SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. __)
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant toss.240.14a-12
Eureka Funds
P.O. Box 182792
Columbus, Ohio 43218-2792
(Name of Registrant as Specified in its Charter)
Martin E. Lybecker, Esq.
Wilmer, Cutler & Pickering
2445 M Street, NW
Washington, DC 20037-1420
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies: N/A
2) Aggregate number of securities to which transaction applies: N/A
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined): N/A
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4) Proposed maximum aggregate value of transaction: N/A
5) Total fee paid: N/A
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid: N/A
2) Form, Schedule or Registration Statement No.: N/A
3) Filing Party: N/A
4) Date Filed: N/A
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IMPORTANT SHAREHOLDER INFORMATION
EUREKA FUNDS
The document you hold in your hands contains your proxy statement and
proxy card. A proxy card is, in essence, a ballot. When you vote your proxy, you
tell us how to vote on your behalf on important issues relating to Eureka Funds.
The proxy card may be completed by checking the appropriate box voting for or
against the specific proposal relating to Eureka Funds. If you simply sign the
proxy without specifying a vote, your shares will be voted in accordance with
the recommendation of the Board of Trustees.
We urge you to take the time to read the proxy statement, fill out the
proxy card and return it to us, or vote by telephone. Voting your proxy, and
doing so promptly, enables Eureka Funds to avoid conducting additional mailings.
When shareholders do not return their proxies in sufficient numbers, we will
incur the expense of follow-up solicitations.
Please take a few moments to exercise your right to vote. Thank you.
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EUREKA FUNDS
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON JUNE 27, 2002
Notice is hereby given that a Special Meeting of the holders of units
of beneficial interests ("Shareholders") of Eureka Funds (the "Meeting") will be
held at 10:00 a.m. (Eastern Time) on June 27, 2002 at 60 State Street, Suite
1300, Boston, MA 02109 for the following purposes:
VOTE: FUND(S) VOTING:
----- ---------------
1. To approve a new Investment Advisory Agreement between All Funds
Eureka Investment Advisors, Inc. and Eureka Funds, on
behalf of each of the Eureka Prime Money Market Fund, the
Eureka U.S. Treasury Obligations Fund, the Eureka
Investment Grade Bond Fund, the Eureka Global Fund
(formerly the Global Asset Allocation Fund), and the
Eureka Equity Fund (each, a "Fund" and collectively, the
"Funds").
2. To transact such other business as may properly come All Funds
before the Meeting or any adjournment thereof.
The proposals referred to above are discussed in the Proxy Statement
attached to this Notice. Each Shareholder is invited to attend the Meeting in
person.
Shareholders of record at the close of business on April 24, 2002 (the
"Shareholders") are entitled to notice of, and to vote at, this Meeting or any
adjournment thereof.
By order of the Trustees,
/s/ Martin R. Dean
Martin R. Dean
Secretary
Eureka Funds
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[Date]
SHAREHOLDERS ARE REQUESTED TO EXECUTE AND RETURN PROMPTLY, IN THE ENCLOSED
ENVELOPE, THE ACCOMPANYING PROXY CARD (OR VOTE BY TELEPHONE) WHICH IS BEING
SOLICITED BY EUREKA FUNDS' BOARD OF TRUSTEES. THIS IS IMPORTANT TO ENSURE A
QUORUM AT THE MEETING. PROXIES MAY BE REVOKED AT ANY TIME BEFORE THEY ARE
EXERCISED BY SUBMITTING TO EUREKA FUNDS A WRITTEN NOTICE OF REVOCATION OR A
SUBSEQUENTLY EXECUTED PROXY OR BY ATTENDING THE MEETING AND VOTING IN PERSON.
TO EUREKA FUNDS SHAREHOLDERS:
The purpose of this proxy is to announce that a Special Meeting of
Shareholders (the "Meeting") of Eureka Funds (the "Trust") has been scheduled
for June 27, 2002. The purpose of the Meeting is to submit to the shareholders a
vote to approve a new investment advisory agreement between Eureka Investment
Advisors, Inc. and the Trust, on behalf of each Fund.
While you are, of course, welcome to join us at the Meeting, most
shareholders cast their votes by filling out and signing the enclosed proxy card
(or voting by telephone). In order to conduct the Meeting, a majority of shares
must be represented either in person or by proxy. Whether or not you plan to
attend the Meeting, we need your vote. Please mark, sign, and date the enclosed
proxy card and return it promptly in the enclosed, postage-paid envelope so that
the maximum number of shares may be voted (or vote by telephone).
We encourage you to read the enclosed proxy statement thoroughly. In
addition, we have included on the next page a list of some commonly asked
questions and answers. If you have any additional questions, please call the
Trust directly at 1-888-890-8121.
Your vote is very important to us. As always, we thank you for your
confidence and support.
Sincerely,
/s/ Gregory T. Maddox
Gregory T. Maddox
President
Eureka Funds
PLEASE SIGN AND RETURN THE ENCLOSED PROXY BALLOT CARD
YOUR VOTE IS VERY IMPORTANT
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EUREKA FUNDS
Q: Why am I being asked to vote?
