Agent and any
sub-dividend agent or co-dividend agent of the Fund on the payment date, or (ii)
authorizing with respect to the Series specified therein the declaration of
dividends and distributions on a daily basis and authorizing the Custodian to
rely on Oral Instructions or a Certificate setting forth the date of the
declaration of such dividend or distribution, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be determined,
the amount payable per Share of such Series to the shareholders of record as of
that date and the total amount payable to the Dividend Agent on the payment
date.
2. Upon the payment date specified in such resolution, Oral Instructions or
Certificate, as the case may be, the Custodian shall pay out of the money held
for the account of each Series the total amount payable to the Dividend Agent
and any sub-dividend agent or co-dividend agent of the Fund with respect to such
Series.
ARTICLE XIII
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any Shares, it shall deliver or cause the
Administrator to deliver to the Custodian a Certificate duly specifying:
(a) the Series, the number of Shares sold, trade date, and price; and
(b) the amount of money to be received by the Custodian for the sale of such
Shares and specifically allocated to the separate account in the name of
such Series.
2. Upon receipt of such money from the Transfer Agent, the Custodian shall
credit such money to the separate account in the name of the Series for which
such money was received.
3. Upon issuance of any Shares of any Series described in the foregoing
provisions of this Article, the Custodian shall pay, out of the money held for
the account of such Series, all original issue or other taxes required to be
paid by the Fund in connection with such issuance upon the receipt of a
Certificate specifying the amount to be paid.
4. Except as provided hereinafter, whenever the Fund desires the Custodian to
make payment out of the money held by the Custodian hereunder in connection with
a redemption of any Shares, it shall deliver or cause the Administrator to
deliver to the Custodian a Certificate specifying:
(a) the number and Series of Shares redeemed; and
(b) the amount to be paid for such Shares.
5. Upon receipt from the Transfer Agent of an advice setting forth the Series
and number of Shares received by the Transfer Agent for redemption and that such
Shares are in good form for redemption, the Custodian shall make payment to the
Transfer Agent out of the money held in the separate account in the name of the
Series the total amount specified in the Certificate delivered pursuant to the
foregoing paragraph 4 of this Article.
6. Notwithstanding the above provisions regarding the redemption of any Shares,
whenever any Shares are redeemed pursuant to any check redemption privilege
which may from time to time be offered by the Fund, the Custodian, unless
otherwise instructed by a Certificate, shall, upon receipt of an advice from the
Fund or its agent setting forth that the redemption is in good form for
redemption in accordance with the check redemption procedure, honor the check
presented as part of such check redemption privilege out of the money held in
the separate account of the Series of the Shares being redeemed.
ARTICLE XIV
OVERDRAFTS OR INDEBTEDNESS
1. If the Custodian should in its sole discretion advance funds on behalf of any
Series which results in an overdraft because the money held by the Custodian in
the separate account for such Series shall be insufficient to pay the total
amount payable upon a purchase of Securities specifically allocated to such
Series, as set forth in a Certificate or Oral Instructions, or which results in
an overdraft in the separate account of such Series for some other reason, or if
the Fund is for any other reason indebted to the Custodian with respect to a
Series, including any indebtedness to The Bank of New York under the Fund's Cash
Management and Related Services Agreement (except a borrowing for investment or
for temporary or emergency purposes using Securities as collateral pursuant to a
separate agreement and subject to the provisions of paragraph 2 of this
Article), such overdraft or indebtedness shall be deemed to be a loan made by
the Custodian to the Fund for such Series payable on demand and shall bear
interest from the date incurred at a rate per annum (based on a 360-day year for
the actual number of days involved) equal to 1/2% over Custodian's prime
commercial lending rate in effect from time to time, such rate to be adjusted on
the effective date of any change in such prime commercial lending rate but in no
event to be less than 6% per annum, or at such other rate per annum, if any, as
the Fund and the Custodian may agree upon in writing from time to time. In
addition, the Fund hereby agrees that the Custodian shall have a continuing lien
and security interest in and to any property specifically allocated to such
Series at any time held by it for the benefit of such Series or in which the
Fund may have an interest which is then in the Custodian's possession or control
or in possession or control of any third party acting in the Custodian's behalf.
The Fund authorizes the Custodian, in its sole discretion, at any time to charge
any such overdraft or indebtedness together with interest due thereon against
any balance of account standing to such Series' credit on the Custodian's books.
In addition, the Fund hereby covenants that on each Business Day on which either
it intends to enter a Reverse Repurchase Agreement and/or otherwise borrow from
a third party, or which next succeeds a Business Day on which at the close of
business the Fund had outstanding a Reverse Repurchase Agreement or such a
borrowing, it shall prior to 9 a.m., New York City time, advise the Custodian,
in writing, of each such borrowing, shall specify the Series to which the same
relates, and shall not incur any indebtedness not so specified other than from
the Custodian.
2. The Fund will cause to be delivered to the Custodian by any bank (including,
if the borrowing is pursuant to a separate agreement, the Custodian) from which
it borrows money for investment or for temporary or emergency purposes using
Securities held by the Custodian hereunder as collateral for such borrowings, a
notice or undertaking in the form currently employed by any such bank setting
forth the amount which such bank will loan to the Fund against delivery of a
stated amount of collateral. The Fund shall promptly deliver to the Custodian a
Certificate specifying with respect to each such borrowing:
(a) the Series to which such borrowing relates;
(b) the name of the bank,
(c) the amount and terms of the borrowing, which may be set forth by
incorporating by reference an attached promissory note, duly endorsed by
the Fund, or other loan agreement,
(d) the time and date, if known, on which the loan is to be entered into,
(e) the date on which the loan becomes due and payable,
(f) the total amount payable to the Fund on the borrowing date,
(g) the market value of Securities to be delivered as collateral for such
loan, including the name of the issuer, the title and the number of
shares or the principal amount of any particular Securities, and
(h) a statement specifying whether such loan is for investment purposes or
for temporary or emergency purposes and that such loan is in conformance
with the Investment Company Act of 1940 and the Fund's prospectus. The
Custodian shall deliver on the borrowing date specified in a Certificate
the specified collateral and the executed promissory note, if any,
against delivery by the lending bank of the total amount of the loan
payable, provided that the same conforms to the total amount payable as
set forth in the Certificate. The Custodian may, at the option of the
lending bank, keep such collateral in its possession, but such
collateral shall be subject to all rights therein given the lending bank
by virtue of any promissory note or loan agreement. The Custodian shall
deliver such Securities as additional collateral as may be specified in
a Certificate to collateralize further any transaction described in this
paragraph. The Fund shall cause all Securities released from collateral
status to be returned directly to the Custodian, and the Custodian shall
receive from time to time such return of collateral as may be tendered
to it. In the event that the Fund fails to specify in a Certificate the
Series, the name of the issuer, the title and number of shares or the
principal amount of any particular Securities to be delivered as
collateral by the Custodian, the Custodian shall not be under any
obligation to deliver any Securities.
ARTICLE XV
INSTRUCTIONS
1. With respect to any software provided by the Custodian to a Fund in order for
the Fund to transmit Instructions to the Custodian (the "Software"), the
Custodian grants to such Fund a personal, nontransferable and nonexclusive
license to use the Software solely for the purpose of transmitting Instructions
to, and receiving communications from, the Custodian in connection with its
account(s). The Fund shall use the Software solely for its own internal and
proper business purposes, and not in the operation of a service bureau, and
agrees not to sell, reproduce, lease or otherwise provide, directly or
indirectly, the Software or any portion thereof to any third party without the
prior written consent of the Custodian. The Fund acknowledges that the Custodian
and its suppliers have title and exclusive proprietary rights to the Software,
including any trade secrets or other ideas, concepts, know how, methodologies,
or information incorporated therein and the exclusive rights to any copyrights,
trademarks and patents (including registrations and applications for
registration of either) or statutory or legal protections available with respect
thereof. The Fund further acknowledges that all or a part of the Software may be
copyrighted or trademarked (or a registration or claim made therefor) by the
Custodian or its suppliers. The Fund shall not take any action with respect to
the Software inconsistent with the foregoing acknowledgments, nor shall the Fund
attempt to decompile, reverse engineer or modify the Software. The Fund may not
copy, sell, lease or provide, directly or indirectly, any of the Software or any
portion thereof to any other person or entity without the Custodian's prior
written consent. The Fund may not remove any statutory copyright notice, or
other notice including the software or on any media containing the Software. The
Fund shall reproduce any such notice on any reproduction of the Software and
shall add statutory copyright notice or other notice to the Software or media
upon the Bank's request. Custodian agrees to provide reasonable training,
instruction manuals and access to Custodian's "help desk" in connection with the
Fund's user support necessary to use of the Software. At the Fund's request,
Custodian agrees to permit reasonable testing of the Software by the Fund.
2. The Fund shall obtain and maintain at its own cost and expense all equipment
and services, including but not limited to communications services, necessary
for it to utilize the Software and transmit Instructions to the Custodian. The
Custodian shall not be responsible for the reliability, compatibility with the
Software or availability of any such equipment or services or the performance or
nonperformance by any nonparty to this Custody Agreement.
3. The Fund acknowledges that the Software, all data bases made available to the
Fund by utilizing the Software (other than data bases relating solely to the
assets of the Fund and transactions with respect thereto), and any proprietary
data, processes, information and documentation (other than which are or become
part of the public domain or are legally required to be made available to the
public) (collectively, the "Information"), are the exclusive and confidential
property of the Custodian. The Fund shall keep the Information confidential by
using the same care and discretion that the Fund uses with respect to its own
confidential property and trade secrets and shall neither make nor permit any
disclosure without the prior written consent of the Custodian. Upon termination
of this Agreement or the Software license granted hereunder for any reason, the
Fund shall return to the Custodian all copies of the Information which are in
its possession or under its control or which the Fund distributed to third
parties. The provisions of this Article shall not affect the copyright status
of any of the Information which may be copyrighted and shall apply to all
Information whether or not copyrighted.
4. The Custodian reserves the right to modify, at its own expense, the Software
from time to time without prior notice and the Fund shall install new releases
of the Software as the Custodian may direct. The Fund agrees not to modify or
attempt to modify the Software without the Custodian's prior written consent.
The Fund acknowledges that any modifications to the Software, whether by the
Fund or the Custodian and whether with or without the Custodian's consent, shall
become the property of the Custodian.
5. The Custodian and its manufacturers and suppliers make no warranties or
representations of any kind with regard to the Software or the method(s) by
which the Fund may transmit Instructions to the Custodian, express or implied,
including but not limited to any implied warranties of merchantability or
fitness for a particular purpose.
6. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED STATES
LAW. THE FUND AGREES THAT IT WILL NOT UNDER ANY CIRCUMSTANCES RESELL, DIVERT,
TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO
ANY OTHER COUNTRY. IF THE CUSTODIAN DELIVERS THE SOFTWARE TO THE FUND OUTSIDE
THE UNITED STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN
ACCORDANCE WITH EXPORT ADMINISTRATIVE REGULATIONS. DIVERSION CONTRARY TO U.S.
LAWS PROHIBITED. The Fund hereby authorizes Custodian to report its name and
address to government agencies to which Custodian is required to provide such
information by law.
7. Where the method for transmitting Instructions by the Fund involves an
automatic systems acknowledgment by the Custodian of its receipt of such
Instructions, then in the absence of such acknowledgment the Custodian shall not
be liable for any failure to act pursuant to such Instructions, the Fund may not
claim that such Instructions were received by the Custodian, and the Fund shall
deliver a Certificate by some other means.
8. (a) The Fund agrees that where it delivers to the Custodian Instructions
hereunder, it shall be the Fund's sole responsibility to ensure that only
persons duly authorized by the Fund transmit such Instructions to the Custodian.
The Fund will cause all persons transmitting Instructions to the Custodian to
treat applicable user and authorization codes, passwords and authentication keys
with extreme care, and irrevocably authorizes the Custodian to act in accordance
with and rely upon Instructions received by it pursuant hereto.
(b) The Fund hereby represents, acknowledges and agrees that it is fully
informed of the protections and risks associated with the various methods of
transmitting Instructions to the Custodian and that there may be more secure
methods of transmitting instructions to the Custodian than the method(s)
selected by the Fund. The Fund hereby agrees that the security procedures (if
any) to be followed in connection with the Fund's transmission of Instructions
provide to it a commercially reasonable degree of protection in light of its
particular needs and circumstances.
9. The Fund hereby represents, warrants and covenants to the Custodian that this
Agreement has been duly approved by a resolution of its Board of Trustees, and
that its transmission of Instructions pursuant hereto shall at all times comply
with the Investment Company Act.
10. The Fund shall notify the Custodian of any errors, omissions or
interruptions in, or delay or unavailability of, its ability to send
Instructions as promptly as practicable, and in any event within 24 hours after
the earliest of (i) discovery thereof, (ii) the Business Day on which discovery
should have occurred through the exercise of reasonable care and (iii) in the
case of any error, the date of actual receipt of the earliest notice which
reflects such error, it being agreed that discovery and receipt of notice may
only occur on a business day. The Custodian shall promptly advise the Fund
whenever the Custodian learns of any errors, omissions or interruption in, or
delay or unavailability of, the Fund's ability to send Instructions.
11. Custodian will indemnify and hold harmless the Fund with respect to any
liability, damages, loss or claim incurred by or brought against Fund by reason
any claim or infringement against any patent, copyright, license or other
property right arising out or by reason of the Fund's use of the Software in the
form provided under this Section. Custodian at its own expense will defend such
action or claim brought against Fund to the extent that it is based on a claim
that the Software in the form provided by Custodian infringes any patents,
copyrights, license or other property right, provided that Custodian is provided
with reasonable written notice of such claim, provided that the Fund has not
settled, compromised or confessed any such claim without the Custodian's written
consent, in which event Custodian shall have no liability or obligation
hereunder, and provided Fund cooperates with and assists Custodian in the
defense of such claim. Custodian shall have the right to control the defense of
all such claims, lawsuits and other proceedings. If, as a result of any claim
of infringement against any patent, copyright, license or other property right,
Custodian is enjoined from using the Software, or if Custodian believes that the
System is likely to become the subject of a claim of infringement, Custodian at
its option may in its sole discretion either (a) at its expenses procure the
right for the Fund to continue to use the Software, or (b), replace or modify
the Software so as to make it non-infringing, or (c) may discontinue the license
granted herein upon written notice to Fund.
ARTICLE XVI
DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY
OF ANY SERIES HELD OUTSIDE OF THE UNITED STATES
1. The Custodian is authorized and instructed to employ, as sub-custodian for
each Series' Securities for which the primary market is outside the United
States ("Foreign Securities") and other assets, the foreign banking
institutions, foreign branches of U.S. banks, and foreign securities
depositories and clearing agencies designated on Schedule I hereto ("Foreign
Sub-Custodians"). The Fund may designate any additional foreign sub-custodian
with which the Custodian has an agreement for such entity to act as the
Custodian's agent, as its sub-custodian and any such additional foreign
sub-custodian shall be deemed added to Schedule I. Upon receipt of a
Certificate from the Fund, the Custodian shall cease the employment of any one
or more Foreign Sub-Custodians for maintaining custody of the Fund's assets and
such Foreign Sub-Custodian shall be deemed deleted from Schedule I.
2. Each delivery of a Certificate to the Custodian in connection with a
transaction involving the use of a Foreign Sub-Custodian shall constitute a
representation and warranty by the Fund that its Board of Trustees, or its third
party foreign custody manager as defined in Rule 17f-5 under the Investment
Company Act of 1940, as amended, if any, has determined that use of such Foreign
Sub-Custodian satisfies the requirements of such Investment Company Act of 1940
and such Rule 17f-5 thereunder.
3. The Custodian shall identify on its books as belonging to each Series of the
Fund the Foreign Securities of such Series held by each Foreign Sub-Custodian.
At the election of the Fund, it shall be entitled to be subrogated to the rights
of the Custodian with respect to any claims by the Fund or any Series against a
Foreign Sub-Custodian as a consequence of any loss, damage, cost, expense,
liability or claim sustained or incurred by the Fund or any Series if and to the
extent that the Fund or such Series has not been made whole for any such loss,
damage, cost, expense, liability or claim.
4. Upon request of the Fund, the Custodian will, consistent with the terms of
the applicable Foreign Sub-Custodian agreement, use reasonable efforts to
arrange for the independent accountants of the Fund to be afforded access to the
books and records of any Foreign Sub-Custodian insofar as such books and records
relate to the performance of such Foreign Sub-Custodian under its agreement with
the Custodian on behalf of the Fund.
5. The Custodian will supply to the Fund from time to time, as mutually agreed
upon, statements in respect of the securities and other assets of each Series
held by Foreign Sub-Custodians, including but not limited to an identification
of entities having possession of each Series' Foreign Securities and other
assets, and advices or notifications of any transfers of Foreign Securities to
or from each custodial account maintained by a Foreign Sub-Custodian for the
Custodian on behalf of the Series.
6. The Custodian shall transmit promptly to the Fund all notices, reports or
other written information received pertaining to the Fund's Foreign Securities,
including without limitation, notices of corporate action, proxies and proxy
solicitation materials.
7. Notwithstanding any provision of this Agreement to the contrary, settlement
and payment for securities received for the account of any Series and delivery
of securities maintained for the account of such Series may be effected in
accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivery of securities to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) against a receipt with the expectation of receiving later payment for
such securities from such purchaser or dealer.