A: Prior to March 15, 2002, United California Bank was the parent company of
Eureka Investment Advisors, Inc., the Eureka Funds' (the "Trust")
investment adviser (the "Investment Adviser"). On March 15, 2002, BancWest
Corporation ("BancWest"), a wholly-owned subsidiary of BNP Paribas,
acquired United California Bank (the "Transaction"). On April 1, 2002,
BancWest merged United California Bank into Bank of the West, a
wholly-owned subsidiary of BancWest. As a result, Bank of the West is now
the parent company of the Investment Adviser. The branches of United
California Bank involved in the merger will continue to use the United
California Bank name for the foreseeable future. Although the Transaction
will not affect the Investment Adviser's day-to-day operations, investment
process, or portfolio management team, the Transaction has resulted in a
change of control of the Investment Adviser under the federal securities
laws. As a result, the then-existing investment advisory agreement between
the Investment Adviser and the Trust, on behalf of each Fund, automatically
terminated upon the consummation of the Transaction.
Q: What issue am I being asked to vote on?
A: As described in the enclosed Proxy Statement, you are being asked to vote
on a new investment advisory agreement between the Investment Adviser and
the Trust, on behalf of the Funds (the "New Agreement").
Q: Why are Shareholders voting on the New Agreement?
A: In order for the Investment Adviser to continue to serve as investment
adviser of each Fund, it is necessary for each Fund's Shareholders to
approve the New Agreement. The New Agreement that you are being asked to
approve is the same in all material respects as the former investment
advisory agreement between the Trust and the Investment Adviser that
terminated on March 15, 2002 (the "Previous Agreement").
The closing of the Transaction was not contingent upon prior Shareholder
approval of the New Agreement. Accordingly, the Trust's Board of Trustees
has approved an interim investment advisory agreement between the
Investment Adviser and the Trust, on behalf of each of the Funds, (the
"Interim Agreement") to allow the Investment Adviser to continue providing
investment advisory services to the Funds while Shareholder approval of the
New Agreement is pending. The Interim Agreement is scheduled to expire upon
the earlier of Shareholder approval of the New Agreement or 150 days after
the closing of the Transaction (i.e., August 12, 2002). If Shareholders do
not approve the New Agreement, the Interim Agreement will automatically
terminate on August 12, 2002, and the Board of Trustees will take such
action as they deem to be in the best interests of the Trust and the
Shareholders of the Funds.
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The following pages give you additional information on the Investment
Adviser, the proposed New Agreement, and the manner in which the
Transaction will affect you as a Shareholder.
Q: How will the Transaction affect me as a Fund Shareholder?
A: Assuming Shareholders of each Fund approve the New Agreement, the
Transaction will not result in any changes to the way in which the Funds
are managed. The Transaction will not cause any changes to the Funds'
investment objectives and policies. The terms of the New Agreement,
including the investment advisory fee rate to be paid by each Fund to the
Investment Adviser, are the same in all material respects as the Previous
Agreement. In addition, the Transaction is not expected to affect the
day-to-day investment operations of the Investment Adviser or result in a
change of the portfolio management team that services the Funds.
Similarly, the Transaction will not affect the Funds' contractual
relationships with their other service providers, including the Funds'
transfer agent and custodian. Thus, you should continue to receive the same
high level of service that you have come to expect as a Shareholder of
Eureka Funds.
Q: Will the investment advisory fees be the same?
A: The investment advisory fee rate paid by each Fund will remain the same
under the New Agreement.
Q: How do I vote my shares?
A: You may vote in person at the Meeting or simply sign, date, and return the
enclosed Proxy Card. Please note that you will receive one Proxy Card for
each Fund in which you own shares. Please be sure to sign, date, and return
each proxy card. You also may vote by telephone as described below in the
Proxy Statement. If we do not receive your Proxy Card, you may be contacted
to request that you cast your vote.
Q: What if I do not return my Proxy Card?
A: In order to conduct the Meeting, a quorum must be present, in person or by
proxy. A quorum is defined as representation of over 50% of the shares of
the Trust outstanding as of April 24, 2002. In the event that not enough
Shareholders return the enclosed Proxy Card to achieve a quorum, we will be
forced to incur additional expenses associated with additional
solicitations. In order to avoid additional costs, please return the
completed Proxy Card as soon as possible.
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Q: How does the Board suggest that I vote?
A: After careful consideration, the Board of Trustees of the Trust, including
the independent trustees, recommends that you vote FOR the proposal to
approve the New Agreement. The Board also wishes to urge you to vote and
return all the Proxy Cards you receive.
Q: Who should I call with questions about this proxy?
A: If you have any questions regarding this proxy, please contact the Trust
directly at 1-888-890-8121.
Q: Will the Trust pay for the proxy solicitation and legal costs associated
with the Meeting and the Transaction?
A: No, Bank of the West will bear these costs.
THE INFORMATION PROVIDED IN THIS "Q&A" IS SUPPORTED
BY DISCLOSURES CONTAINED IN THE ACCOMPANYING PROXY STATEMENT
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EUREKA FUNDS
P.O. BOX 182792
COLUMBUS, OHIO 43218-2792
----------------------------------
SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON JUNE 27, 2002
---------------------------------
PROXY STATEMENT
A COPY OF THE TRUST'S ANNUAL REPORT DATED SEPTEMBER 30, 2001 AND SEMI-ANNUAL
REPORT DATED [MARCH 31, 2002] IS AVAILABLE UPON REQUEST AND MAY BE OBTAINED
WITHOUT CHARGE BY CALLING 1-888-890-8121.
The enclosed proxy is solicited on behalf of the Board of Trustees (the
"Board") of the Eureka Funds (the "Trust"). The proxy is revocable at any time
before it is voted by sending written notice of the revocation or a subsequently
executed proxy to the Trust at the above address or by appearing personally and
electing to vote on June 27, 2002 at the Special Meeting of shareholders of the
Trust ("Shareholders") at 10:00 a.m. (Eastern Time) at 60 State Street, Suite
1300, Boston, MA 02109 (the "Meeting"). The cost of preparing and mailing the
Notice of Meeting, the Proxy Card, this Proxy Statement, and any additional
proxy materials has been or is to be borne by Bank of the West. Proxy
solicitations will be made primarily by mail, but may also be made by telephone,
telegraph, or personal interview conducted by certain officers or employees of
the Trust or by a third-party vendor hired by Bank of the West. It is
anticipated that Bank of the West will hire Georgeson Shareholder Services to
provide services for the solicitation at an estimated cost of $5,000. This Proxy
Statement and the enclosed Proxy Card are expected to be mailed on or about May
14, 2002, to Shareholders of record at the close of business on April 24, 2002
(the "Record Date"). In the event that the Shareholder signs and returns the
Proxy Card, but does not indicate a choice as to the proposal on the Proxy Card,
the proxy attorneys will vote those beneficial interests ("Shares") in favor of
the proposal.
Only Shareholders of record at the close of business on the Record Date
will be entitled to vote at the Meeting. On April 24, 2002, the Trust had
outstanding the following number of Shares, each Share being entitled to one
vote, and each fractional Share being entitled to a proportionate fractional
vote on each matter to be acted upon at the Meeting:
U.S. Treasury Obligations Fund:
Class A: 121,941,747.560
Class B: 10,247.110
Trust: 30,957,810.430
Prime Money Market Fund:
Class A: 320,345,356.560
9
Class B: 10,257.690
Trust: 68,315,101.150
Investment Grade Bond Fund:
Class A: 98,202.130
Class B: 1,268.901
Trust: 14,266,370.480
Global Fund (formerly the Global Asset Allocation Fund):
Class A: 68,678.080
Class B: 594.181
Trust: 5,188,784.894
Equity Fund:
Class A: 114,773.095
Class B: 3,103.537
Trust: 24,988,312.500
The California Money Market Fund and the Active OTC Stock Fund had not
commenced operations as of the date of this Proxy Statement.
As of April 24, 2002, Bank of the West was the beneficial shareholder
of the outstanding voting Shares of the Trust Shares of the Funds as follows:
___% of the U.S. Treasury Obligations Fund, ___% of the Prime Money Market Fund,
___% of the Investment Grade Bond Fund, ___% of the Global Fund, and ___% of the
Equity Fund. As a consequence, Eureka Investment Advisors, Inc. may be deemed to
be a controlling person of the Trust under the Investment Company Act of 1940,
as amended.
As of April 24, 2002, to the knowledge of the Trust's management, the
Officers and Trustees of the Trust beneficially owned less than 1% of the
outstanding Shares of the Trust, and such Officers and Trustees, as a group,
owned less than 1% of the outstanding Shares of the Trust.
The following table sets forth, as of April 10, 2002, the beneficial
ownership of each current Trustee, each of the executive officers, the executive
officers and Trustees as a group, and each Shareholder known to management of
the Trust to own beneficially more than 5% of the outstanding Shares of a series
of the Trust (each a "Fund"). Unless otherwise indicated, the Trust believes
that the beneficial owner set forth in the table has sole voting and investment
power.