8. Notwithstanding any other provision in this Agreement to the contrary, with
respect to any losses or damages arising out of or relating to any actions or
omissions of any Foreign Sub-Custodian the sole responsibility and liability of
the Custodian shall be to take appropriate action at the Fund's expense to
recover such loss or damage from the Foreign Sub-Custodian. It is expressly
understood and agreed that the Custodian's sole responsibility and liability
shall be limited to amounts so recovered from the Foreign Sub-Custodian.
ARTICLE XVII
FX TRANSACTIONS
1. Whenever the Fund shall enter into an FX Transaction, the Fund shall promptly
deliver or cause the Administrator to deliver to the Custodian a Certificate or
Oral Instructions specifying with respect to such FX Transaction:
(a) the Series to which such FX Transaction is specifically allocated;
(b) the type and amount of Currency to be purchased by the Fund;
(c) the type and amount of Currency to be sold by the Fund;
(d) the date on which the Currency to be purchased is to be delivered;
(e) the date on which the Currency to be sold is to be delivered; and
(f) the name of the person from whom or through whom such currencies are to
be purchased and sold. Unless otherwise instructed by a Certificate or
Oral Instructions, the Custodian shall deliver, or shall instruct a
Foreign Sub-Custodian to deliver, the Currency to be sold on the date on
which such delivery is to be made, as set forth in the Certificate, and
shall receive, or instruct a Foreign Sub-Custodian to receive, the
Currency to be purchased on the date as set forth in the Certificate.
2. Where the Currency to be sold is to be delivered on the same day as the
Currency to be purchased, as specified in the Certificate or Oral Instructions,
the Custodian or a Foreign Sub-Custodian may arrange for such deliveries and
receipts to be made in accordance with the customs prevailing from time to time
among brokers or dealers in Currencies, and such receipt and delivery may not be
completed simultaneously. The Fund assumes all responsibility and liability for
all credit risks involved in connection with such receipts and deliveries, which
responsibility and liability shall continue until the Currency to be received by
the Fund has been received in full.
3. Any FX Transaction effected by the Custodian in connection with this
Agreement may be entered with the Custodian, any office, branch or subsidiary of
The Bank of New York Company, Inc., or any Foreign Sub-Custodian acting as
principal or otherwise through customary banking channels. The Fund may issue a
standing Certificate with respect to FX Transaction but the Custodian may
establish rules or limitations concerning any foreign exchange facility made
available to the Fund. The Fund shall bear all risks of investing in Securities
or holding Currency. Without limiting the foregoing, the Fund shall bear the
risks that rules or procedures imposed by a Foreign Sub-Custodian or foreign
depositories, exchange controls, asset freezes or other laws, rules, regulations
or orders shall prohibit or impose burdens or costs on the transfer to, by or
for the account of the Fund of Securities or any cash held outside the Fund's
jurisdiction or denominated in Currency other than its home jurisdiction or the
conversion of cash from one Currency into another currency. The Custodian shall
not be obligated to substitute another Currency for a Currency (including a
Currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected by such law,
regulation, rule or procedure. Neither the Custodian nor any Foreign
Sub-Custodian shall be liable to the Fund for any loss resulting from any of the
foregoing events.
ARTICLE XVIII
CONCERNING THE CUSTODIAN
1. Except as hereinafter provided, or as provided in Article XVI neither the
Custodian nor its nominee shall be liable for any loss or damage, including
reasonable counsel fees, resulting from its action or omission to act or
otherwise, either hereunder or under any Margin Account Agreement, except for
any such loss or damage arising out of its own negligence or willful misconduct.
The Custodian agrees to indemnify and hold harmless the Trust and Trust's
Trustees and officers to the extent described below against any loss as a result
of any breach or violation of this Agreement by the Custodian or its officers,
employees and agents or its nominees, resulting from their negligence or willful
misconduct. The Custodian may, with respect to questions of law arising
hereunder or under any Margin Account Agreement, apply for and obtain the advice
and opinion of counsel to the Fund, or of its own counsel, at the expense of the
Fund, and shall be fully protected with respect to anything done or omitted by
it in good faith in conformity with such advice or opinion. The Custodian shall
be liable to the Fund for any loss or damage resulting from the use of the
Book-Entry System or any Depository arising by reason of any negligence or
willful misconduct on the part of the Custodian or any of its employees or
agents. Notwithstanding the foregoing, or any other provision contained in this
Agreement, in no event shall the Custodian be liable to the Trust, its Trustees
or officers, or any third party, for special, indirect or consequential damages,
or lost profits or loss of business, arising under or in connection with this
Agreement, even if previously informed of the possibility of such damages and
regardless of the form of action.
2. Without limiting the generality of the foregoing, the Custodian shall be
under no obligation to inquire into, and shall not be liable for:
(a) the validity of the issue of any Securities purchased, sold, or written
by or for the Fund, the legality of the purchase, sale or writing
thereof, or the propriety of the amount paid or received therefor;
(b) the legality of the sale or redemption of any Shares, or the propriety
of the amount to be received or paid therefor;
(c) the legality of the declaration or payment of any dividend by the Fund;
(d) the legality of any borrowing by the Fund using Securities as
collateral;
(e) the legality of any loan of portfolio Securities, nor shall the
Custodian be under any duty or obligation to see to it that any cash
collateral delivered to it by a broker, dealer, or financial institution
or held by it at any time as a result of such loan of portfolio
Securities of the Fund is adequate collateral for the Fund against any
loss it might sustain as a result of such loan. The Custodian
specifically, but not by way of limitation, shall not be under any duty
or obligation periodically to check or notify the Fund that the amount
of such cash collateral held by it for the Fund is sufficient collateral
for the Fund, but such duty or obligation shall be the sole
responsibility of the Fund. In addition, the Custodian shall be under no
duty or obligation to see that any broker, dealer or financial
institution to which portfolio Securities of the Fund are lent pursuant
to Article XIV of this Agreement makes payment to it of any dividends or
interest which are payable to or for the account of the Fund during the
period of such loan or at the termination of such loan, provided,
however, that the Custodian shall promptly notify the Fund in the event
that such dividends or interest are not paid and received when due; or
(f) the sufficiency or value of any amounts of money and/or Securities held
in any Margin Account, Senior Security Account or Collateral Account in
connection with transactions by the Fund. In addition, the Custodian
shall be under no duty or obligation to see that any broker, dealer,
futures commission merchant or Clearing Member makes payment to the Fund
of any variation margin payment or similar payment which the Fund may be
entitled to receive from such broker, dealer, futures commission
merchant or Clearing Member, to see that any payment received by the
Custodian from any broker, dealer, futures commission merchant or
Clearing Member is the amount the Fund is entitled to receive, or to
notify the Fund of the Custodian's receipt or non-receipt of any such
payment.
3. The Custodian shall not be liable for, or considered to be the Custodian of,
any money, whether or not represented by any check, draft, or other instrument
for the payment of money, received by it on behalf of the Fund until the
Custodian actually receives and collects such money directly or by the final
crediting of the account representing the Fund's interest at the Book-Entry
System or the Depository.
4. The Custodian shall have no responsibility and shall not be liable for
ascertaining or acting upon any calls, conversions, exchange offers, tenders,
interest rate changes or similar matters relating to Securities held in the
Depository, unless the Custodian shall have actually received timely notice from
the Depository. In no event shall the Custodian have any responsibility or
liability for the failure of the Depository to collect, or for the late
collection or late crediting by the Depository of any amount payable upon
Securities deposited in the Depository which may mature or be redeemed, retired,
called or otherwise become payable. However, upon receipt of a Certificate from
the Fund of an overdue amount on Securities held in the Depository the Custodian
shall make a claim against the Depository on behalf of the Fund, except that the
Custodian shall not be under any obligation to appear in, prosecute or defend
any action, suit or proceeding in respect to any Securities held by the
Depository which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
5. The Custodian shall not be under any duty or obligation to take action to
effect collection of any amount due to the Fund from the Transfer Agent of the
Fund nor to take any action to effect payment or distribution by the Transfer
Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of
the Fund in accordance with this Agreement.
6. The Custodian shall not be under any duty or obligation to take action to
effect collection of any amount if the Securities upon which such amount is
payable are in default, or if payment is refused after due demand or
presentation, unless and until (i) it shall be directed to take such action by a
Certificate and (ii) it shall be assured to its satisfaction of reimbursement of
its costs and expenses in connection with any such action.
7. The Custodian may in addition to the employment of Foreign Sub-Custodians
pursuant to Article XVI appoint one or more banking institutions as Depository
or Depositories, as Sub-Custodian or Sub-Custodians, or as Co-Custodian or
Co-Custodians including, but not limited to, banking institutions located in
foreign countries, of Securities and money at any time owned by the Fund, upon
such terms and conditions as may be approved in a Certificate or contained in an
agreement executed by the Custodian, the Fund and the appointed institution.
8. The Custodian shall not be under any duty or obligation (a) to ascertain
whether any Securities at any time delivered to, or held by it or by any Foreign
Sub-Custodian, for the account of the Fund and specifically allocated to a
Series are such as properly may be held by the Fund or such Series under the
provisions of its then current prospectus, or (b) to ascertain whether any
transactions by the Fund, whether or not involving the Custodian, are such
transactions as may properly be engaged in by the Fund.
9. The Custodian shall be entitled to receive and the Fund agrees to pay to the
Custodian all out-of-pocket expenses and such compensation as may be agreed upon
from time to time between the Custodian and the Fund. The Fund represents that
the Administrator has agreed to pay such compensation and expenses promptly upon
receipt of statements therefor, and hereby directs the Custodian to (i) send all
statements for compensation to its attention care of FDISG at the following
address: First Data Investors Services Group, 3200 Horizon Drive, King of
Prussia, PA 19406-0903, Attention: Mr. Elmer Gardner, Vice President, and (ii)
accept all payments made by FDISG in the Fund's name as if such payments were
made directly by the Fund. The Fund shall pay to FDISG fees for services
(including custodian services provided by the Custodian) in accordance with the
Administration Agreement. The Custodian's compensation for services rendered
hereunder is set forth in a separate agreement between the Custodian and FDISG.
Should FDISG fail to pay or remit such compensation to the Custodian within 20
days of the date the same is due and payable, Custodian shall notify the Fund.
If such payment or remittance is not received from FDISG within 15 days of such
notice, then the Custodian will be entitled to debit the Custody Account
directly for such compensation. The Custodian may charge compensation with
respect to which it has properly sent a notice to the Fund, as provided in the
preceding sentence, and any expenses with respect to a Series incurred by the
Custodian in the performance of its duties pursuant to such agreement against
any money specifically allocated to such Series. Unless and until the Fund or
the Administrator instructs the Custodian by a Certificate to apportion any
loss, damage, liability or expense among the Series in a specified manner, the
Custodian shall also be entitled to charge against any money held by it for the
account of a Series such Series' pro rata share (based on such Series, net asset
value at the time of the charge to the aggregate net asset value of all Series
at that time) of the amount of any loss, damage, liability or expense, including
counsel fees, for which it shall be entitled to reimbursement under the
provisions of this Agreement. The expenses for which the Custodian shall be
entitled to reimbursement hereunder shall include, but are not limited to, the
expenses of sub-custodians and foreign branches of the Custodian incurred in
settling outside of New York City transactions involving the purchase and sale
of Securities of the Fund.
10. The Custodian shall be entitled to rely upon any Certificate, notice or
other instrument in writing received by the Custodian and reasonably believed by
the Custodian to be a Certificate. The Custodian shall be entitled to rely upon
any Oral Instructions actually received by the Custodian. The Fund agrees to
forward or cause the Administrator to forward to the Custodian a Certificate or
facsimile thereof confirming such Oral Instructions in such manner so that such
Certificate or facsimile thereof is received by the Custodian, whether by hand
delivery, telecopier or other similar device, or otherwise, by the close of
business of the same day that such Oral Instructions are given to the Custodian.
The Fund agrees that the fact that such confirming instructions are not received
by the Custodian shall in no way affect the validity of the transactions or
enforceability of the transactions hereby authorized by the Fund. The Fund
agrees that the Custodian shall incur no liability to the Fund in acting upon
Oral Instructions given to the Custodian hereunder concerning such transactions
provided such instructions reasonably appear to have been received from an
Officer.
11. The Custodian shall be entitled to rely upon any instrument, instruction or
notice received by the Custodian and reasonably believed by the Custodian to be
given in accordance with the terms and conditions of any Margin Account
Agreement. Without limiting the generality of the foregoing, the Custodian
shall be under no duty to inquire into, and shall not be liable for, the
accuracy of any statements or representations contained in any such instrument
or other notice including, without limitation, any specification of any amount
to be paid to a broker, dealer, futures commission merchant or Clearing Member.
12. The books and records pertaining to the Fund which are in the possession of
the Custodian shall be the property of the Fund. Such books and records shall
be prepared and maintained as required by the Investment Company Act of 1940, as
amended, and other applicable securities laws and rules and regulations. The
Fund, or the Fund's authorized representatives, shall have access to such books
and records during the Custodian's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall be provided by
the Custodian to the Fund or the Fund's authorized representative, and the Fund
shall reimburse the Custodian its expenses of providing such copies. Upon
reasonable request of the Fund, the Custodian shall provide in hard copy or on
micro-film, whichever the Custodian elects, any records included in any such
delivery which are maintained by the Custodian on a computer disc, or are
similarly maintained, and the Fund shall reimburse the Custodian for its
expenses of providing such hard copy or micro-film.
13. The Custodian shall provide the Fund with any report obtained by the
Custodian on the system of internal accounting control of the Book-Entry System,
the Depository or O.C.C., and with such reports on its own systems of internal
accounting control as the Fund may reasonably request from time to time.
14. The Fund agrees to indemnify the Custodian against and save the Custodian
harmless from all liability, claims, losses and demands whatsoever, including
attorney's fees, howsoever arising or incurred because of or in connection with
this Agreement, including the Custodian's payment or non-payment of checks
pursuant to paragraph 6 of Article XIII as part of any check redemption
privilege program of the Fund, except for any such liability, claim, loss and
demand arising out of the Custodian's own negligence or willful misconduct. For
any legal proceeding giving rise to the indemnification set forth above in this
paragraph, the Fund shall be entitled to defend or prosecute any claim in the
name of the Custodian at its own expense and through counsel of its own choosing
reasonably acceptable to the Custodian if it gives written notice to the
Custodian within ten (10) Business days of receiving notice of such claim.
Notwithstanding the foregoing, the Custodian may participate in the litigation
at its own expense and with counsel of its own choosing.
15. Subject to the foregoing provisions of this Agreement, including, without
limitation, those contained in Article XVI the Custodian may deliver and receive
Securities, and receipts with respect to such Securities, and arrange for
payments to be made and received by the Custodian in accordance with the customs
prevailing from time to time among brokers or dealers in such Securities. When
the Custodian is instructed to deliver Securities against payment, delivery of
such Securities and receipt of payment therefor may not be completed
simultaneously. The Fund assumes all responsibility and liability for all
credit risks involved in connection with the Custodian's delivery of Securities
pursuant to Certificates or instructions of the Fund or the Administrator which
responsibility and liability shall continue until final payment in full has been
received by the Custodian.
16. In the event the Custodian is advised by the Fund that the Fund is no longer
utilizing the services of the Administrator, then the Custodian shall furnish or
give to the Fund the statements or notices described above as to be furnished or
given to the Administrator.
17. The Custodian shall have no duties or responsibilities whatsoever except
such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied in this Agreement
against the Custodian. Without limiting the generality of the foregoing, the
Custodian shall have no duties or responsibilities by reason of any terms or
provisions in the Administration Agreement, and if such Administration Agreement
shall cease to be in effect the Custodian shall have no additional duties
hereunder.
ARTICLE XIX
TERMINATION
1. Either of the parties hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than ninety (90) days after the date of giving of such notice,
provided, however, that if such notice is sent by the Fund and recites that it
is being given contemporaneously with a termination of the Custody
Administration any Agency Agreement with FDISG, such notice may specify any date
of termination selected by the Fund. In the event such notice is given by the
Fund, it shall be accompanied by a copy of a resolution of the Board of Trustees
of the Fund, certified by the Secretary, the Clerk, any Assistant Secretary or
any Assistant Clerk, electing to terminate this Agreement and designating a
successor custodian or custodians, each of which shall be a bank or trust
company having not less than $2,000,000 aggregate capital, surplus and undivided
profits. In the event such notice is given by the Custodian, the Fund shall, on
or before the termination date, deliver to the Custodian a copy of a resolution
of the Board of Trustees of the Fund, certified by the Secretary, the Clerk, any
Assistant Secretary or any Assistant Clerk, designating a successor custodian or
custodians. In the absence of such designation by the Fund, the Custodian may
designate a successor custodian which shall be a bank or trust company having
not less than $2,000,000 aggregate capital, surplus and undivided profits. Upon
the date set forth in such notice this Agreement shall terminate, and the
Custodian shall upon receipt of a notice of acceptance by the successor
custodian on that date deliver directly to the successor custodian all
Securities and money then owned by the Fund and held by it as Custodian, after
deducting all fees, expenses and other amounts for the payment or reimbursement
of which it shall then be entitled.