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U.S. Treasury Obligations Fund -- Trust Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
United California Bank, Trustee 19,078,508.62 60.82%
601 S. Figueroa St., W 10-5
Los Angeles, CA 90017
Eureka Investment Advisors, Inc. 5,327,462.79 16.98%
FBO California Technology, Trade and Commerce Agency
601 S. Figueroa St., W 10-5
Los Angeles, CA 90017
Mintz, Irwin H. - IRA 2,824,733.77 9.01%
4400 MacArthur Blvd., Suite 160
Newport Beach, CA 92660
Wizan, Joseph - IRA 1,634,408.52 5.21%
601 S. Figueroa St., W 10-5
Los Angeles, CA 90017
U.S. Treasury Obligations Fund -- Class A Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
Santa Ana Board of Education 10,447,400.31 7.89%
Cafeteria Account
1601 East Chestnut Avenue
Santa Ana, CA 92701
Control Air Conditioning Inc. 10,226,223.02 7.76%
Payroll
2301 N Glassel Street
Orange, CA 92865
Eden Park Insurance Brokers 7,721,203.14 5.83%
Premium Account
Attn: Janet Corazza
801 S. Figueroa Street, Suite 600
Los Angeles, CA 90017
11
U.S. Treasury Obligations Fund -- Class B Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
BISYS Fund Services 10,247.11 100.00%
60 State St., Suite 1300
Boston, MA 02109
Prime Money Market Fund -- Trust Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
United California Bank, Trustee 36,736,388.62 47.33%
601 S. Figueroa St., W 10-5
Los Angeles, CA 90017
United California Bank Premiere Savings Plan 21,493,477.39 27.66%
Wells Fargo Bank Minnesota NA, Trustee
P.O. Box 1533
Minneapolis, MN 55480
Trinet Employer Group, Inc. 11,169,355.33 14.39%
General
C/O United California Bank Br. #098
1301 E 14th Street
San Leandro, CA 94577
Prime Money Market Fund -- Class A Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
Caremore Medical Group 19,626,425.99 5.84%
Managed Care
Cindy Grav
P.O. Box 1567
Downey, CA 90240
Atel Capital Equipment Fund IX 16,942,412.36 5.04%
Attn: Dean Cash
235 Pine Street, 6th Floor
San Francisco, CA 94104
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Prime Money Market Fund -- Class B Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
BISYS Fund Services 10,257.69 100.00%
60 State St., Suite 1300
Boston, MA 02109
Investment Grade Bond Fund -- Trust Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
United California Bank CA RET Plan 29074491 7,224,215.11 50.49%
Chase Manhattan Bank, Trustee
4 New York Plaza, 2d Floor
New York, NY 10004
United California Bank, Trustee 6,484,269.60 45.31%
601 S. Figueroa St., W 10-5
Los Angeles, CA 90017
Investment Grade Bond Fund -- Class A Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
Nationwide Trust Company FSB 16,599.45 17.07%
P.O. Box 182029
Columbus, OH 43218
PRL Glass Systems Inc. 8,302.11 8.54%
251 Mason Way
City of Industry, CA 91746
Linda Rogers 16,599.45 7.41%
Test Trust of Collece M. McGalliard
25401 Cabot Road, Suite 122
Laguna Hills, CA 92653
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Investment Grade Bond Fund -- Class B Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
BISYS Fund Services 1,057.30 83.32%
60 State St., Suite 1300
Boston, MA 02109
LPL Financial Services - Juan Flores 211.603 16.68%
9785 Towne Centre Drive
San Diego, CA 92121
Global Fund (formerly Global Asset Allocation Fund) -- Trust Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
United California Bank, Trustee 2,021,815.42 38.88%
601 S. Figueroa St., W 10-5
Los Angeles, CA 90017
United California Bank CA RET Plan 29074491 1,949,391.14 37.49%
Chase Manhattan Bank, Trustee
4 New York Plaza, 2d Floor
New York, NY 10004
United California Bank Premiere Svg. Plan 1,193,945.68 22.96%
Wells Fargo Bank Minnesota NA, Trustee
P.O. Box 1533
Minneapolis, MN 55480
Global Fund (formerly Global Asset Allocation Fund) -- Class A Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
PRL Glass Systems Inc. 6,904.01 10.05%
251 Mason Way
City of Industry, CA 91746
Rosemead College of English 3,653.34 5.32%
8705 E Valley Boulevard
Rosemead, CA 91770
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Global Fund (formerly Global Asset Allocation Fund) -- Class B Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
BISYS Fund Services 593.20 99.83%
60 State St., Suite 1300
Boston, MA 02109
Equity Fund -- Trust Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
United California Bank CA RET Plan 29074491 11,573,548.95 46.13%
Chase Manhattan Bank, Trustee
4 New York Plaza, 2d Floor
New York, NY 10004
United California Bank, Trustee 9,577,172.19 38.20%
601 S. Figueroa St., W 10-5
Los Angeles, CA 90017
United California Bank Premiere Saving Plan 3,664,544.64 14.61%
Wells Fargo Bank Minnesota NA, Trustee
P.O. Box 1533
Minneapolis, MN 55480
Equity Fund -- Class A Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
Linda Rogers 13,199.34 11.50%
Test Trust of Collece M. McGalliard
25401 Cabot Road, Suite 122
Laguna Hills, CA 92653
Lisa Ross 6,427.85 5.60%
6533 E Wardlow Road
Long Beach, CA 90808
15
LPL Financial Services - Sarah Whitehead 6,326.30 5.51%
9785 Towne Centre Drive
San Diego, CA 92121
PRL Glass Systems Inc. 6,022.36 5.25%
251 Mason Way
City of Industry, CA 91746
Equity Fund -- Class B Shares
NAME AND ADDRESS NUMBER OF PERCENT
OF BENEFICIAL OWNER SHARES OWNED OF CLASS
------------------- ------------ --------
Juan C. Guerra 2,975.96 95.89%
320 South St Andrews Place 306
Los Angeles, CA 90020
For purposes of determining the presence of a quorum and counting votes
on the matters presented, Shares represented by abstentions and "broker
non-votes" will be counted as present, but not as votes cast, at the Meeting.
Under the Investment Company Act of 1940 (the "1940 Act"), the affirmative vote
necessary to approve the matter under consideration may be determined with
reference to a percentage of votes present at the Meeting, which would have the
effect of treating abstentions and non-votes as if they were votes against the
proposal.