2. If a successor custodian is not designated by the Fund or the Custodian in
accordance with the preceding paragraph, the Fund shall upon the date specified
in the notice of termination of this Agreement and upon the delivery by the
Custodian of all Securities (other than Securities held in the Book-Entry System
which cannot be delivered to the Fund) and money then owned by the Fund be
deemed to be its own custodian and the Custodian shall thereby be relieved of
all duties and responsibilities pursuant to this Agreement, other than the duty
with respect to Securities held in the Book Entry System which cannot be
delivered to the Fund to hold such Securities hereunder in accordance with this
Agreement.
ARTICLE XX
MISCELLANEOUS
1. Annexed hereto as Appendix A is a Certificate signed by two of the present
Officers of the Fund under its seal, setting forth the names and the signatures
of the present Officers. The Fund agrees to furnish to the Custodian a new
Certificate in similar form in the event that any such present Officer ceases to
be an Officer or in the event that other or additional Officers are elected or
appointed. Until such new Certificate shall be received, the Custodian shall be
fully protected in acting under the provisions of this Agreement upon Oral
Instructions or signatures of the present Officers as set forth in the last
delivered Certificate.
2. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Custodian, shall be sufficiently given if addressed
to the Custodian and mailed or delivered to it at its offices at 90 Washington
Street, New York, New York 10286, or at such other place as the Custodian may
from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Fund shall be sufficiently given if addressed to
the Fund and mailed or delivered to it at its office at the address for the Fund
first above written, or at such other place as the Fund may from time to time
designate in writing, and any notice or other instrument in writing authorized
or required to be given to the Administrator shall be sufficiently given if
addressed to the Administrator at such address as the Administrator may from
time to time designate in writing.
4. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the same formality as this
Agreement and approved by a resolution of the Board of Trustees of the Fund.
5. This Agreement shall extend to and shall be binding upon the parties hereto,
and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Fund without the written consent of the
Custodian, or by the Custodian without the written consent of the Fund,
authorized or approved by a resolution of the Fund's Board of Trustees.
6. This Agreement shall be construed in accordance with the laws of the State of
New York without giving effect to conflict of laws principles thereof. Each
party hereby consents to the jurisdiction of a state or federal court situated
in New York City, New York in connection with any dispute arising hereunder and
hereby waives its right to trial by jury.
7. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective Officers, thereunto duly authorized and their respective
seals to be hereunto affixed, as of the day and year first above written.
INVESTORS CAPITAL FUNDS
[SEAL] By: /s/ Theodore E. Charles
-------------------------------
Theodore E. Charles, President
Attest: /s/ Susan A. McCraine
--------------------------------
THE BANK OF NEW YORK
[SEAL] By: /s/ Jorge E. Ramos
--------------------------------
Jorge E. Ramos, V.P.
Attest: /s/ Nicholas A. Deliso
--------------------------------
<PAGE>
APPENDIX A
I, Thedore E. Charles, President and I,
, of INVESTORS CAPITAL FUNDS, a Delaware
business trust (the "Fund"), do hereby certify that:
The following individuals including officers and employees of the Administrator
have been duly authorized by the Board of Trustees of the Fund in conformity
with the Fund's Declaration of Trust and By-Laws to give Certificates or Oral
Instructions on behalf of the Fund, and the signatures set forth opposite their
respective names are their true and correct signatures:
Name Signature
Theodore E. Charles /s/ Theodore E. Charles
--------------------------------
<PAGE>
APPENDIX B
PORTFOLIO
INVESTORS CAPITAL TWENTY FUND
<PAGE>
APPENDIX C
I, Nicholas A. Deliso, an Assistant Vice President with THE BANK OF NEW YORK do
hereby designate the following publications:
The Bond Buyer
Depository Trust Company Notices
Financial Daily Card Service
JJ Kenney Municipal Bond Service
London Financial Times
New York Times
Standard & Poor's Called Bond Record
Wall Street Journal
EXHIBIT A
CERTIFICATION
The undersigned, Theodore E. Charles, hereby certifies that he or she is the
duly elected and acting President of INVESTORS CAPITAL FUNDS, a Delaware
business trust (the "Fund"), and further certifies that the following resolution
was adopted by the Board of Trustees of the Fund at a meeting duly held on
September 23, 1999, at which a quorum was at all times present and that such
resolution has not been modified or rescinded and is in full force and effect as
of the date hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to a Custody
Agreement between The Bank of New York and the Fund dated as of October 4,
1999, (the "Custody Agreement") is authorized and instructed on a continuous and
ongoing basis to deposit in the Book-Entry System, as defined in the Custody
Agreement, all securities eligible for deposit therein, regardless of the Series
to which the same are specifically allocated, and to utilize the Book-Entry
System to the extent possible in connection with its performance thereunder,
including, without limitation, in connection with settlements of purchases and
sales of securities, loans of securities, and deliveries and returns of
securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of INVESTORS
CAPITAL FUNDS, as of the 4th day of October, 1999.
/s/ Theodore E. Charles
--------------------------------
[SEAL]
EXHIBIT B
CERTIFICATION
The undersigned, Theodore E. Charles, hereby certifies that he or she is the
duly elected and acting President of INVESTORS CAPITAL FUNDS, a Delaware
business trust (the "Fund"), and further certifies that the following resolution
was adopted by the Board of Trustees of the Fund at a meeting duly held on
September 23, 1999, at which a quorum was at all times present and that such
resolution has not been modified or rescinded and is in full force and effect as
of the date hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to a Custody
Agreement between The Bank of New York and the Fund dated as of October
4, 1999, (the "Custody Agreement") is authorized and instructed on a continuous
and ongoing basis until such time as it receives a Certificate, as defined in
the Custody Agreement, to the contrary to deposit in the Depository, as defined
in the Custody Agreement, all securities eligible for deposit therein,
regardless of the Series to which the same are specifically allocated, and to
utilize the Depository to the extent possible in connection with its performance
thereunder, including, without limitation, in connection with settlements of
purchases and sales of securities, loans of securities, and deliveries and
returns of securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of INVESTORS
CAPITAL FUNDS, as of the 4th day of October, 1999.
/s/ Theodore E. Charles
--------------------------------
[SEAL]
EXHIBIT B-1
CERTIFICATION
The undersigned, Theodore E. Charles, hereby certifies that he or she is the
duly elected and acting President of INVESTORS CAPITAL FUNDS, a Delaware
business trust (the "Fund"), and further certifies that the following resolution
was adopted by the Board of Trustees of the Fund at a meeting duly held on
September 23, 1999, at which a quorum was at all times present and that such
resolution has not been modified or rescinded and is in full force and effect as
of the date hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to a Custody
Agreement between The Bank of New York and the Fund dated as of October 4, 1999,
(the "Custody Agreement") is authorized and instructed on a continuous and
ongoing basis until such time as it receives a Certificate, as defined in the
Custody Agreement, to the contrary to deposit in the Participants Trust Company
as Depository, as defined in the Custody Agreement, all securities eligible for
deposit therein, regardless of the Series to which the same are specifically
allocated, and to utilize the Participants Trust Company to the extent possible
in connection with its performance thereunder, including, without limitation, in
connection with settlements of purchases and sales of securities, loans of
securities, and deliveries and returns of securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of INVESTORS
CAPITAL FUNDS, as of the 4th day of October, 1999.
/s/ Theodore E. Charles
--------------------------------
[SEAL]
EXHIBIT C
CERTIFICATION
The undersigned, Theodore E. Charles, hereby certifies that he or she is the
duly elected and acting President of INVESTORS CAPITAL FUNDS, a Delaware
business trust (the "Fund"), and further certifies that the following resolution
was adopted by the Board of Trustees of the Fund at a meeting duly held on
September 23, 1999, at which a quorum was at all times present and that such
resolution has not been modified or rescinded and is in full force and effect as
of the date hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to a Custody
Agreement between The Bank of New York and the Fund dated as of October 4, 1999,
(the "Custody Agreement") is authorized and instructed on a continuous and
ongoing basis until such time as it receives a Certificate, as defined in the
Custody Agreement, to the contrary, to accept, utilize and act with respect to
Clearing Member confirmations for Options and transaction in Options, regardless
of the Series to which the same are specifically allocated, as such terms are
defined in the Custody Agreement, as provided in the Custody Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of INVESTORS
CAPITAL FUNDS, as of the 4th day of October, 1999.
/s/ Theodore E. Charles
--------------------------------
[SEAL]
EXHIBIT D
The undersigned, Theodore E. Charles, hereby certifies that he or she is the
duly elected and acting President of INVESTORS CAPITAL FUNDS, a Delaware
business trust (the "Fund"), further certifies that the following resolutions
were adopted by the Board of Trustees of the Fund at a meeting duly held on
September 23, 1999, at which a quorum was at all times present and that such
resolutions have not been modified or rescinded and are in full force and effect
as of the date hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to the Custody
Agreement between The Bank of New York and the Fund dated as of October 4, 1999
(the "Custody Agreement") is authorized and instructed on a continuous and
ongoing basis to act in accordance with, and to rely on Instructions (as defined
in the Custody Agreement).
RESOLVED, that the Fund shall establish access codes and grant use of such
access codes only to Officers of the Fund as defined in the Custody Agreement,
shall establish internal safekeeping procedures to safeguard and protect the
confidentiality and availability of user and access codes, passwords and
authentication keys, and shall use Instructions only in a manner that does not
contravene the Investment Company Act of 1940, as amended, or the rules and
regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of INVESTORS
CAPITAL FUNDS, as of the 4th day of October, 1999.
/s/ Theodore E. Charles
--------------------------------
[SEAL]
<PAGE>
EXHIBIT 23(h)
SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 23rd day of September, 1999 (the "Effective
Date") between INVESTORS CAPITAL FUNDS (the "Fund"), a Delaware Business Trust
having its principal place of business at 230 Broadway East, Suite 203,
Lynnfield , Massachusetts 01940 and FIRST DATA INVESTOR SERVICES GROUP, INC.
("Investor Services Group"), a Massachusetts corporation with principal offices
at 4400 Computer Drive, Westboro, Massachusetts 01581.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate series,
with each such series representing interests in a separate portfolio of
securities or other assets.
WHEREAS, the Fund initially intends to offer Shares in those Portfolios
identified in the attached Schedule A, each such Portfolio, together with all
other Portfolios subsequently established by the Fund shall be subject to this
Agreement in accordance with Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint
Investor Services Group as its administrator, fund accounting agent, transfer
agent, dividend disbursing agent and agent in connection with certain other
activities and Investor Services Group desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and Investor Services Group agree as follows:
Article 1. Definitions.
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended
from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether or not such
person is an officer or employee of the Fund, duly authorized to give
Oral Instructions or Written Instructions on behalf of the Fund as
indicated in writing to Investor Services Group from time to time.
(c) "Board Members" shall mean the Directors or Trustees of
the governing body of the Fund, as the case may be.
(d) "Board of Directors" shall mean the Board of Directors or
Board of Trustees of the Fund, as the case may be.
(e) "Commencement Date" shall mean the date on which Investor
Services Group commences providing services to the Fund pursuant to
this Agreement.
(f) "Commission" shall mean the Securities and Exchange
Commission.
(g) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time to time
deposit, or cause to be deposited or held under the name or account of
such a custodian pursuant to a Custodian Agreement.
(h) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(i) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(j) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by Investor Services Group from
a person reasonably believed by Investor Services Group to be an
Authorized Person;
(k) "Portfolio" shall mean each separate series of shares
offered by the Fund representing interests in a separate portfolio of
securities and other assets;
(l) "Prospectus" shall mean the most recently dated Fund
Prospectus and Statement of Additional Information, including any
supplements thereto if any, which has become effective under the
Securities Act of 1933 and the 1940 Act.
(m) "Shares" refers collectively to such shares of capital
stock or beneficial interest, as the case may be, or class thereof, of
each respective Portfolio of the Fund as may be issued from time to
time.
(n) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(o) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by Investor Services Group to be
an Authorized Person and actually received by Investor Services Group.
Written Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2. Appointment of Investor Services Group.
The Fund, on behalf of the Portfolios, hereby appoints and constitutes
Investor Services Group as its sole and exclusive transfer agent and dividend
disbursing agent for Shares of each respective Portfolio of the Fund and as
administrator, fund accounting agent, shareholder servicing agent for the Fund
and Investor Services Group hereby accepts such appointments and agrees to
perform the duties hereinafter set forth. This Agreement shall be effective as
of the Effective Date.
Article 3. Duties of Investor Services Group.
3.1 Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary services of
a transfer agent; acting as service agent in connection with dividend
and distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance,
transfer and redemption or repurchase (including coordination with the
Custodian) of Shares of each Portfolio, as more fully described in the
written schedule of Duties of Investor Services Group annexed hereto as
Schedule B and incorporated herein, and in accordance with the terms of
the Prospectus of the Fund on behalf of the applicable Portfolio,
applicable law and the procedures established from time to time between
Investor Services Group and the Fund.
(b) Recording the issuance of Shares and maintaining pursuant
to Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Portfolio which are authorized, based upon data provided
to it by the Fund, and issued and outstanding. Investor Services Group
shall provide the Fund on a regular basis with the total number of
Shares of each Portfolio which are authorized and issued and
outstanding and shall have no obligation, when recording the issuance
of Shares, to monitor the issuance of such Shares or to take cognizance
of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Fund.
(c) Investor Services Group shall be responsible for the
following: performing the customary services of an administrator,
including corporate secretarial, treasury and blue sky services, and
fund accounting agent for the Fund, as more fully described in the
written schedule of Duties of Investor Services Group annexed hereto as
Schedule B and incorporated herein, and subject to the supervision and
direction of the Board of Directors of the Fund.
(d) In addition to providing the foregoing services, the Fund
hereby engages Investor Services Group as its exclusive service
provider with respect to the Print/Mail Services as set forth in
Schedule C for the fees also identified in Schedule C. Investor
Services Group agrees to perform the services and its obligations
subject to the terms and conditions of this Agreement.
(e) Notwithstanding any of the foregoing provisions of this
Agreement, Investor Services Group shall be under no duty or obligation
to inquire into, and shall not be liable for: (i) the legality of the
issuance or sale of any Shares or the sufficiency of the amount to be
received therefor; (ii) the legality of the redemption of any Shares,
or the propriety of the amount to be paid therefor; (iii) the legality
of the declaration of any dividend by the Board of Directors, or the
legality of the issuance of any Shares in payment of any dividend; or
(iv) the legality of any recapitalization or readjustment of the
Shares.
3.2 In addition, the Fund shall (i) identify to Investor Services Group
in writing those transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of transactions for
each State on the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of Investor Services Group for the
Fund's blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
3.3 In performing its duties under this Agreement, Investor Services
Group: (a) will act in accordance with the Articles of Incorporation, By-Laws,
Prospectuses and with the Oral Instructions and Written Instructions of the Fund
and will conform to and comply with the requirements of the 1940 Act and all
other applicable federal or state laws and regulations; and (b) will consult
with legal counsel to the Fund, as necessary and appropriate. Furthermore,
Investor Services Group shall not have or be required to have any authority to
supervise the investment or reinvestment of the securities or other properties
which comprise the assets of the Fund or any of its Portfolios and shall not
provide any investment advisory services to the Fund or any of its Portfolios.
3.4 In addition to the duties set forth herein, Investor Services Group
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the Fund
and Investor Services Group.
Article 4. Recordkeeping and Other Information.
4.1 Investor Services Group shall create and maintain all records
required of it pursuant to its duties hereunder and as set forth in Schedule B
in accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. Where applicable, such records shall
be maintained by Investor Services Group for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, Investor
Services Group agrees that all such records prepared or maintained by Investor
Services Group relating to the services to be performed by Investor Services
Group hereunder are the property of the Fund and will be preserved, maintained
and made available in accordance with such section, and will be surrendered
promptly to the Fund on and in accordance with the Fund's request.
4.3 In case of any requests or demands for the inspection of
Shareholder records of the Fund, Investor Services Group will endeavor to notify
the Fund of such request and secure Written Instructions as to the handling of
such request. Investor Services Group reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by its counsel that
it may be held liable for the failure to comply with such request.
Article 5. Fund Instructions.
5.1 Investor Services Group will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Fund. Investor Services Group will also have no liability when
processing Share certificates which it reasonably believes to bear the proper
manual or facsimile signatures of the officers of the Fund and the proper
countersignature of Investor Services Group.
5.2 At any time, Investor Services Group may request Written
Instructions from the Fund and may seek advice from legal counsel for the Fund,
or its own legal counsel, with respect to any matter arising in connection with
this Agreement, and it shall not be liable for any action taken or not taken or
suffered by it in good faith in accordance with such Written Instructions or in
accordance with the opinion of counsel for the Fund or for Investor Services
Group. Written Instructions requested by Investor Services Group will be
provided by the Fund within a reasonable period of time.
5.3 Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is an
Authorized Person. The Fund agrees that all Oral Instructions shall be followed
within one business day by confirming Written Instructions, and that the Fund's
failure to so confirm shall not impair in any respect Investor Services Group's
right to rely on Oral Instructions.
Article 6. Compensation.
6.1 The Fund on behalf of each of the Portfolios will compensate
Investor Services Group for the performance of its obligations hereunder in
accordance with the fees and other charges set forth in the written Fee Schedule
annexed hereto as Schedule C and incorporated herein.
6.2 In addition to those fees set forth in Section 6.1 above, the Fund
on behalf of each of the Portfolios agrees to pay, and will be billed separately
for, out-of-pocket expenses incurred by Investor Services Group in the
performance of its duties hereunder. Out-of-pocket expenses shall include, but
shall not be limited to, the items specified in the written schedule of
out-of-pocket charges annexed hereto as Schedule D and incorporated herein.
Schedule D may be modified by written agreement between the parties. Unspecified
out-of-pocket expenses shall be limited to those out-of-pocket expenses
reasonably incurred by Investor Services Group in the performance of its
obligations hereunder.
6.3 The Fund on behalf of each of the Portfolios agrees to pay all
fees, charges and out-of-pocket expenses to Investor Services Group by Federal
Funds Wire within fifteen (15) business days following the receipt of the
respective invoice. In addition, with respect to all fees under this Agreement,
Investor Services Group may charge a service fee equal to the lesser of (i) one
and one half percent (1 1/2%) per month or (ii) the highest interest rate
legally permitted on any past due invoiced amounts, provided however, the
foregoing service fee shall not apply if the Fund in good faith legitimately
disputes any invoice amount in which case the Fund shall do the following within
thirty (30) days of the postmark date: (a) pay Investor Services Group the
undisputed amount of the invoice; and (b) provide Investor Services Group a
detailed written description of the disputed amount and the basis for the Fund's
dispute with such amount. In addition, the Fund shall cooperate with Investor
Services Group in resolving disputed invoice amounts and then promptly paying
such amounts determined to be due.
6.4 Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule C, a revised Fee Schedule executed and dated by
the parties hereto.
6.5 The Fund acknowledges that the fees and charges that Investor
Services Group charges the Fund under this Agreement reflect the allocation of
risk between the parties, including the disclaimer of warranties in Section 9.3
and the limitations on liability and exclusion of remedies in Section 11.2 and
Article 12. Modifying the allocation of risk from what is stated here would
affect the fees that Investor Services Group charges, and in consideration of
those fees, the Fund agrees to the stated allocation of risk.
6.6 Investor Services Group will from time to time employ or associate
with itself such person or persons as Investor Services Group may believe to be
particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
Investor Services Group and the Fund. The compensation of such person or persons
shall be paid by Investor Services Group and no obligation shall be incurred on
behalf of the Fund in such respect.
6.7 Investor Services Group shall not be required to pay any of the
following expenses incurred by the Fund: membership dues in the Investment
Company Institute or any similar organization; investment advisory expenses;
costs of printing and mailing stock certificates, prospectuses, reports and
notices; interest on borrowed money; brokerage commissions; stock exchange
listing fees; taxes and fees payable to Federal, state and other governmental
agencies; fees of Board Members of the Fund who are not affiliated with Investor
Services Group; outside auditing expenses; outside legal expenses; Blue Sky
registration or filing fees; or other expenses not specified in this Section 6.7
which may be properly payable by the Fund. Investor Services Group shall not be
required to pay any Blue Sky registration or filing fees unless and until it has
received the amount of such fees from the Fund.
Article 7. Documents.
In connection with the appointment of Investor Services Group, the Fund
shall, on or before the date this Agreement goes into effect, but in any case
within a reasonable period of time for Investor Services Group to prepare to
perform its duties hereunder, deliver or caused to be delivered to Investor
Services Group the documents set forth in the written schedule of Fund Documents
annexed hereto as Schedule E.
Article 8. Investor Services Group System.
8.1 Investor Services Group shall retain title to and ownership of any
and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by Investor Services
Group in connection with the services provided by Investor Services Group to the
Fund herein (the "Investor Services Group System").
8.2 Investor Services Group hereby grants to the Fund a limited license
to the Investor Services Group System for the sole and limited purpose of having
Investor Services Group provide the services contemplated hereunder and nothing
contained in this Agreement shall be construed or interpreted otherwise and such
license shall immediately terminate with the termination of this Agreement.
8.3 In the event that the Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund is provided with direct
access to the Investor Services Group System for either account inquiry or to
transmit transaction information, including but not limited to maintenance,
exchanges, purchases and redemptions, such direct access capability shall be
limited to direct entry to the Investor Services Group System by means of
on-line mainframe terminal entry or PC emulation of such mainframe terminal
entry and any other non-conforming method of transmission of information to the
Investor Services Group System is strictly prohibited without the prior written
consent of Investor Services Group.
Article 9. Representations and Warranties.
9.1 Investor Services Group represents and warrants to the Fund that:
(a) it is a corporation duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory
agency as a transfer agent and such registration will remain in effect
for the duration of this Agreement; and
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9.2 The Fund represents and warrants to Investor Services Group that:
(a) it is duly organized, existing and in good standing under
the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to authorize
it to enter into this Agreement;
(d) a registration statement under the Securities Act of 1933,
as amended, and the 1940 Act on behalf of each of the Portfolios is
currently effective and will remain effective, and all appropriate
state securities law filings have been made and will continue to be
made, with respect to all Shares of the Fund being offered for sale;
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with
the terms of the Fund's Articles of Incorporation and its Prospectus
with respect to each Portfolio, such Shares shall be validly issued,
fully paid and non-assessable; and
(f) as of the date hereof, each Portfolio is duly registered
and lawfully eligible for sale in each jurisdiction indicated for such
Portfolio on the list furnished to Investor Services Group pursuant to
Article 7 of this Agreement and that it will notify Investor Services
Group immediately of any changes to the aforementioned list.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, INVESTOR SERVICES GROUP DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF
ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS
PROVIDED INCIDENTAL TO SERVICES PROVIDED UNDER THIS AGREEMENT. INVESTOR SERVICES
GROUP DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE
SET FORTH IN THIS AGREEMENT.
Article 10. Indemnification.
10.1 Investor Services Group shall not be responsible for and the Fund
on behalf of each Portfolio shall indemnify and hold Investor Services Group
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against Investor Services Group or for
which Investor Services Group may be held to be liable (a "Claim") arising out
of or attributable to any of the following:
(a) any actions of Investor Services Group required to be
taken pursuant to this Agreement unless such Claim resulted from a
negligent act or omission to act or bad faith by Investor Services
Group in the performance of its duties hereunder;
(b) Investor Services Group's reasonable reliance on, or
reasonable use of information, data, records and documents (including
but not limited to magnetic tapes, computer printouts, hard copies and
microfilm copies) received by Investor Services Group from the Fund, or
any authorized third party acting on behalf of the Fund, including but
not limited to the prior transfer agent for the Fund, in the
performance of Investor Services Group's duties and obligations
hereunder;
(c) the reliance on, or the implementation of, any Written or
Oral Instructions or any other instructions or requests of the Fund on
behalf of the applicable Portfolio;
(d) the offer or sales of shares in violation of any
requirement under the securities laws or regulations of any state that
such shares be registered in such state or in violation of any stop
order or other determination or ruling by any state with respect to the
offer or sale of such shares in such state; and
(e) the Fund's refusal or failure to comply with the terms of
this Agreement, or any Claim which arises out of the Fund's negligence
or misconduct or the breach of any representation or warranty of the
Fund made herein.
10.2 The Fund agrees and acknowledges that Investor Services Group has
not prior to the date hereof assumed, and will not assume, any obligations or
liabilities arising out of the conduct by the Company prior to the date hereof
of those duties which Investor Services Group has agreed to perform pursuant to
this Agreement. The Fund further agrees to indemnify Investor Services Group
against any losses, claims, damages or liabilities to which Investor Services
Group may become subject in connection with the conduct by the Fund or its agent
of such duties prior to the date hereof.
10.3 In any case in which the Fund may be asked to indemnify or hold
Investor Services Group harmless, Investor Services Group will notify the Fund
promptly after identifying any situation which it believes presents or appears
likely to present a claim for indemnification against the Fund although the
failure to do so shall not prevent recovery by Investor Services Group and shall
keep the Fund advised with respect to all developments concerning such
situation. The Fund shall have the option to defend Investor Services Group
against any Claim which may be the subject of this indemnification, and, in the
event that the Fund so elects, such defense shall be conducted by counsel chosen
by the Fund and satisfactory to Investor Services Group, and thereupon the Fund
shall take over complete defense of the Claim and Investor Services Group shall
sustain no further legal or other expenses in respect of such Claim. Investor
Services Group will not confess any Claim or make any compromise in any case in
which the Fund will be asked to provide indemnification, except with the Fund's
prior written consent. The obligations of the parties hereto under this Article
10 shall survive the termination of this Agreement.
10.4 Any claim for indemnification under this Agreement must be made
prior to the earlier of:
(a) one year after the Investor Services Group becomes aware
of the event for which indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
Investor Services Group's sole and exclusive remedy for claims or other actions
or proceedings to which the Fund's indemnification obligations pursuant to this
Article 10 may apply.
Article 11. Standard of Care.
11.1 Investor Services Group shall at all times act in good faith and
agrees to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Fund unless said errors are caused by
Investor Services Group's own negligence, bad faith or willful misconduct or
that of its employees.
11.2 Notwithstanding any provision in this Agreement to the contrary,
Investor Services Group's cumulative liability (to the Fund) for all losses,
claims, suits, controversies, breaches, or damages for any cause whatsoever
(including but not limited to those arising out of or related to this Agreement)
and regardless of the form of action or legal theory shall not exceed the lesser
of (i) $500,000 or (ii) the fees received by Investor Services Group for
services provided under this Agreement during the twelve months immediately
prior to the date of such loss or damage. Fund understands the limitation on
Investor Services Group's damages to be a reasonable allocation of risk and Fund
expressly consents with respect to such allocation of risk. In allocating risk
under the Agreement, the parties agree that the damage limitation set forth
above shall apply to any alternative remedy ordered by a court in the event such
court determines that sole and exclusive remedy provided for in the Agreement
fails of its essential purpose.
11.3 Neither party may assert any cause of action against the other
party under this Agreement that accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration proceedings) alleging such
cause of action.
11.4 Each party shall have the duty to mitigate damages for which the
other party may become responsible.
Article 12. Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL INVESTOR SERVICES GROUP, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF
TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST
PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS
OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 13. Term and Termination.
13.1 This Agreement shall be effective on the date first written above
and shall continue for a period of five (5) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years ("Renewal Terms")
each, unless the Fund or Investor Services Group provides written notice to the
other of its intent not to renew. Such notice must be received not less than
ninety (90) days and not more than one-hundred eighty (180) days prior to the
expiration of the Initial Term or the then current Renewal Term.
13.3 In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and conversion
thereof to a successor transfer agent will be borne by the Fund.
13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days written notice of such termination to
the Defaulting Party. If Investor Services Group is the Non-Defaulting Party,
its termination of this Agreement shall not constitute a waiver of any other
rights or remedies of Investor Services Group with respect to services performed
prior to such termination of rights of Investor Services Group to be reimbursed
for out-of-pocket expenses. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the Defaulting
Party.
13.5 Notwithstanding anything contained in this Agreement to the
contrary, should the Fund desire to move any of the services provided by
Investor Services Group hereunder to a successor service provider prior to the
expiration of the then current Initial or Renewal Term, or should the Fund or
any of its affiliates take any action which would result in Investor Services
Group ceasing to provide transfer agency, administration or fund accounting
services to the Fund prior to the expiration of the Initial or any Renewal Term,
Investor Services Group shall make a good faith effort to facilitate the
conversion on such prior date, however, there can be no guarantee that Investor
Services Group will be able to facilitate a conversion of services on such prior
date. In connection with the foregoing, should services be converted to a
successor service provider or should the Fund or any of its affiliates take any
action which would result in Investor Services Group ceasing to provide transfer
agency, administration or fund accounting services to the Fund prior to the
expiration of the Initial or any Renewal Term, the payment of fees to Investor
Services Group as set forth herein shall be accelerated to a date prior to the
conversion or termination of services and calculated as if the services had
remained with Investor Services Group until the expiration of the then current
Initial or Renewal Term and calculated at the asset and/or Shareholder account
levels, as the case may be, on the date notice of termination was given to
Investor Services Group.
Article 14. Additional Portfolios
14.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Schedule A, with respect to which the Fund
desires to have Investor Services Group render services as transfer agent under
the terms hereof, the Fund shall so notify Investor Services Group in writing,
and if Investor Services Group agrees in writing to provide such services,
Exhibit 1 shall be amended to include such additional Portfolios.
Article 15. Confidentiality.
15.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The Fund
and Investor Services Group shall exercise at least the same degree of care, but
not less than reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to protect its own
confidential information of a similar nature. The Fund and Investor Services
Group shall not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior written
permission of the other party. The Fund and Investor Services Group may,
however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed in
breach of this Agreement. The Fund and Investor Services Group may also disclose
the Confidential Information to independent contractors, auditors, and
professional advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either the Fund or
Investor Services Group disclose the Confidential Information to any competitor
of the other without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles, sales
estimates, business plans, and internal performance results relating to
the past, present or future business activities of the Fund or Investor
Services Group, their respective subsidiaries and affiliated companies
and the customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or
Investor Services Group a competitive advantage over its competitors;
and
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
15.3 Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either party
which now exist or come into the control or possession of the other.
15.4 The obligations of confidentiality and restriction on use herein
shall not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this
Agreement or subsequently came into the public domain through no fault
of such party; or
(b) Was lawfully received by the party from a third party free
of any obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to
receipt thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after all reasonable legal remedies for
maintaining such information in confidence have been exhausted
including, but not limited to, giving the other party as much advance
notice of the possibility of such disclosure as practical so the other
party may attempt to stop such disclosure or obtain a protective order
concerning such disclosure; or
(f) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the
Confidential Information disclosed under this Agreement.
Article 16. Force Majeure; Excused Non-Performance.
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or delay
is caused, directly or indirectly, by (i) fire, flood, elements of nature or
other acts of God; (ii) any outbreak or escalation of hostilities, war, riots or
civil disorders in any country, (iii) any act or omission of the other party or
any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to satisfy); or
(v) nonperformance by a third party or any similar cause beyond the reasonable
control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In addition, no party shall be liable for
any default or delay in the performance of its obligations under this Agreement
if and to the extent that such default or delay is caused, directly or
indirectly, by the actions or inactions of the other party. In any such event,
the non-performing party shall be excused from any further performance and
observance of the obligations so affected only for as long as such circumstances
prevail and such party continues to use commercially reasonable efforts to
recommence performance or observance as soon as practicable.
Article 17. Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
Investor Services Group may, in its sole discretion, assign all its right, title
and interest in this Agreement to an affiliate, parent or subsidiary, or to the
purchaser of substantially all of its business. Investor Services Group may, in
its sole discretion, engage subcontractors to perform any of the obligations
contained in this Agreement to be performed by Investor Services Group.
Article 18. Arbitration.
18.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered by the
American Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
18.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article 18.
Article 19. Notice.
Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Fund or Investor Services Group, shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Fund:
Attention: __________________
To Investor Services Group:
First Data Investor Services Group, Inc.
4400 Computer Drive
Westboro, Massachusetts 01581
Attention: President
with a copy to Investor Services Group's General Counsel
Article 20. Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this agreement. All actions arising from or related to this Agreement shall be
brought in the state and federal courts sitting in the City of Boston, and
Investor Services Group and the Fund hereby submit themselves to the exclusive
jurisdiction of those courts.
Article 21. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 22. Captions.
The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Article 23. Publicity.
Neither Investor Services Group nor the Fund shall release or publish
news releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without the prior
review and written approval of the other party; provided, however, that either
party may make such disclosures as are required by legal, accounting or
regulatory requirements after making reasonable efforts in the circumstances to
consult in advance with the other party.
Article 24. Relationship of Parties/Non-Solicitation.
24.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
24.2 During the term of this Agreement and for one (1) year afterward,
the Fund shall not recruit, solicit, employ or engage, for the Fund or others,
Investor Services Group's employees.
Article 25. Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. A party's waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
25.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
Article 26. Miscellaneous.
The Fund and Investor Services Group agree that the obligations of the
Fund under the Agreement shall not be binding upon any of the Board Members,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Fund individually, but are binding only upon the assets and
property of the Fund, as provided in the Articles of Incorporation. The
execution and delivery of this Agreement have been authorized by the Board
Members of the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by such Board Members nor such execution
and delivery by such officer shall be deemed to have been made by any of them or
any shareholder of the Fund individually or to impose any liability on any of
them or any shareholder of the Fund personally, but shall bind only the assets
and property of the Fund as provided in the Articles of Incorporation.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
INVESTORS CAPITAL FUNDS
By: /s/ Theodore E. Charles
-------------------------
Title: President
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/ Kenneth J. Kempf
-------------------------
Title: Senior Vice President
<PAGE>
SCHEDULE A
Investors Capital Funds
Investors Capital Net Fund Class A Shares
Investors Capital Net Fund Class C Shares
Investors Capital Twenty Fund Class A Shares
Investors Capital Twenty Fund Class C Shares
<PAGE>
SCHEDULE B
DUTIES OF INVESTOR SERVICES GROUP
I. FUND ACCOUNTING SERVICES
Daily Accounting Services
1) Calculate Net Asset Value Per Share:
o Update the daily market value of securities held by the Fund using
Investor Services Group's standard agents for pricing domestic
equity and bond securities as approved y the Fund's Board of
Directors.
o If necessary, enter limited number of manual prices supplied by the
Fund.
o Prepare NAV proof sheet. Review components of change in NAV for
reasonableness.
o Review variance reporting on-line and in hard copy for price changes
in individual securities using variance levels established by the
Fund. Verify U.S. dollar security prices exceeding variance levels
by notifying the Fund and pricing sources of noted variance.
o Review for ex-dividend items indicated by pricing sources; trace to
general ledger for agreement.
o Communicate required pricing information (NAV) to the Fund, Transfer
Agent and, electronically, to NASDAQ.