The Trust's executive offices are located at 3435 Stelzer Road,
Columbus, Ohio 43219-3035.
INTRODUCTION
This Meeting is being called for the following purposes: (1) to approve
a new Investment Advisory Agreement between Eureka Investment Advisors, Inc.
(the "Investment Adviser") and the Trust, on behalf of each of the Funds (the
"New Agreement"); and (2) to transact such other business as may properly come
before the Meeting or any adjournment thereof.
Approval of Proposal (1) requires the affirmative vote with respect to
any Fund of the lesser of: (a) 67% or more of the outstanding Shares of the Fund
present at the Meeting, if the holders of more than 50% of the outstanding
Shares are present or represented by proxy, or (b) more than 50% of the
outstanding Shares of the Fund.
At its meeting on February 27, 2002, the Board of Trustees (i) reviewed
the proposed transaction between United California Bank and BancWest Corporation
described below; (ii) approved an interim investment advisory agreement between
the Investment Adviser and the Trust, on behalf of each Fund (the "Interim
Agreement"), pending shareholder approval of a new investment advisory
agreement; (iii) approved the New Agreement, subject to shareholder approval;
and (iv) called the Meeting for the purposes set forth in the accompanying
Notice. The
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Trustees know of no business other than that mentioned in the Notice that will
be presented for consideration at the Meeting. Should other business properly be
brought before the Meeting, proxies will be voted in accordance with the best
judgment of the persons named as proxies.
PROPOSAL (1): APPROVAL OF NEW INVESTMENT ADVISORY AGREEMENT
Information About the Investment Adviser
Eureka Investment Advisors, Inc. (the "Investment Adviser"), 601 S.
Figueroa Street, Los Angeles, California 90017, serves as the investment adviser
to the Trust, subject to the general supervision of the Board, and is
responsible for the day-to-day management of the Funds' investment portfolios.
Sanwa Bank California served as the investment adviser to the Trust since the
Trust commenced operations pursuant to an investment advisory agreement dated
October 21, 1997. On May 1, 2001, Sanwa Bank California reorganized its
investment advisory division to form Eureka Investment Advisors, Inc., a
separate, wholly-owned subsidiary of Sanwa Bank California. Following the
reorganization, the management and investment advisory personnel of Sanwa Bank
California that had provided investment management services to the Funds
continued to do so as employees of Eureka Investment Advisors, Inc pursuant to a
superseding investment advisory agreement entered into as of May 1, 2001 (the
"Previous Agreement"). This transaction was not an "assignment" of the
investment advisory contract for purposes of the 1940 Act and, therefore, a
shareholder vote approving the Previous Agreement was not required. The Previous
Agreement was last approved by the Board on February 27, 2002.
On July 2, 2001, Sanwa Bank California and Tokai Bank of California
merged to form United California Bank, 601 S. Figueroa Street, Los Angeles,
California 90017. As a result, the Investment Adviser became a wholly-owned
subsidiary of United California Bank. This transaction was not an "assignment"
of the investment advisory contract for purposes of the 1940 Act and, therefore,
a shareholder vote approving the Previous Agreement was not required.
On March 15, 2002, BancWest Corporation ("BancWest"), 999 Bishop
Street, Honolulu, Hawaii 96813, a wholly-owned subsidiary of BNP Paribas, 16,
Boulevard des Italiens, 75009 Paris, France, completed its acquisition of all
the outstanding stock of United California Bank. On April 1, 2002, BancWest
merged United California Bank into Bank of the West, 180 Montgomery Street, San
Francisco, California 94104, a wholly-owned subsidiary of BancWest. As a result,
Bank of theWest became the parent of the Investment Adviser. The branches of
United California Bank involved in the merger will continue to use the United
California Bank name for the foreseeable future. BancWest's acquisition of
United California Bank (the "Transaction") resulted in an "assignment," as that
term is defined in the 1940 Act, of the Previous Agreement. As required by the
1940 Act, the Previous Agreement provided for its automatic termination in the
event of its assignment. The closing of the Transaction was not contingent upon
prior Shareholder approval of a new investment advisory agreement. In
anticipation of the closing of the Transaction, on February 27, 2002, the Board
of Trustees, including the Trustees who are not "interested persons" of the
Trust (as defined in the 1940 Act) (the "Independent Trustees"), approved the
Interim Agreement to allow the Investment Adviser to continue to serve as
investment adviser to the Funds after the consummation of the Transaction. Since
the consummation of the Transaction on March 15, 2002, the Investment
17
Adviser has been serving as investment adviser to the Funds pursuant to the
Interim Agreement. The Interim Agreement provides that compensation earned
thereunder by the Investment Adviser between the termination of the Previous
Agreement and Shareholder approval of the New Agreement will be held in an
interest-bearing escrow account for a period of up to 150 days from the
consummation of the Transaction and the termination of the Previous Agreement on
March 15, 2002. Except for the time periods covered by the Interim Agreement,
the provision relating to the term and termination of the agreement, and the
escrow provisions, the Interim Agreement is substantively identical in all
material respects to the Previous Agreement.
On February 27, 2002, the Board, including the Independent Trustees,
approved the New Agreement, subject to approval by each Fund's Shareholders. If
Shareholders of a Fund approve the New Agreement, the amount held in the escrow
account under the Interim Agreement with respect to that Fund, plus interest,
will be paid to the Investment Adviser. If Shareholders of a Fund do not approve
the New Agreement, the Investment Adviser will be paid the lesser of the costs
incurred in performing its services under the Interim Agreement with respect to
that Fund or the total amount in the escrow account, plus interest earned. The
Board also will take such further action as it deems to be in the best interests
of the Fund and the Shareholders of the Fund.
A form of the New Agreement is attached to this Proxy Statement as
Exhibit A. Except for the time periods covered by the agreements and the
provision relating to the term and termination of the agreements, the New
Agreement is identical in all material respects to the Previous Agreement. In
addition, the Funds' investment advisory fee rates are unchanged. The New
Agreement would become effective upon shareholder approval. The New Agreement
provides that unless terminated as provided therein, the New Agreement will
continue until _________. The provisions for its continuance thereafter are
identical to the Previous Agreement.
The Board, and the Independent Trustees, unanimously recommend that
Shareholders vote in favor of the New Agreement.
Description of the New Agreement
The Previous Agreement and the New Agreement are the same in all
material respects. The New Agreement provides that, subject to the supervision
of the Trust's Board, the Investment Adviser will provide each Fund with a
continuous investment program, including investment research and management with
respect to all securities and investments and cash equivalents in each Fund. The
Investment Adviser, as the investment adviser to each Fund, manages the
investment operations of each Fund and the composition of each Fund's portfolio,
including the purchase, retention, and disposition of securities and other
investments, in accordance with each Fund's investment objective, policies, and
restrictions, as stated in the Prospectuses, resolutions of the Board, and any
undertakings with regulatory authorities that are provided by the Trust to the
Investment Adviser. In doing so, the Investment Adviser agrees to: supervise
each Fund's investments and to determine from time to time what investments or
securities will be purchased, retained or sold by each Fund, and what portion of
the assets will be invested or held uninvested in cash; comply in all material
respects with the requirements of the 1940 Act and all other applicable federal
and state laws and regulations; place or cause to be
18
placed orders for purchase or sale of securities on behalf of each Fund and in
doing so attempt to obtain prompt execution of orders in an effective manner at
the most favorable price; and preserve all books and records required to be
maintained under the 1940 Act.
The New Agreement provides that it may be terminated as to a particular
Fund at any time, without payment of penalty, on 60 days' written notice by the
Trust (by vote of the Board or by vote of holders of a majority of the
outstanding voting securities of such Fund) or by the Investment Adviser. The
New Agreement also provides that it automatically terminates in the event of its
assignment (as defined in the 1940 Act).
The New Agreement further provides that the Investment Adviser is not
liable for any error of judgment or mistake of law or for any loss suffered by
the Funds in connection with the performance of the New Agreement, except a loss
resulting from a breach of fiduciary duty under the 1940 Act with respect to the
receipt of compensation for services or from willful misfeasance, bad faith, or
gross negligence on the part of the Investment Adviser in the performance of its
duties or from reckless disregard by the Investment Adviser of its obligations
and duties under the New Agreement.
The New Agreement will be in effect for an initial term ending on
_________, and shall continue from year to year thereafter, provided that it is
specifically approved at least annually (i) by the vote of a majority of the
Independent Trustees cast in person at a meeting called for the purpose of such
vote, and (ii) by the vote of a majority of the Board or by the vote of a
majority of each Fund's outstanding voting securities.
Information on Investment Advisory Fees and Expense Limitations
Under the Previous Agreement, as compensation for its investment
advisory services to the Funds, the Investment Adviser received from each Fund a
fee computed daily and paid monthly on the first business day of each month
equal to the lesser of (i) the fee at the applicable annual rate set forth in
the following table or (ii) such fee as may from time to time be agreed upon in
writing by the Trust and the Investment Adviser:
Fund % of Average Daily Net Assets
---- -----------------------------
U.S. Treasury Obligations Fund 0.20%
Prime Money Market Fund 0.30%
Investment Grade Bond Fund 0.60%
Global Fund 0.90%
Equity Fund 0.75%
19
Each Fund's investment advisory fee rates will be the same under the
New Agreement. For the fiscal year ended September 30, 2001, the Funds paid the
Investment Adviser the following fees for investment advisory services:
Fund Amount Paid Amount Waived
---- ----------- -------------
U.S. Treasury Obligations Fund $338,901 $57,479
Prime Money Market Fund $1,077,580 $116,511
Investment Grade Bond Fund $816,242 $51,133
Global Fund $789,811 $27,879
Equity Fund $1,277,927 $61,642
In addition to the investment advisory fees paid by each Fund to the
Investment Adviser, each Fund pays distribution fees to BISYS Fund Services,
3435 Stelzer Road, Columbus, Ohio 43219-3035, which serves as the principal
underwriter, administrator, and distributor to the Trust. These fees are paid
pursuant to a plan adopted by the Board under Rule 12b-1 of the 1940 Act. A
portion of these fees are paid by BISYS Fund Services to United California Bank.