2) Determine and Report Cash Availability to Trust by Approximately
9:30 AM Eastern Time:
o Receive daily cash and transaction statements from the Custodian by
8:30 AM Eastern time.
o Receive previous day shareholder activity reports from the Fund's
Transfer Agent by 8:30 AM Eastern time.
o Fax hard copy Cash Availability calculations with all details to
Trust.
o Supply Fund with 5-day cash projection report.
o Prepare and complete daily bank cash reconciliation's including
documentation of any reconciling items and notify the Custodian and
the Fund.
3) Reconcile and Record All Daily Expense Accruals:
o Accrue expenses based on Fund supplied budget either as percentage
of Fund's net assets or specific dollar amounts.
o If applicable, monitor expense limitations established by Fund.
o If applicable, accrue daily amortization of Organizational Expense.
o If applicable, complete daily accrual of 12b-1 expenses.
4) Verify and Record All Daily Income Accruals for Debt Issues:
o Review and verify all system generated Interest and Amortization
reports.
o Establish unique security codes for bond issues to permit segregated
Trial Balance income reporting.
5) Monitor Securities Held for Cash Dividends, corporate actions and
capital changes such as splits, mergers, spin-offs, etc. and process
appropriately.
o Monitor electronically received information from pricing vendors for
all domestic securities.
o Review current daily security trades for dividend activity.
o Interface with custodian to monitor timely collection and postings
of corporate actions, dividends and interest.
6) Enter All Security Trades based on written instructions from the Fund.
o Review system verification of trade and interest calculations.
o Verify settlement through the Custodian statements.
o Maintain security ledger transaction reporting.
o Maintain tax lot holdings.
o Determine realized gains or losses on security trades.
o Provide complete broker commission reporting.
7) Enter All Trust Share Transactions:
o Process activity identified on the Transfer Agent reports.
o Verify settlement through the Custodian statements.
o Reconcile to the Investor Services Group Transfer Agent report
balances.
8) Prepare and Reconcile/Prove Accuracy of the Daily Trial Balance
(listing all asset, liability, equity, income and expense accounts)
o Post manual entries to the general ledger.
o Post custodian bank activity.
o Post shareholder and security transactions.
o Post and verify system-generated activity, i.e., income and expense
accruals.
o Prepare general ledger net cash proof used in NAV calculation
9) Review and Reconcile With Custodian Statements:
o Verify all posted interest, dividends, expenses, and shareholder and
security payments/receipts, etc. (Discrepancies will be reported to
and resolved by the Custodian.)
o Post all cash settlement activity to the Trial Balance.
o Reconcile to ending cash balance accounts.
o Clear subsidiary reports with settled amounts.
o Track status of past due items and failed trades handled by the
Custodian.
10) Submission of Daily Accounting Reports to the Fund: (Additional reports
readily available.)
- Trial Balance.
- Portfolio Valuation (listing inclusive of holdings, costs, market
values, unrealized appreciation/depreciation and percentage of
portfolio comprised of each security).
- NAV Calculation Report.
- Cash Availability and 5 day Cash Projection Report.
MONTHLY ACCOUNTING SERVICES
1) Full Financial Statement Preparation (automated Statements of Assets
and Liabilities, of Operations and of Changes in Net Assets) and
submission to the Fund by 10th business day.
2) Submission of Monthly Reports to the Fund:
o Security Purchase/Sales Journal.
o Interest and Maturity Report.
o Brokers Ledger (Commission Report).
o Security Ledger Transaction Report with Realized Gains/Losses.
o Security Ledger Tax Lot Holdings Report.
o Additional reports available upon request.
3) Reconcile Accounting Asset Listing to Custodian Asset Listing:
o Report any security balance discrepancies to the Custodian and the
Fund.
4) Provide Monthly Analysis and Reconciliation of Additional Trial Balance
Accounts, such as:
o Security cost and realized gains/losses.
o Interest/dividend receivable and income.
o Payable/receivable for securities purchased and sold.
o Payable/receivable for fund shares; issued and redeemed.
o Expense payments and accruals analysis.
5) If Appropriate, Prepare and Submit to the Fund: o SEC yield reporting
(non-money market funds).
o Income by state reporting.
o Standard Industry Code Valuation Report.
o Alternative Minimum Tax Income segregation schedule.
ANNUAL (AND SEMI-ANNUAL) ACCOUNTING SERVICES
1) Assist and supply auditors with schedules supporting securities and
shareholder transactions, income and expense accruals, etc. during the
year in accordance with standard audit assistance requirements.
2) Provide NSAR Reporting (Accounting Questions):
If applicable, answer the following items:
2, 12B, 20, 21, 22, 23, 28, 30A, 31, 32, 35, 36, 37, 43, 53, 55, 62,
63, 64B, 71, 72, 73, 74, 75, 76
NOTE: Complete NSAR reporting is provided by Investor Services Groups'
Administration Group.
II FUND ADMINISTRATION SERVICES
REGULATORY COMPLIANCE
A. Compliance - Investment Company Act of 1940
1. Review, report and renew
a. investment advisory contracts
b. fidelity bond
c. underwriting contracts
d. distribution (12(b)-1) plans - includes NASD
Rule 26 calculations
e administration contracts
f. accounting contracts
g. custody contracts
h. transfer agent and shareholder services
2. Filings.
a. N-SAR (semi-annual report)
b. N-1A (prospectus), post-effective amendments
and supplements ("stickers")
c. 24f-2 indefinite registration of shares
d. filing fidelity bond under 17g-1
e. filing shareholder reports under 30b2-1
B. Performing "Blue Sky" compliance functions, as follows:
1. Effecting and maintaining, as the case may be, the
registration of Shares of the Fund for sale under
the securities laws of the jurisdictions listed in
the Written Instructions of the Fund, which
instructions will include the amount of Shares to
be registered as well as the warning threshold to
be maintained. Any Written Instructions not
received at least 45 days prior to the date the
Fund intends to offer or sell its Shares cannot be
guaranteed a timely notification to the states. In
addition, Investor Services Group shall not be
responsible for providing to any other service
provider of the Fund a list of the states in which
the Fund may offer and sell its Shares.
2. Filing with each appropriate jurisdiction the
appropriate materials relating to the Fund. The
Fund shall be responsible for providing such
materials to Investor Services Group, and Investor
Services Group shall make such filings promptly
after receiving such materials.
3. Providing to the Fund quarterly reports of sales
activity in each jurisdiction in accordance with
the Written Instructions of the Fund. Sales will be
reported by shareholder residence. NSCC trades and
order clearance will be reported by the state
provided by the dealer at the point of sale. Trades
by omnibus accounts will be reported by trustee
state of residence in accordance with the Written
Instructions of the Fund outlining the entities
which are permitted to maintain omnibus positions
with the Fund.
4. In the event sales of Shares in a particular
jurisdiction reach or exceed the warning levels
provided in the Written Instructions of the Fund,
Investor Services Group will promptly notify the
Fund with a recommendation of the amount of Shares
to be registered in such jurisdiction and the fee
for such registration. Investor Services Group will
not register additional Shares in such jurisdiction
unless and until Investor Services Group shall have
received written instructions from the Fund to do
so.
5. If Investor Services Group is instructed by the
Fund not to register Shares in a particular
jurisdiction, Investor Services Group will use its
best efforts to cause any sales in such
jurisdictions to be blocked, and such sales will
not be reported to Investor Services Group as sales
of Shares of the Fund.
C. Compliance - Other
1. applicable stock exchange rules
2. applicable state tax laws
Corporate Business and Shareholder/Public Information
A. Trustees/Management
1. Preparation of meetings
a. agendas - all necessary items of compliance
b. keep attendance records
c. maintain corporate records/minute book
B. Maintain Corporate Calendars and Files
1. General
2. Blue sky
C. Release Corporate Information
1. To shareholders
2. To financial and general press
3. To industry publications
a. distributions (dividends and capital gains)
b. tax information
c. changes to prospectus
d. letters from management
e. funds' performance
4. Respond to:
a. financial press
b. miscellaneous shareholders inquiries
c. industry questionnaires
FINANCIAL AND MANAGEMENT REPORTING
A. Income and Expenses
1. preparation of budgets
2. expense figures calculated and accrual levels set
3. monitoring of expenses
4. approve and authorize payment of expenses
5. projection of income
6. checking account reconciliation
B. Distributions to Shareholders
1. Projections of distribution amounts
a. compliance with income tax provisions
b. compliance with excise tax provisions
c. compliance with Investment Company Act of 1940
2. Compilation and reclassification of distributions,
where applicable, for year end tax reporting to
shareholders
C. Financial Reporting
1. preparation of unaudited and audited reports to
shareholders
2. 60 day delivery to SEC and shareholders
3. preparation of semi-annual and annual N-SAR's
4. liaison between fund management and printers for
financial reports
D. Subchapter M Compliance
1. Asset diversification test
2. Income qualification test
E. Other Financial Analyses
1. Sales information, portfolio turnover (monthly)
2. Work closely with independent auditors on return of
capital presentation, excise tax calculation
3. Performance (total return) calculation (monthly)
4. 1099 Miscellaneous - prepared and filed for
Directors/Trustees (annual)
5 Analysis of interest derived from various
Government obligations (annual) (if interest income
was distributed in a calendar year)
6. Review and characterize 1099-Dividend Forms
7. Prepare and coordinate with printer and the
printing and mailing of 1099-Dividend Insert Cards
F. Review and Monitoring Functions
1. Review NAV calculations
2. Coordinate and review transfer agent, accounting
and custody functions
3. Review accruals, expenditures and payment trail
commissions where applicable
G. Preparation and distribution of periodic operation
reports to management
H. Monitor money market funds under Rule 2a-7
III TRANSFER AGENT/SHAREHOLDER SERVICES
(a) Shareholder Information. Investor Services Group shall maintain a
record of the number of Shares held by each Shareholder of record which shall
include name, address, taxpayer identification and which shall indicate whether
such Shares are held in certificates or uncertificated form.
(b) Shareholder Services. Investor Services Group shall respond as
appropriate to all inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as may be from
time to time mutually agreed upon between Investor Services Group and the Fund.
(c) Share Certificates.
o At the expense of the Fund, the Fund shall supply Investor Services
Group with an adequate supply of blank share certificates to meet
Investor Services Group requirements therefor. Such Share
certificates shall be properly signed by facsimile. The Fund agrees
that, notwithstanding the death, resignation, or removal of any
officer of the Fund whose signature appears on such certificates,
Investor Services Group or its agent may continue to countersign
certificates which bear such signatures until otherwise directed by
Written Instructions.
o Investor Services Group shall issue replacement Share certificates
in lieu of certificates which have been lost, stolen or destroyed,
upon receipt by Investor Services Group of properly executed
affidavits and lost certificate bonds, in form satisfactory to
Investor Services Group, with the Fund and Investor Services Group
as obligees under the bond.
o Investor Services Group shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open accounts
or uncertificated form (i.e., no certificate being issued with
respect thereto) Investor Services Group shall maintain comparable
records of the Shareholders thereof, including their names,
addresses and taxpayer identification. Investor Services Group shall
further maintain a stop transfer record on lost and/or replaced
certificates.
(d) Mailing Communications to Shareholders; Proxy Materials. Investor
Services Group will address and mail to Shareholders of the Fund, all reports to
Shareholders, dividend and distribution notices and proxy material for the
Fund's meetings of Shareholders. In connection with meetings of Shareholders,
Investor Services Group will prepare Shareholder lists, mail and certify as to
the mailing of proxy materials, process and tabulate returned proxy cards,
report on proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
(e) Sales of Shares.
o Investor Services Group shall not be required to issue any Shares of
the Fund where it has received a Written Instruction from the Fund
or official notice from any appropriate authority that the sale of
the Shares of the Fund has been suspended or discontinued. The
existence of such Written Instructions or such official notice shall
be conclusive evidence of the right of Investor Services Group to
rely on such Written Instructions or official notice.
o In the event that any check or other order for the payment of money
is returned unpaid for any reason, Investor Services Group will
endeavor to: (i) give prompt notice of such return to the Fund or
its designee; (ii) place a stop transfer order against all Shares
issued as a result of such check or order; and (iii) take such
actions as Investor Services Group may from time to time deem
appropriate.
(f) Transfer and Repurchase.
o Investor Services Group shall process all requests to transfer or
redeem Shares in accordance with the transfer or repurchase
procedures set forth in the Fund's Prospectus.
o Investor Services Group will transfer or repurchase Shares upon
receipt of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly endorsed for
transfer or redemption, accompanied by such documents as Investor
Services Group reasonably may deem necessary.
o Investor Services Group reserves the right to refuse to transfer or
repurchase Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. Investor Services Group also
reserves the right to refuse to transfer or repurchase Shares until
it is satisfied that the requested transfer or repurchase is legally
authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or repurchases which Investor Services
Group, in its good judgement, deems improper or unauthorized, or
until it is reasonably satisfied that there is no basis to any
claims adverse to such transfer or repurchase.
o When Shares are redeemed, Investor Services Group shall, upon
receipt of the instructions and documents in proper form, deliver to
the Custodian and the Fund or its designee a notification setting
forth the number of Shares to be repurchased. Such repurchased
shares shall be reflected on appropriate accounts maintained by
Investor Services Group reflecting outstanding Shares of the Fund
and Shares attributed to individual accounts.
o Investor Services Group shall upon receipt of the monies provided to
it by the Custodian for the repurchase of Shares, pay such monies as
are received from the Custodian, all in accordance with the
procedures described in the written instruction received by Investor
Services Group from the Fund.
o Investor Services Group shall not process or effect any repurchase
with respect to Shares of the Fund after receipt by Investor
Services Group or its agent of notification of the suspension of the
determination of the net asset value of the Fund.
(g) Dividends.
o Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to
Shares of the Fund, the Fund shall furnish or cause to be furnished
to Investor Services Group Written Instructions setting forth the
date of the declaration of such dividend or distribution, the
ex-dividend date, the date of payment thereof, the record date as of
which Shareholders entitled to payment shall be determined, the
amount payable per Share to the Shareholders of record as of that
date, the total amount payable on the payment date and whether such
dividend or distribution is to be paid in Shares at net asset value.
o On or before the payment date specified in such resolution of the
Board of Directors, the Fund will provide Investor Services Group
with sufficient cash to make payment to the Shareholders of record
as of such payment date.
o If Investor Services Group does not receive sufficient cash from the
Fund to make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, Investor Services
Group will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until sufficient cash
is provided to Investor Services Group.
(h) Retirement Plans. In connection with the individual retirement
account, simplified employee pension plan, rollover individual retirement plan,
educational IRA and ROTH individual retirement account (each hereinafter
referred to as an "IRA" and, collectively, the "IRAs") within the meaning of
Section 408 of the Internal Revenue Code of 1986, as amended (the "Code")
offered by the Fund for which contributions of the Funds' shareholders (the
"Participants") in the IRA's are invested in shares of the Fund, Investor
Services Group shall provide the following administrative services in addition
to those services described herein:
o Establish a record of types and reasons for distributions (i.e.,
attainment of age 59-1/2, disability, death, return of excess
contributions, etc.);
o Record method of distribution requested and/or made;
o Receive and process designation of the beneficiary forms;
o Examine and process requests for direct transfers between
custodians/trustees, transfer and pay over to the successor assets
in the account and records pertaining thereto as requested;
o Prepare any annual reports or returns required to be prepared and/or
filed by a custodian of an IRA, including, but not limited to, an
annual fair market value report, Forms 1099R and 5498 and file with
the IRS and provide to Participant/Beneficiary; and
o Perform applicable federal withholding and send
Participants/Beneficiaries an annual TEFRA notice regarding required
federal tax withholding.
(i) Cash Management Services. Funds received by Investor Services Group
in the course of performing its services hereunder will be held in bank accounts
and/or money market fund accounts. With respect to funds maintained in money
market fund accounts, Investor Services Group shall retain any interest
generated or earned. With respect to funds maintained in bank accounts, Investor
Services Group shall retain any excess balance credits or excess benefits earned
or generated by or associated with such bank accounts or made available by the
institution at which such bank accounts are maintained after such balance
credits or benefits are first applied towards banking service fees charged by
such institution in connection with banking services provided on behalf of the
Fund.
(j) Lost Shareholders. Investor Services Group shall perform such
services as are required in order to comply with Rules 17a-24 and 17Ad-17 of the
34 Act (the Lost Shareholder Rules"), including, but not limited to those set
forth below. Investor Services Group may, in its sole discretion, use the
services of a third party to perform the some or all such services.
o documentation of electronic search policies and procedures;
o execution of required searches;
o creation and mailing of confirmation letters;
o taking receipt of returned verification forms;
o providing confirmed address corrections in batch via electronic
media;;
o tracking results and maintaining data sufficient to comply with the
Lost Shareholder Rules; and
o preparation and submission of data required under the Lost
Shareholder Rules.