For the fiscal year ended September 30, 2001, the amount of Rule 12b-1 fees paid
to United California Bank was $____. These fees will continue to be paid if
Shareholders approve the New Agreement.
Board of Trustees Considerations
On February 27, 2002, the Board met with senior management of the
Investment Adviser to discuss the Transaction, including the rationale for the
Transaction and the potential benefits for Shareholders of the Funds. Prior to
and at that time, the Board was provided with information concerning the
Transaction and the Interim and New Agreements.
In the course of these discussions, the Investment Adviser advised the
Board, including the Independent Trustees, that it did not expect that the
Transaction would have a material effect on the operations of the Funds or their
Shareholders. The Investment Adviser also noted that management of the
Investment Adviser and BancWest did not contemplate at that time any changes in
the investment operations of the Funds. The investment objectives and policies
of each Fund will remain the same. The investment advisory fee rates are not
expected to increase as a result of the Transaction. The Investment Adviser will
continue to provide the high quality of service it has provided in the past. The
Investment Adviser emphasized that the Transaction, if consummated, would
provide the Investment Adviser with access to the distribution channel of the
Bank of the West's existing bank locations.
During the course of their deliberations, the Trustees, including the
Independent Trustees, considered the information provided by the Investment
Adviser. The Board also considered a variety of other factors, including the
effect that the Transaction may have on the Investment
20
Adviser and its ability to perform its duties under the New Agreement; the
nature, quality, and extent of the services furnished by the Investment Adviser
to the Funds; the investment record of the Investment Adviser in managing the
Funds; comparative data as to investment performance, advisory fees and other
fees, including expense ratios; possible benefits to the Investment Adviser from
serving as the investment adviser to the Funds; the financial resources of the
Investment Adviser; and the Investment Adviser's commitment that it will
continue to furnish high quality services to the Funds.
In addition to the foregoing factors, the Board, including the
Independent Trustees, gave careful consideration to the likely impact of the
Transaction on the Investment Adviser. The Board considered, among other things,
information regarding the financial resources and business reputation of
BancWest and Bank of the West and the structure of the Transaction, which
affords the Investment Adviser's executives substantial autonomy over their
operations and contemplates the continued use by the Investment Adviser of the
Eureka name in offering its products and services, including the Funds.
The Board also considered that the Investment Adviser, to the extent
necessary, will use reasonable and diligent efforts to comply with section 15(f)
of the 1940 Act, which provides that, under certain circumstances, an investment
adviser to an investment company or any of its affiliates may receive benefits
or compensation in connection with a change in control of the investment adviser
(such as BancWest's acquisition of United California Bank). In this instance, no
"unfair burden" will be imposed upon the Trust as a result of a change of
control transaction or any express or implied terms, conditions, or
understandings applicable to the transaction. The term "unfair burden" includes
any arrangement during the two-year period after the transaction whereby the
investment adviser, or any interested person of the adviser, receives or is
entitled to receive any compensation, directly or indirectly, from the
investment company or its shareholders (other than fees for bona fide investment
advisory or other services) or from any person in connection with the purchase
or sale of securities or other property to, from, or on behalf of the investment
company (other than bona fide ordinary compensation as principal underwriter for
such investment company). No such compensation that might constitute an undue
burden is contemplated in connection with the Transaction. Moreover, Bank of the
West has undertaken to pay the costs of preparing and distributing proxy
materials to, and of holding the Meeting of, the Shareholders as well as other
fees and expenses in connection with the Transaction, including the fees and
expenses of legal counsel to the Funds.
Based on the foregoing, the Board, including the Independent Trustees,
unanimously approved the New Agreement, on behalf of each Fund, and recommends
the New Agreement to Shareholders for approval.
Description of the Investment Adviser
The Investment Adviser, 601 South Figueroa Street, Los Angeles,
California, 90017, is a registered investment adviser under the Investment
Advisers Act of 1940. In addition to advising the Trust, the Investment Adviser
acts as investment adviser to other institutional accounts with aggregate assets
of approximately $1.2 billion as of April 1, 2002.
21
Since the closing of the Transaction, the Investment Adviser has been
and will continue to be a wholly-owned subsidiary of Bank of the West, D/B/A
United California Bank. Prior to that time, the Investment Adviser was a
wholly-owned subsidiary of United California Bank.
As of the date of this proxy statement, Howard N. Gould (Chairman),
Robert Bannon (President, Chief Executive Officer, and Director), and Henry
Baltazar (Chief Financial Officer and Secretary) are the executive officers and
directors of the Investment Adviser. Mr. Gould is also a Trustee of the Trust.
The address of each officer and director of the Investment Adviser is 601 S.
Figueroa Street, Los Angeles, California 90017.
THE BOARD OF TRUSTEES RECOMMENDS THAT SHAREHOLDERS VOTE "FOR" THE
APPROVAL OF THE INVESTMENT ADVISORY AGREEMENT.
OTHER BUSINESS
The Trustees know of no other business to be presented at the Meeting.