* Separate fees will apply for these services.
IV CUSTODY ADMINISTRATION SERVICES
o Assign an experienced Custody Administrator to accept, control and
process the Fund's daily portfolio transactions.
o Match and review DTC eligible ID's and trade information with the
Fund's instructions for accuracy and coordinating with the Custodian
and the Accounting Agent for recording and affirmation processing
with the depository.
o Settle all depository eligible issues in a totally automated
environment. Transactions requiring physical delivery will be
settled through the Custodian's New York office.
o Assist the Fund in placing cash management trades through the
Custodian, such as commercial paper, CDs and repurchase agreements.
o Provide the Fund's fund accounting agent and investment Adviser with
daily custodian statements reflecting all prior day cash activity on
behalf of each portfolio by 8:30 a.m. eastern time. Complete
descriptions of any posting, inclusive of Sedol/CUSIP numbers,
interest/dividend payment date, capital stock details, expense
authorizations, beginning/ending cash balances, etc., will be
provided by the Custodian's reports or system.
o Provide monthly activity statements combining both cash changes and
security trades, and a full portfolio listing.
o Communicate to the Fund and the Fund's fund accounting agent on any
corporate actions, capital changes and interest rate changes
supported by appropriate supplemental reports received from the
Custodian. Follow-up will be made with the Custodian to ensure all
necessary actions and/or paperwork is completed.
o Work with fund accounting and the Custodian Bank on monthly asset
reconciliation's.
o Coordinate and resolve unsettled dividends, interest, and paydowns
and capital changes. Assist in resolution of failed transactions and
any settlement problems.
o Provide a comprehensive program that audits transactions, monitors
and evaluates the Custodian's service and recommends changes that
may improve performance.
o Arrange for Securities Lending, Lines of Credit, and/or Letters of
Credit through the Custodian.
o Monitor Fund cash positions.
o Provide Automated Mortgage-Backed processing through the Custodian.
o Provide the Fund's auditors with trade documentation to help
expedite the fund's audit.
o Investor Services Group shall be entitled to retain any excess
balance credits or fee reductions or other concessions or benefits
earned or generated by or associated with the Fund's custodial
accounts or made available by the institution at which such accounts
are maintained after such benefits are first applied towards banking
service fees charged to the Trust by such institution.
<PAGE>
SCHEDULE C
FEE SCHEDULE
(All fees will be for a term of five (5) years from effective date, discount
fees specified below will be offered for the first two years with full fees
effective for year 3)
I. Fees related to Portfolio Valuation and Mutual Fund Accounting
A. Annual Fee Schedule Per Domestic Portfolio: **U.S. Dollar Denominated
Securities only (1/12th payable monthly)
$25,000 Minimum to $ 20 Million of Average Daily Net Assets(1)
.0003 On Next $ 30 Million of Average Daily Net Assets(1)
.0002 On Next $ 50 Million of Average Daily Net Assets(1)
.0001 Over $100 Million of Average Daily Net Assets(1)
Each additional class is $12,000 minimum per year.
(1) For multiple class Portfolios, fees are based on Combined Classes'
Average Daily Net Assets.
(2) Should a Portfolio hold any non-U.S.D. securities, Section "B" below
will apply in lieu of Section A.
(3) Should a Portfolio hold more than 5% of its assets in complex domestic
securities ( defined as Short Sales, Pay-in-Kind and Step Bonds,
Strips, Zero Coupon, Swaps, Floors ,ARMS, Dollar Rolls, Collars,
Index-Linked Securities, Interest Only or Principal Only Bonds),
Section "B" below will apply in lieu of Section A.
Should a portfolio require the use of multiple Custodians with
separate statements and accounts, resulting in additional
reconciliation's and money movements, Section "B" below will apply in
lieu of Section A.
B. Annual Fee Schedule per Complex Domestic Portfolio: **(1/12th payable
monthly)
$30,000 Minimum to $ 20 Million of Average Daily Net Assets (1)
.0003 On Next $ 30 Million of Average Daily Net Assets (1)
.0002 On Next $ 50 Million of Average Daily Net Assets (1)
.0001 Over $100 Million of Average Daily Net Assets (1)
Each additional class is $7,500 minimum per year.
(1) For multiple class portfolios, fees are based on Combined Classes'
Average Daily Net Assets.
(2) Should a portfolio hold more than 10% of its assets in non-U.S.D.
currency, futures and or securities, Section "C" below will apply in
lieu of Section A or B.
(3) Should a Portfolio hold more than 80% of its assets in complex
domestic securities ( defined as Short Sales, Pay-in-Kind and Step
Bonds, Strips, Zero Coupon, Swaps, Floors ,ARMS, Dollar Rolls,
Collars, Index-Linked Securities, Interest Only or Principal Only
Bonds), Section "C" below will apply in lieu of Section A or B.
C. Annual Fee Schedule Per Global Portfolio: (1/12th payable monthly)
$40,000 Minimum to $ 20 Million of Average Daily Net Assets (1)
.0003 On Next $ 30 Million of Average Daily Net Assets (1)
.0002 On Next $ 50 Million of Average Daily Net Assets (1)
.0001 Over $100 Million of Average Daily Net Assets (1)
Each additional class is $7,500 minimum per year.
(1) For multiple class portfolios, fees are based on Combined Classes'
Average Daily Net Assets.
D. Pricing Services Quotation Fee
Specific costs will be identified based upon options selected by the
Trust and will be billed monthly.
<TABLE>
<CAPTION>
----------------- ---------------- ----------------
MULLER DATA INTERACTIVE J.J. KENNY
SECURITY TYPES CORP.* DATA CORP.* CO., INC.*
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Government Bonds $ .50 $ .50 $ .25 (a)
----------------------------------------------------------------------------------------------------
Mortgage-Backed (evaluated, seasoned, closing) .50 .50 .25 (a)
----------------------------------------------------------------------------------------------------
Corporate Bonds (short and long term) .50 .50 .25 (a)
----------------------------------------------------------------------------------------------------
U.S. Municipal Bonds (short and long term) .55 .80 .50 (b)
----------------------------------------------------------------------------------------------------
CMO's/ARM's/ABS 1.00 .80 1.00 (a)
----------------------------------------------------------------------------------------------------
Convertible Bonds .50 .50 1.00 (a)
----------------------------------------------------------------------------------------------------
High Yield Bonds .50 .50 1.00 (a)
----------------------------------------------------------------------------------------------------
Mortgage-Backed Factors (per Issue per Month) 1.00 N/A N/A
----------------------------------------------------------------------------------------------------
U.S. Equities .15 .15 N/A
----------------------------------------------------------------------------------------------------
U.S. Options .15 .15 N/A
----------------------------------------------------------------------------------------------------
Domestic Dividends & Capital Changes
(per Issue per Month) N/A 3.50 N/A
----------------------------------------------------------------------------------------------------
Foreign Securities .50 .50 N/A
----------------------------------------------------------------------------------------------------
Foreign Securities Dividends & Capital Changes
(per Issue per Month) 2.00 4.00 N/A
----------------------------------------------------------------------------------------------------
Set-up Fees (one-time) N/A N/A (e) .25 (c)
----------------------------------------------------------------------------------------------------
All Added Items N/A N/A .25 (c)
----------------------------------------------------------------------------------------------------
* Based on current Vendor costs, subject to change. Costs are quoted based on individual security
CUSIP/identifiers and are per issue per day except as noted.
(a) $35.00 per day minimum
(b) $25.00 per day minimum
(c) $ 1.00, if no CUSIP
(d) Interactive Data also charges monthly transmission costs and disk storage charges.
</TABLE>
1) Futures and Currency Forward Contracts 2.00 per Issue per Day
2) Dow Jones Markets (formerly Telerate Systems, Inc.)*
(if applicable)
*Based on current vendor costs, subject to change.
Specific costs will be identified based upon options selected by
the Trust and will be billed monthly.
3) Reuters, Inc.*
*Based on current vendor costs, subject to change.
Specific costs will be identified based upon options selected by
the Trust and will be billed monthly.
4) Municipal Market Data* (if applicable)
*Based on current vendor costs, subject to change.
Specific costs will be identified based upon options selected by
the Trust and will be billed monthly.
E. SEC Yield Calculation - For Domestic Funds Only: (if applicable)
Provide up to 12 reports per year to reflect the yield calculations
for non-money market Funds required by the SEC, $1,000 per year per
Fund. For multiple class Funds, $1,000 per year per class. Daily SEC
yield reporting is available at $3,000 per year per Fund (US dollar
denominated securities only).
F. Additional Services
To the extent the Funds commence using investment techniques such as
security lending, Swaps, Leveraging, Short Sales, Derivatives,
Previous Metals or Foreign Currency Futures and Options additional
fees may apply. Activities of a non-recurring nature such as
shareholder in-kinds, fund consolidations, mergers or reorganizations
will be subject to negotiation. Any additional/enhanced services,
programming requests or reports will be quoted upon request.
II Fees Related to Fund Administration
.0015 on the first $ 50 million of average Net Assets
.0010 on the next $ 50 million of average Net Assets
.0005 over $ 100 million of average Net Assets
Minimum of $55,000 per year for the first portfolio.
$12,000 for each additional domestic portfolio or class.
III. Fees related to Shareholder Servicing
A. Transfer Agent and Shareholder Services:
$20.00 per account per year per portfolio
Minimum monthly fee - $2,000 per portfolio Each additional class
minimum monthly fee is $1,250.
IV. Fees related to Custody Administration
A. The Bank of New York
1. Domestic Securities and ADRs, Per Portfolio: (1/12th payable monthly)
U.S. Dollar Denominated Securities only
.000200 On First $50 Million of Combined Average Daily Net Assets
.000150 On Next $150 Million of Combined Average Daily Net Assets
.000125 Over $200 Million of Combined Average Daily Net Assets
Minimum monthly fee is $500 per portfolio
2. Custody Domestic Securities Transactions Charge: (billed monthly)
Book Entry DTC, Federal Book Entry, GMNA PTC $12.00
Options/Futures $20.00
Physical Securities, RIC's, GNMA's $20.00
P & I Paydowns per pool $7.00
RIC's $24.50
Check Request $6.00
Wires $7.00
Savings Account $3.00
Eurodollar C/D's $45.00
Euro T/D's $15.00
A transaction includes buys, sells, maturities or free security
movements.
3. Custody of Foreign Securities per Global Portfolio
(Bank of New York Custody Schedule)
Countries *Safekeeping Charges Transaction Fee
(BASIS POINTS) (USD)
-------------------------------
Argentina 22 75
-----------------------------------------------------------------
Australia 5 65
-----------------------------------------------------------------
Austria 6 90
-----------------------------------------------------------------
Bangladesh 49 180
-----------------------------------------------------------------
Belgium (reg bds) 3.5 80
-----------------------------------------------------------------
Belgium (equities and Cpn bds) 6 80
-----------------------------------------------------------------
Brazil 34 40
-----------------------------------------------------------------
Canada 3 20
-----------------------------------------------------------------
Chile 34 65
-----------------------------------------------------------------
China 24 20
-----------------------------------------------------------------
Colombia 54 165
-----------------------------------------------------------------
Czech Republic 27 65
-----------------------------------------------------------------
Denmark 4 110
-----------------------------------------------------------------
Euromarket (Cedel/Euroclear) 4 20
-----------------------------------------------------------------
Finland 16 75
-----------------------------------------------------------------
France 5 75
-----------------------------------------------------------------
Germany 3 40
-----------------------------------------------------------------
Greece 34 150
-----------------------------------------------------------------
Hong Kong 10 70
-----------------------------------------------------------------
Hungary 69 205
-----------------------------------------------------------------
India 54 180**
-----------------------------------------------------------------
Indonesia 15 105
-----------------------------------------------------------------
Ireland 4.5 55
-----------------------------------------------------------------
Israel 79 60
-----------------------------------------------------------------
Italy 5 95
-----------------------------------------------------------------
Japan (bonds) 5 15
-----------------------------------------------------------------
Japan (equities) 4 15
-----------------------------------------------------------------
Luxembourg 9.50 85
-----------------------------------------------------------------
Malaysia 11 95
-----------------------------------------------------------------
Mexico 15 30
-----------------------------------------------------------------
Morocco 39 115
-----------------------------------------------------------------
Netherlands 8 17
-----------------------------------------------------------------
New Zealand 4.5 90
-----------------------------------------------------------------
Norway 4 90
-----------------------------------------------------------------
Pakistan 44 170
-----------------------------------------------------------------
Peru 79 195
-----------------------------------------------------------------
Philippines 15 145
-----------------------------------------------------------------
Poland 59 155
-----------------------------------------------------------------
Portugal 34 145
-----------------------------------------------------------------
Russia 31 170
-----------------------------------------------------------------
Singapore 7 45
-----------------------------------------------------------------
South Africa 3 40
-----------------------------------------------------------------
South Korea 16 30
-----------------------------------------------------------------
Spain 6 55
-----------------------------------------------------------------
Sri Lanka 21 75
-----------------------------------------------------------------
Sweden 4 65
-----------------------------------------------------------------
Switzerland 4 105
-----------------------------------------------------------------
Taiwan 20 105
-----------------------------------------------------------------
Thailand 6 50
-----------------------------------------------------------------
Turkey 34 105
-----------------------------------------------------------------
United Kingdom 4 40
-----------------------------------------------------------------
United Kingdom (gilts) 4 55
-----------------------------------------------------------------
Uruguay (Equities) 64 90
-----------------------------------------------------------------
Uruguay (bonds) 44 90
-----------------------------------------------------------------
Venezuela 54 180
-----------------------------------------------------------------
CHART NOTES:
* Fee expressed in basis points per annum is calculated based
upon month-end market value.
** Transaction charge is per 10,000 shares or part thereof.
A transaction includes buys, sells, maturities or Free Security
movements.
GLOBAL NETWORK USAGE FEE:
$350 per portfolio per month.
If trades in foreign assets denominated in foreign currencies held in
the local country, the above fee will apply. The $350 fee is waived
on Euroclear/Cedel transactions.
Minimum charges imposed by Agent Banks/Local Administrators
Chile - USD 5,000 per annum.
Columbia - USD 600 per month.
Peru - USD 6,000 per annum per account.
Brazil - USD 15 basis points for annual administrative charge.
Taiwan - USD 3,000 account opening charge.
C. When Issued, Securities Lending, Index Futures, etc:
Should any investment vehicle require a separate segregated custody
account, a fee of $250 per account per month will apply.
D. Custody Miscellaneous Fees
Administrative fees incurred in certain local markets will be passed onto
the customer with a detailed description of the fees. Fees include income
collection, corporate action handling, overdraft charges, funds transfer,
special local taxes, stamp duties, registration fees, messenger and courier
services and other out-of-pocket expenses.
V. Lost Shareholder Search/Reporting: $2.75 per account search*
* The per account search fee shall be waived until June 2000
so long as the Fund retains Keane Tracers, Inc. ("KTI") to
provide the Fund with KTI's "In-Depth Research Program"
services.
VI Print/Mail Fees.
(a) Standard Pricing:
Implementation Fee $5,000
Testing Application or Data Requirements: $3.00/fax
Work Order: $15.00 per workorder
Daily Work (Confirms):
Hand: $71/K with $20.00 minimum (includes BRE or CRE)
$0.07/each additional insert
Machine: $42/K with $15.00 minimum (includes BRE or CRE)
$0.01/each additional insert
Daily Checks*:
Hand: $91/K with $30.00 minimum daily (includes 1 insert)
$0.08/each additional insert
Machine: $52/K with $20.00 minimum (includes 1 insert)
$0.01/each additional insert
* There is a $3.00 charge for each 3606 Form sent.
Statements:
Hand: $78/K with $20.00 minimum (includes BRE or CRE)
$0.08/each additional insert
$125/K for intelligent inserting
Machine: $52/K with $20.00 minimum (includes BRE or CRE)
$0.01 each additional insert
$58/K for intelligent inserting
Periodic Checks:
Hand: $91/K with $30.00 minimum (includes 1 insert)
$0.08/each additional insert
Machine: $52/K with $30.00 minimum (includes 1 insert)
$0.01/each additional insert
12B1/Dealer Commission Checks/Statements: $0.78/each envelope with
$30.00 minimum
Spac Reports/Group Statements: $78/K with $20.00 minimum
------------------------------
Listbills: $0.78 per envelope with $20.00 minimum
Printing Charges: (price ranges dependent on volumes)
$0.08/per confirm/statement/page
$0.10/per check
Folding (Machine): $18/K
Folding (Hand): $.12 each
Presort Charge: postage rate
$0.035 per piece
Fast Forward: $0.15 per piece
Courier Charge: $15.00 for each on call courier trip/or
actual cost for on demand
---------------
Overnight Charge: $3.50 per package service charge plus Federal
Express/Airborne charge
Inventory Storage: $20.00 for each inventory location as of
the 15th of the month
Inventory Receipt: $20.00 for each SKU / Shipment
Hourly work; special projects, opening envelopes, etc...: $24.00
per hour
Special Pulls: $2.50 per account pull
Boxes/Envelopes: Shipping boxes $0.85 each
Oversized Envelopes $0.45 each
Forms Development/Programming Fee: $100/hr
Systems Testing: $85/hr
Cutting Charges: $10.00/K
(b) Special Mailings:
Special mailing pricing is based on appropriate notification
(standard of 30-day notification) and scheduling for special
mailings. Scheduling requirements include having collateral
arrive at agreed upon times in advance of deadlines. Mailings
which arise with shorter time frames and turns will be billed
at a premium based on turn around requirements.
Work Order: $30.00 per Workorder
Daily Work (Confirms):
Hand: $135.00 to create an admark tape
$10.00/K to zip + 4 data enhance/$125.00 minimum
$80.00/hr for any data manipulation
$10.00/K combo charge
Admark & Machine Insert
#10, #11, 6x9: $62/K to admark envelope and machine insert
1 piece/$125.00 min
$2.50/K for each additional insert
$38/K to admark only with $75.00 minimum
$25.00/K hand sort
9x12: $135/K to admark envelope and machine insert
1 piece/$125.00 min
$5.00/K for each additional insert
$38/K to admark only/$75.00 minimum
$0.08 for each hand insert
Admark & Hand Insert:
#10, #11, 6x9: $0.08 for each hand insert
$25.00/K hand sort
9x12: $0.09 for each hand insert
$35.00/K hand sort
Pressure/Sensitive Labels:
$0.32 each to create, affix and hand insert 1 piece/$75.00 minimum
$0.08 for each hand insert
$0.10 to affix labels only
$0.10 to create labels only
Legal Drop: $150.00 / compliant legal drop per job and processing fees
Create Mailing List: $0.40 per entry with $75.00 minimum
Presort Fee: $0.035 per piece
VII Miscellaneous Charges. The Fund shall be charged for the following
products and services as applicable:
o Ad hoc reports
o Ad hoc SQL time
o COLD Storage
o Digital Recording
o Banking Services, including incoming and outgoing wire charges
o Microfiche/microfilm production
o Magnetic media tapes and freight
o Manual Pricing
o Materials for Rule 15c-3 Presentations
o Pre-Printed Stock, including business forms, certificates,
envelopes, checks and stationary
VIII Fee Adjustments. After the one year anniversary of the effective date of
this Agreement, Investor Services Group may adjust the fees described in the
above sections once per calendar year, upon thirty (30) days prior written
notice in an amount not to exceed the cumulative percentage increase in the
Consumer Price Index for All Urban Consumers (CPI-U) U.S. City Average, All
items (unadjusted) - (1982-84=100), published by the U.S. Department of Labor
since the last such adjustment in the Client's monthly fees (or the Effective
Date absent a prior such adjustment).
IX Programming Costs. The following programming rates are subject to an annual
5% increase after the one-year anniversary of the effective date of this
Agreement.
(a) Dedicated Team: Programmer: $100,000 per annum
BSA: $ 85,000 per annum
Tester: $ 65,000 per annum
(b) System Enhancements (Non Dedicated Team): $150.00 per/hr per
programmer
X IMPRESSNet Fees Fees are charged across entire Fund Complex
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Number of Accounts Less than 20,000 20,001-50,000 50,001-100,000 100,001-500,000 500,001-1 million More than $1 Million
- --------------------------------------------------------------------------------------------------------------------------------
Set-Up Fee $15,000 $20,000 $25,000 $30,000 $40,000 $50,000
- --------------------------------------------------------------------------------------------------------------------------------
Annual fee $10,500 $14,000 $17,500 $21,000 $28,000 $35,000
- --------------------------------------------------------------------------------------------------------------------------------
Inquiry Usage Fee $.10 $.10 $.10 $.10 $.10 $.10
- --------------------------------------------------------------------------------------------------------------------------------
Minimum Inquiry $1,200.00 $1,600.00 $2,000.00 $2,600.00 $3,200.00 $4,000.00
Fee/Month
- --------------------------------------------------------------------------------------------------------------------------------
Transaction Fee $.50 $.50 $.50 $.50 $.50 $.50
- --------------------------------------------------------------------------------------------------------------------------------
Minimum $120.00 $160.00 $200.00 $260.00 $320.00 $400
Transaction
Fee/Month
- --------------------------------------------------------------------------------------------------------------------------------
PIN Registration $2.50 $2.50 $2.50 $2.50 $2.50 $2.50
Fee
- --------------------------------------------------------------------------------------------------------------------------------
Billable Custom $150 per hour $150 per hour $150 per hour $150 per hour $150 per hour $150 per hour
Development
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
Inquiry Cumulative Less than 100,0001-200,000 200,001-300,000 More than
Volume Discount 100,000 300,000
- --------------------------------------------------------------------------------------------------------------------------------
$.10 $.08 $.05 $.03
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
XI Voice Response Unit Charges Fees are charged across entire Fund Complex
$10,000.00 set up fee $1,000.00 per month maintenance fee $0.23 per
minute (Time in VRU) $0.10 per call
<PAGE>
SCHEDULE D
OUT-OF-POCKET EXPENSES
The Fund shall reimburse Investor Services Group monthly for applicable
out-of-pocket expenses, including, but not limited to the following items:
o Postage - direct pass through to the Fund
o Telephone and telecommunication costs, including all lease,
maintenance and line costs
o Proxy solicitations, mailings and tabulations
o Shipping, Certified and Overnight mail and insurance
o Terminals, communication lines, printers and other equipment and any
expenses incurred in connection with such terminals and lines
o Duplicating services
o Distribution and Redemption Check Issuance
o Courier services
o Federal Reserve charges for check clearance
o Overtime, as approved by the Fund
o Temporary staff, as approved by the Fund
o Travel and entertainment, as approved by the Fund
o Record retention, retrieval and destruction costs, including, but
not limited to exit fees charged by third party record keeping
vendors
o Third party audit reviews
o Insurance
o Pricing services (or services used to determine Fund NAV) o Vendor
set-up charges for Blue Sky and other services
o Blue Sky filing or registration fees
o EDGAR filing fees
o Vendor pricing comparison
o Such other expenses as are agreed to by Investor Services Group and
the Fund
The Fund agrees that postage and mailing expenses will be paid on the
day of or prior to mailing as agreed with Investor Services Group. In addition,
the Fund will promptly reimburse Investor Services Group for any other
unscheduled expenses incurred by Investor Services Group whenever the Fund and
Investor Services Group mutually agree that such expenses are not otherwise
properly borne by Investor Services Group as part of its duties and obligations
under the Agreement.
<PAGE>
SCHEDULE E
FUND DOCUMENTS
o Certified copy of the Articles of Incorporation of the Fund, as amended
o Certified copy of the By-laws of the Fund, as amended
o Copy of the resolution of the Board of Directors authorizing the execution
and delivery of this Agreement
o Copies of all agreements between the Fund and its service providers
o Specimens of the certificates for Shares of the Fund, if applicable, in the
form approved by the Board of Directors of the Fund, with a certificate of
the Secretary of the Fund as to such approval
o All account application forms and other documents relating to Shareholder
accounts or to any plan, program or service offered by the Fund
o Certified list of Shareholders of the Fund with the name, address and
taxpayer identification number of each Shareholder, and the number of Shares
of the Fund held by each, certificate numbers and denominations (if any
certificates have been issued), lists of any accounts against which stop
transfer orders have been placed, together with the reasons therefore, and
the number of Shares redeemed by the Fund
o All notices issued by the Fund with respect to the Shares in accordance with
and pursuant to the Articles of Incorporation or By-laws of the Fund or as
required by law and shall perform such other specific duties as are set
forth in the Articles of Incorporation including the giving of notice of any
special or annual meetings of shareholders and any other notices required
thereby.
o A listing of all jurisdictions in which each Portfolio is registered and
lawfully available for sale as of the date of this Agreement and all
information relative to the monitoring of sales and registrations of Fund
shares in such jurisdictions
o Each Fund's most recent post-effective amendment to its Registration
Statement
o Each Fund's most recent prospectus and statement of additional information,
if applicable, and all amendments and supplements thereto
<PAGE>
EXHIBIT 23(i)
(412) 355-2600
[email protected]
October 15, 1999
Investors Capital Corporation
230 Broadway East, Suite 203
Lynnfield, MA 01940-2320
Re: Investors Capital Funds
Ladies and Gentlemen:
We have acted as counsel to Investors Capital Funds, a business trust
formed under the Delaware Business Trust Act (the "Company"), in connection with
the issuance and sale by the Company of an indefinite number of shares of the
Company's Class A common shares of beneficial interest, par value $.001 per
share (the "Class A Shares") and Class C common shares of beneficial interest,
par value $.001 per share (the "Class C Shares," and together with the Class A
Shares, the "Shares") of the following Series: Investors Capital Internet Fund
and Investors Capital Twenty Fund.
This opinion is being furnished in accordance with the requirements of
Item 23(i) of Form N-1A.
In connection with this opinion, we have examined originals or copies
(including facsimile transmission), certified or otherwise identified to our
satisfaction, of (i) the Registration Statement on Form N-1A (File Nos.
333-83951 and 811-09497), as filed with the Securities and Exchange Commission
(the "Commission"), on July 28, 1999 under the Securities Act of 1933, as
amended (the "1933 Act"), and the Investment Company Act of 1940, as amended,
and Pre-Effective Amendments Nos. 1 and 2 thereto, as filed with the Commission
on September 15, 1999 and October 15, 1999, respectively, (such Registration
Statement, as so amended, being hereinafter referred to as the "Registration
Statement"); (ii) the Trust Instrument of the Company, as currently in effect;
(iii) the By-Laws of the Company, as currently in effect; (iv) the Distribution
Agreement between the Company and Investors Capital Corporation as currently in
effect (the "Distribution Agreement"); and (v) certain resolutions of the Board
of Trustees of the Company relating to the issuance and sale of the Shares and
related matters. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company and
such agreements, certificates of public officials, certificates of officers of
the other representatives of the Company and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed, facsimile or photostatic
copies and the authenticity of the originals of such latter documents. In making
our examination of documents executed or to be executed by parties other than
the Company, we have assumed: (i) that such parties had or will have the power,
corporate or other, to enter into and perform all obligations thereunder; (ii)
the due authorization by all requisite action, corporate or other, to enter into
and perform all obligations thereunder; and (iii) the execution and delivery by
such parties of such documents and the validity and binding effect thereof. As
to any facts material to the opinions expressed herein which we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
issuance and sale of the Shares by the Company thereunder has been validly
authorized and when issued and delivered against payment therefor as provided in
the Trust Instrument and the Registration Statement, such Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. In giving this consent, we do not
thereby admit that we are included in the category of persons whose consent is
required under Section 7 of the 1933 Act or the rules and regulations of the
Commission.
Very truly yours,
DOEPKEN KEEVICAN & WEISS
PROFESSIONAL CORPORATION
<PAGE>
EXHIBIT 23(j)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated October 8, 1999, accompanying the October 8,
1999 financial statements of the Investors Capital Twenty Fund (one of the funds
constituting the Investors Capital Funds) which are incorporated by reference in
Part B of the Pre-Effective Amendment to this Registration Statement and
Prospectus. We consent to the use of the aforementioned report in the
Registration Statement and Prospectus.
BRIGGS, BUNTING & DOUGHERTY, LLP
Philadelphia, Pennsylvania
October 13, 1999
<PAGE>
EXHIBIT 23(l)
October 11, 1999
Investors Capital Funds
230 Broadway East
Suite 203
Lynnfield, MA 01940-2320
RE: Initial Capital Letter of Understanding
Ladies and Gentlemen:
Eastern Point Advisors, Inc. (the "Company") hereby agrees to acquire 10,000
shares of beneficial interest (the "Shares") in the Investors Capital Twenty
Fund at $10.00 per share.
Shares will be issued in a private offering prior to the effectiveness of the
Registration Statement filed by Investors Capital Funds (the "Trust") under the
Securities Act of 1933. The Shares are being purchased pursuant to Section 14 of
the Investment Company Act of 1940 to serve as the seed money for the Trust
prior to the commencement of the public offering of its shares.
In connection with such purchase, the Company represents that the purchase is
being made for investment purposes and not with the present intention of
redeeming or reselling the Shares.
The Company, as evidenced by the signature of its officer, hereby agrees to the
above and consents to the filing of this Investment Letter as an exhibit to the
Form N-1A Registration Statement of the Trust.
Eastern Point Advisors, Inc.
By: /s/ Theodore E. Charles
Name: Theodore E. Charles
Title: President
<PAGE>
EXHIBIT 23(m)
INVESTORS CAPITAL FUNDS
RULE 12B-1 DISTRIBUTION PLAN FOR CLASS A SHARES
The following Distribution Plan (the "Plan") has been adopted pursuant to Rule
12b-1 under the Investment Company Act of 1940, as amended (the "1940 Act"), by
Investors Capital Funds (the "Trust") for the Class A shares of the Investors
Capital Internet Fund and the Investors Capital Twenty Fund (each a "Fund" and
collectively, the "Funds"). The Plan has been approved by a majority of the
Trust's Trustees, including a majority of the Trustees who are not interested
persons of the Trust (as defined in the 1940 Act) and who have no direct or
indirect financial interest in the operation of the Plan or in any agreement
related to the Plan (the "non-interested Trustees"), cast in person at a meeting
called for the purpose of voting on such Plan.
Section 1. ANNUAL FEE.
The Fund shall compensate Investors Capital Corporation, as the Funds' principal
distributor (the "Distributor"), for payment to dealers or others a distribution
fee at the rate of 0.25% (1/4 of 1%) per annum of the average daily net assets
of the Class A shares of the Funds. This fee shall be calculated and accrued
daily and paid monthly or at such other intervals as the Board shall determine.
Section 2. EXPENSES COVERED BY THE PLAN.
The fees payable under the Plan shall be used to compensate the Distributor for
any expenses primarily intended to result in the sale of the Fund's shares,
including, but not limited to: payments the Distributor makes to broker-dealers
or other financial institutions and industry professionals for providing
distribution assistance and administrative support services to the holders of
the Fund's shares, payments made for the preparation, printing and distribution
of advertisements and sales literature, and payments made for printing and
distributing prospectuses and shareholder reports to other than existing
shareholders of the Funds.
All such expenses covered by the Plan shall be deemed incurred whether paid
directly by the Distributor or by a third party to the extent reimbursed
therefor by the Distributor.
Section 3. DISTRIBUTION EXPENSES IN EXCESS OF FEE.
All distribution expenses in excess of the fee rates provided for in this Plan
may be carried forward and resubmitted in a subsequent fiscal year provided that
(i) distribution expenses cannot be carried forward for more than three years
following initial submission; and (ii) the non-interested Trustees determine at
the time of initial submission that the distribution expenses are appropriate to
be reimbursed. Distribution expenses will be paid on a first-in, first-out
basis.
Section 4. WRITTEN REPORTS.
The Advisor shall furnish to the Trustees, for their review, on a quarterly
basis, a written report of the monies paid under the Plan or any related
agreement and the purposes therefor, and shall furnish the Trustees with such
other information as the Trustees may reasonably request in connection with
payments made under the Plan or any related agreement in order to enable the
Trustees to make an informed determination of whether the Plan should be
continued.
Section 5. TERMINATION.
The Plan may be terminated at any time, without penalty, by a vote of a majority
of the non-interested Trustees or by vote of a majority of the outstanding
voting securities of the Fund, and any distribution agreement under the Plan may
be likewise terminated on not more than sixty (60) days' written notice. Once
terminated, no further payments shall be made under the Plan notwithstanding the
existence of any unreimbursed current or carried forward distribution expenses.
Section 6. AMENDMENTS.
The Plan may not be amended to increase materially the amount to be spent for
distribution and servicing of Fund shares without approval by a majority of the
outstanding voting securities of the Fund. All material amendments to the Plan
and any related distribution agreement shall be approved by the Trustees and the
non-interested Trustees cast in person at a meeting called for the purpose of
voting on any such amendment.
Section 7. SELECTION OF INDEPENDENT TRUSTEES.
So long as the Plan is in effect, the selection and nomination of the Trust's
non-interested Trustees shall be committed to the discretion of such
non-interested Trustees.
Section 8. EFFECTIVE DATE OF PLAN.
The Plan shall take effect as of the date hereof and, unless sooner terminated,
shall continue in effect for a period of more than one year from the date of its
execution only so long as such continuance is specifically approved at least
annually by the Trustees, including the non-interested Trustees, cast in person
at a meeting called for the purpose of voting on such continuance.
Section 9. PRESERVATION OF MATERIALS.
The Trust will preserve copies of the Plan, any agreements relating to the Plan
and any report made pursuant to Section 4 above, for a period of not less than
six years (the first two years in an easily accessible place) from the date of
the Plan, agreement or report.
Section 10. MEANINGS OF CERTAIN TERMS.
As used in the Plan, the terms "interested person" and "majority of the
outstanding voting securities" will be deemed to have the same meaning that
those terms have under the 1940 Act and the rules and regulations under the 1940
Act, subject to any exemption that may be granted to the Trust under the 1940
Act by the Securities and Exchange Commission.
Dated: September ___, 1999
<PAGE>
INVESTORS CAPITAL FUNDS
RULE 12B-1 DISTRIBUTION PLAN FOR CLASS C SHARES
The following Distribution Plan (the "Plan") has been adopted pursuant to Rule
12b-1 under the Investment Company Act of 1940, as amended (the "1940 Act"), by
Investors Capital Funds (the "Trust") for the Class A shares of the Investors
Capital Internet Fund and the Investors Capital Twenty Fund (the "Funds"). The
Plan has been approved by a majority of the Trust's Trustees, including a
majority of the Trustees who are not interested persons of the Trust (as defined
in the 1940 Act) and who have no direct or indirect financial interest in the
operation of the Plan or in any agreement related to the Plan (the
"non-interested Trustees"), cast in person at a meeting called for the purpose
of voting on such Plan.
Section 1. ANNUAL FEE.
(a) The Fund shall compensate Investors Capital Corporation, as the Fund's
principal distributor (the "Distributor"), for payment to dealers or others a
distribution fee at the rate of 0.75% (3/4 of 1%) per annum of the average daily
net assets of the Class C shares of the Fund.
(b) In addition to the amounts described in (a) above, the Fund shall compensate
the Distributor a servicing fee of 0.25% (1/4 of 1%) per annum of the average
daily net assets of the Class C shares of the Fund.
Each fee shall be calculated and accrued daily and paid monthly or at such other
intervals as the Board shall determine.
Section 2. EXPENSES COVERED BY THE PLAN.
The 0.75% distribution fee payable under the Plan shall be used to compensate
the Distributor for any expenses primarily intended to result in the sale of the
Fund's shares, including, but not limited to: payments the Distributor makes to
broker-dealers or other financial institutions and industry professionals for
providing distribution assistance and administrative support services to the
holders of the Fund's shares, payments made for the preparation, printing and
distribution of advertisements and sales literature, and payments made for
printing and distributing prospectuses and shareholder reports to other than
existing shareholders of the Funds. The 0.25% servicing fee shall be used to
pay, among other things, for assisting in establishing and maintaining customer
accounts and records; assisting with purchase and redemption requests; arranging
for bank wires; monitoring dividend payments from the Trust on behalf of
customers, furnishing personal services and maintaining shareholder accounts,
facilitating certain shareholder communications from the Trust to customers;
receiving and answering correspondence; and aiding in maintaining the investment
of customers in the Class C shares of each Fund.
All such expenses covered by the Plan shall be deemed incurred whether paid
directly by the Distributor or by a third party to the extent reimbursed
therefor by the Distributor.
Section 3. DISTRIBUTION EXPENSES IN EXCESS OF FEE.
All distribution expenses in excess of the fee rates provided for in this Plan
may be carried forward and resubmitted in a subsequent fiscal year provided that
(i) distribution expenses cannot be carried forward for more than three years
following initial submission; and (ii) the non-interested Trustees determine at
the time of initial submission that the distribution expenses are appropriate to
be reimbursed. Distribution expenses will be paid on a first-in, first-out
basis.
Section 4. WRITTEN REPORTS.
The Advisor shall furnish to the Trustees, for their review, on a quarterly
basis, a written report of the monies paid under the Plan or any related
agreement and the purposes therefor, and shall furnish the Trustees with such
other information as the Trustees may reasonably request in connection with
payments made under the Plan or any related agreement in order to enable the
Trustees to make an informed determination of whether the Plan should be
continued.
Section 5. TERMINATION.
The Plan may be terminated at any time, without penalty, by a vote of a majority
of the non-interested Trustees or by vote of a majority of the outstanding
voting securities of the Fund, and any distribution agreement under the Plan may
be likewise terminated on not more than sixty (60) days' written notice. Once
terminated, no further payments shall be made under the Plan notwithstanding the
existence of any unreimbursed current or carried forward distribution expenses.
Section 6. AMENDMENTS.
The Plan may not be amended to increase materially the amount to be spent for
distribution and servicing of Fund shares without approval by a majority of the
outstanding voting securities of the Fund. All material amendments to the Plan
and any related distribution agreement shall be approved by the Trustees and the
non-interested Trustees cast in person at a meeting called for the purpose of
voting on any such amendment.
Section 7. SELECTION OF INDEPENDENT TRUSTEES.
So long as the Plan is in effect, the selection and nomination of the Trust's
non-interested Trustees shall be committed to the discretion of such
non-interested Trustees.
Section 8. EFFECTIVE DATE OF PLAN.
The Plan shall take effect as of the date hereof and, unless sooner terminated,
shall continue in effect for a period of more than one year from the date of its
execution only so long as such continuance is specifically approved at least
annually by the Trustees, including the non-interested Trustees, cast in person
at a meeting called for the purpose of voting on such continuance.
Section 9. PRESERVATION OF MATERIALS.
The Trust will preserve copies of the Plan, any agreements relating to the Plan
and any report made pursuant to Section 4 above, for a period of not less than
six years (the first two years in an easily accessible place) from the date of
the Plan, agreement or report.
Section 10. MEANINGS OF CERTAIN TERMS.
As used in the Plan, the terms "interested person" and "majority of the
outstanding voting securities" will be deemed to have the same meaning that
those terms have under the 1940 Act and the rules and regulations under the 1940
Act, subject to any exemption that may be granted to the Trust under the 1940
Act by the Securities and Exchange Commission.
Dated: September ___, 1999
<PAGE>
EXHIBIT 23(o)
INVESTORS CAPITAL FUNDS
INVESTORS CAPITAL INTERNET FUND
INVESTORS CAPITAL TWENTY FUND
MULTIPLE CLASS PLAN PURSUANT TO RULE 18F-3
1. The Plan. This Multiple Class Plan (the "Plan") is the written plan of the
Investors Capital Internet Fund and Investors Capital Twenty Fund (each a
"Fund" and collectively, the "Funds") contemplated by Rule 18f-3 under the
Investment Company Act of 1940, as amended (the "1940 Act"). This Plan sets
forth the separate distribution arrangements and expense allocations of the
Class A and Class C shares of each Fund. The Plan has been adopted by a
majority of the Board of Trustees, including a majority of the independent
Trustees, of Investors Capital Funds (the "Trust"). The Trustees have
determined that the Plan is in the best interests of each class and the
Funds as a whole.
2. Attributes of Classes. Each share of each Fund will represent an equal pro
rata interest in the Fund, regardless of class, and will have identical
voting, dividend, liquidation and other rights, except for:
a. the amount and type of fees permitted by the Funds' different Rule
12b-1 Plans;
b. voting rights on matters relating solely to that class of shares or its
Rule 12b-1 Plan;
c. any expenses which the Board of Trustees determines should be allocated
or charged on a class basis ("Class Expenses"), which are currently
limited to:
(i) expenses of a class under the Rule 12b-1 plan (and any other
costs relating to obtaining shareholder approval of the
adoption or amendment of the Rule 12b-1 plan as to that class),
(ii) transfer agency fees attributable to a specific class,
(iii) printing and postage expenses relating to preparing and
distributing material such as shareholder reports, prospectuses
and proxies to current shareholders,
(iv) SEC registration fees incurred by a class of shares,
(v) expenses of administrative personnel and services required to
support the shareholders of a specific class,
(vi) litigation or other legal expenses relating solely to one class
of shares,
(vii) trustees' fees incurred as a result of issues relating to one
class of shares, and
(viii) other expenses that are subsequently identified and determined
to be properly allocated to one class of shares;
d. the names of the classes;
e. the different exchange privileges of the various classes of shares; and
f. any conversion feature for a class permitted under subsection (e) of
Rule 18f-3.
3. Class A Shares. Class A Shares will be offered subject to a front-end sales
load of up to 5.75% of the public offering price and a Rule 12b-1
distribution fee equal to 0.25% annually of the average daily net asset
value of the Class A shares. The front-end sales load will decline with the
amount invested as follows:
For amounts: Sales load rate:
------------ ----------------
less than $50,000 5.75%
at least $50,000 but less than $100,000 4.75%
at least $100,000 but less than $ 500,000 3.75%
at least $500,000 but less than $1,000,000 2.00%
over $1,000,000 1.00%
Each Fund currently will not assess a sales load for purchases by the
exempt persons described in the Funds' prospectus or statement of
additional information.
4. Class C Shares. Class C shares will be offered without imposition of a
front-end sales load, but will be subject to a Rule 12b-1 distribution fee
equal to 0.75% annually of the average daily net asset value of the Class C
shares and a servicing fee equal to 0.25% annually of the average daily net
asset value of the Class C shares.
5. Rule 12b-1 Fees. The Rule 12b-1 charges associated with the Class A and
Class C shares shall be paid as compensation to Investors Capital
Corporation (the "Distributor"), a registered broker-dealer and
distributor, or others for distribution services provided and expenses
assumed in connection with distribution assistance, including payments to
the Distributor pursuant to the Distribution Agreement among the Trust,
Eastern Point Advisors and the Distributor. The Distributor may reallow a
portion or all of the 12b-1 fees received to broker-dealers or others who
have executed a selling agreement with the Distributor on behalf of the
Class A and Class C Shares of the Trust.
6. Income and Expense Allocation. Expenses of the Trust will be allocated
between the Funds on the basis of the relative net assets of the Funds.
Certain expenses attributable to a Fund, and not to a particular class will
be borne by each class on the basis of the relative aggregate net assets of
the class. Notwithstanding the foregoing, the investment advisor or other
service provider may waive or reimburse the expenses of a specific class or
classes to the extent permitted under Rule 18f-3 under the 1940 Act.
7. Dividends and Distributions. Dividends and other distributions paid by each
class of shares, to the extent that any dividends are paid, will be
calculated in the same manner, at the same time, and on the same day,
except that any distribution fees, service fees and class expenses
allocated to a class will be borne exclusively by that class.
8. Exchanges and Conversions. There shall be no exchange or conversion
features available between the Investors Capital Class A Shares and Class C
shares.
9. Voting. Each class shall vote separately and exclusively with respect to
any matter related to its Rule 12b-1 Plan. Each class of shares shall vote
separately with respect to any matter that relates solely to that class of
shares.
10. General. The Rule 12b-1 Plan relating to the Class A and Class C Shares for
each Fund shall operate in accordance with the Conduct Rules of the
National Association of Securities Dealers, Inc., Article III, Section 26.
11. Conflicts. On an ongoing basis, the Trustees, pursuant to their fiduciary
responsibilities under the 1940 Act, and otherwise, will monitor the Trust
for the existence of any material conflicts between the interests of the
classes of shares. The Trustees, including a majority of the non-interested
Trustees, shall take such action as is reasonably necessary to eliminate
any such conflict that may develop. The investment advisor and the
Distributor shall be responsible for alerting the Trustees to any material
conflicts that may arise.
12. Amendments. Any material amendment to this Plan must be approved by a
majority of the Trustees of the Funds, including a majority of the Trustees
who are not interested persons of the Funds, as defined in the 1940 Act.
Date: September 23, 1999
<PAGE>
EXIBIT 23(p)
POWER-OF-ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes and
appoints Gerald J. Holland, Carolyn F. Mead, Esq., Thomas N. Calabria, Esq. and
David Peters, Esq., and each of them, with full power to act without the other,
as a true and lawful attorney-in-fact and agent, with full and several power of
substitution, to take any appropriate action to execute and file with the U.S.
Securities and Exchange Commission, any amendment to the Registration Statement
of Investors Capital Funds (the "Trust"), to file any request for exemptive
relief from state and federal regulations, to file the prescribed notices in the
various states regarding the sale of shares of the Trust, to perform on behalf
of the Trust any and all such acts as such attorneys-in-fact may deem necessary
or advisable in order to comply with the applicable laws of the United States or
any such state, and in connection therewith to execute and file all requisite
papers and documents including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for service of
process; granting to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act requisite and necessary
to be done in connection therewith, as fully as each might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney on the
23rd day of September, 1999.
/s/ Theodore E. Charles
Theodore E. Charles
President and Trustee
<PAGE>
POWER-OF-ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes and
appoints Gerald J. Holland, Carolyn F. Mead, Esq., Thomas N. Calabria, Esq. and
David Peters, Esq., and each of them, with full power to act without the other,
as a true and lawful attorney-in-fact and agent, with full and several power of
substitution, to take any appropriate action to execute and file with the U.S.
Securities and Exchange Commission, any amendment to the Registration Statement
of Investors Capital Funds (the "Trust"), to file any request for exemptive
relief from state and federal regulations, to file the prescribed notices in the
various states regarding the sale of shares of the Trust, to perform on behalf
of the Trust any and all such acts as such attorneys-in-fact may deem necessary
or advisable in order to comply with the applicable laws of the United States or
any such state, and in connection therewith to execute and file all requisite
papers and documents including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for service of
process; granting to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act requisite and necessary
to be done in connection therewith, as fully as each might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney on the
23rd day of September, 1999.
/s/ Timothy B. Murphy
Timothy B. Murphy
Treasurer and Trustee
<PAGE>
POWER-OF-ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes and
appoints Gerald J. Holland, Carolyn F. Mead, Esq., Thomas N. Calabria, Esq. and
David Peters, Esq., and each of them, with full power to act without the other,
as a true and lawful attorney-in-fact and agent, with full and several power of
substitution, to take any appropriate action to execute and file with the U.S.
Securities and Exchange Commission, any amendment to the Registration Statement
of Investors Capital Funds (the "Trust"), to file any request for exemptive
relief from state and federal regulations, to file the prescribed notices in the
various states regarding the sale of shares of the Trust, to perform on behalf
of the Trust any and all such acts as such attorneys-in-fact may deem necessary
or advisable in order to comply with the applicable laws of the United States or
any such state, and in connection therewith to execute and file all requisite
papers and documents including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for service of
process; granting to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act requisite and necessary
to be done in connection therewith, as fully as each might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney on the
23rd day of September, 1999.
/s/ Robert T. Martin
Robert T. Martin
Trustee
<PAGE>
POWER-OF-ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes and
appoints Gerald J. Holland, Carolyn F. Mead, Esq., Thomas N. Calabria, Esq. and
David Peters, Esq., and each of them, with full power to act without the other,
as a true and lawful attorney-in-fact and agent, with full and several power of
substitution, to take any appropriate action to execute and file with the U.S.
Securities and Exchange Commission, any amendment to the Registration Statement
of Investors Capital Funds (the "Trust"), to file any request for exemptive
relief from state and federal regulations, to file the prescribed notices in the
various states regarding the sale of shares of the Trust, to perform on behalf
of the Trust any and all such acts as such attorneys-in-fact may deem necessary
or advisable in order to comply with the applicable laws of the United States or
any such state, and in connection therewith to execute and file all requisite
papers and documents including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for service of
process; granting to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act requisite and necessary
to be done in connection therewith, as fully as each might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney on the
23rd day of September, 1999.
/s/ John S. Rando
John. S. Rando
Trustee
<PAGE>
POWER-OF-ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes and
appoints Gerald J. Holland, Carolyn F. Mead, Esq., Thomas N. Calabria, Esq. and
David Peters, Esq., and each of them, with full power to act without the other,
as a true and lawful attorney-in-fact and agent, with full and several power of
substitution, to take any appropriate action to execute and file with the U.S.
Securities and Exchange Commission, any amendment to the Registration Statement
of Investors Capital Funds (the "Trust"), to file any request for exemptive
relief from state and federal regulations, to file the prescribed notices in the
various states regarding the sale of shares of the Trust, to perform on behalf
of the Trust any and all such acts as such attorneys-in-fact may deem necessary
or advisable in order to comply with the applicable laws of the United States or
any such state, and in connection therewith to execute and file all requisite
papers and documents including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for service of
process; granting to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act requisite and necessary
to be done in connection therewith, as fully as each might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney on the
23rd day of September, 1999.
/s/ Arthur E. Stickney
Arthur E. Stickney
Trustee
<PAGE>
POWER-OF-ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes and
appoints Gerald J. Holland, Carolyn F. Mead, Esq., Thomas N. Calabria, Esq. and
David Peters, Esq., and each of them, with full power to act without the other,
as a true and lawful attorney-in-fact and agent, with full and several power of
substitution, to take any appropriate action to execute and file with the U.S.
Securities and Exchange Commission, any amendment to the Registration Statement
of Investors Capital Funds (the "Trust"), to file any request for exemptive
relief from state and federal regulations, to file the prescribed notices in the
various states regarding the sale of shares of the Trust, to perform on behalf
of the Trust any and all such acts as such attorneys-in-fact may deem necessary
or advisable in order to comply with the applicable laws of the United States or
any such state, and in connection therewith to execute and file all requisite
papers and documents including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for service of
process; granting to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act requisite and necessary
to be done in connection therewith, as fully as each might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney on the
23rd day of September, 1999.
- -------------------------
<PAGE>
POWER-OF-ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned constitutes and
appoints Gerald J. Holland, Carolyn F. Mead, Esq., Thomas N. Calabria, Esq. and
David Peters, Esq., and each of them, with full power to act without the other,
as a true and lawful attorney-in-fact and agent, with full and several power of
substitution, to take any appropriate action to execute and file with the U.S.
Securities and Exchange Commission, any amendment to the Registration Statement
of Investors Capital Funds (the "Trust"), to file any request for exemptive
relief from state and federal regulations, to file the prescribed notices in the
various states regarding the sale of shares of the Trust, to perform on behalf
of the Trust any and all such acts as such attorneys-in-fact may deem necessary
or advisable in order to comply with the applicable laws of the United States or
any such state, and in connection therewith to execute and file all requisite
papers and documents including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys for service of
process; granting to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act requisite and necessary
to be done in connection therewith, as fully as each might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney on the
23rd day of September, 1999.
- -------------------------