However, if any additional matters should be properly presented, proxies will be
voted in accordance with the judgment of the persons named in the proxy. Because
the Fund did not have notice of any such matters before May 14, 2002, the
persons named as proxies may exercise their discretionary voting power with
respect to any matter presented at the Meeting.
ADDITIONAL INFORMATION
INFORMATION ABOUT THE PRINCIPAL UNDERWRITER AND ADMINISTRATOR
BISYS Fund Services, 3435 Stelzer Road, Columbus, Ohio 43219-3035,
serves as the principal underwriter, administrator, and distributor to the
Trust.
OTHER MATTERS AND DISCRETION OF PERSONS NAMED IN THE PROXY
If at the time any session of the Meeting is called to order, a quorum
is not present, in person or by proxy, the persons named as proxies may vote
those proxies which have been received to adjourn the Meeting to a later date.
In the event that a quorum is present, but sufficient votes in favor of the
proposal have not been received, the persons named as proxies may propose one or
more adjournments of the Meeting to permit further solicitation of proxies with
respect to any such proposal. All such adjournments will require the affirmative
vote of a majority of the Shares present in person or by proxy at the session of
the Meeting to be adjourned. The persons named as proxies will vote those
proxies which they are entitled to vote in favor of the proposal, in favor of
such adjournment, and will vote those proxies required to be voted against the
proposal, against any such adjournment.
Shareholder proposals to be presented at any future meeting of
Shareholders must be received by the Trust a reasonable time before the Trust's
solicitation of proxies for that meeting in order for such proposals to be
considered for inclusion in the proxy materials relating to that meeting.
22
If you do not expect to attend the Meeting, please sign your proxy card
promptly and return it in the enclosed envelope to avoid unnecessary expense and
delay. No postage is necessary. Shareholders also may vote by telephone.
Only one Proxy Statement is being delivered to multiple Shareholders
sharing an address unless the Trust has received contrary instructions from one
or more of the Shareholders. The Trust will deliver promptly upon written or
oral request a separate copy of the Proxy Statement to a Shareholder at a shared
address to which a single copy of the Proxy Statement was delivered. A
Shareholder may obtain a separate copy of the Proxy Statement by writing to the
Trust at 3435 Stelzer Road, Columbus, Ohio 43219 or by calling 1-888-890-8121.
If Shareholders sharing a single address are receiving multiple copies of annual
reports or proxy statements, they can request delivery of a single copy of such
documents by writing to the Trust at the above address or by calling
1-888-890-8121.
MAY 14, 2002
YOUR VOTE IS IMPORTANT. YOU CAN HELP EUREKA FUNDS AVOID THE NECESSITY AND
EXPENSE OF SENDING FOLLOW-UP LETTERS TO ENSURE A QUORUM BY PROMPTLY:
MARKING, SIGNING, DATING AND RETURNING THE ENCLOSED PROXY.
(THE ENCLOSED ENVELOPE REQUIRES NO POSTAGE IF MAILED IN
THE UNITED STATES). SHAREHOLDERS ALSO MAY VOTE BY TELEPHONE.
IF YOU ARE UNABLE TO ATTEND THE MEETING, PLEASE VOTE BY ONE OF THE ABOVE METHODS
SO THAT THE NECESSARY QUORUM MAY BE REPRESENTED AT THE MEETING.
Certain Shareholders of the Trust Shares who have not returned their proxy card
may be contacted by a representative of the Trust and requested to submit their
completed proxy card via facsimile.
23
Exhibit A
FORM OF
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of _____________ between the Eureka Funds, a
Massachusetts business trust (hereinafter called the "Trust"), and Eureka
Investment Advisors, Inc., a California corporation registered under the
Investment Advisers Act of 1940 with its principal office in Los Angeles,
California (hereinafter called the "Investment Adviser").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Trust desires to retain the Investment Adviser to furnish
certain investment advisory and related services described below in connection
with the management of each of the investment portfolios of the Trust identified
on Schedule A hereto (the "Funds"), and the Investment Adviser desires to
furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Investment Adviser to act
as investment adviser to the Funds for the period and on the terms set forth in
this Agreement. The Investment Adviser accepts such appointment and agrees to
furnish the services herein set forth for the compensation herein provided.
2. Delivery of Documents. The Trust has furnished the Investment
Adviser with copies properly certified or authenticated of each of the following
documents:
(a) the Trust's Agreement and Declaration of Trust, dated April 7,
1997 and filed with the Secretary of State of The Commonwealth of Massachusetts,
and all amendments thereto or restatements thereof (such Agreement and
Declaration of Trust, as presently in effect and as it shall from time to time
be amended or restated, is herein called the "Declaration of Trust");
(b) the Trust's Bylaws and amendments thereto;
(c) resolutions of the Trust's Board of Trustees authorizing the
appointment of the Investment Adviser and approving this Agreement;
(d) the Trust's original Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and Exchange Commission on July
31, 1997 and all amendments thereto;
(e) the Trust's current Registration Statement on Form N-1A under
the Securities Act of 1933, as amended ("1933 Act"), and under the 1940 Act as
filed with the Securities and Exchange Commission; and
24
(f) the Funds' most recent prospectuses and the Trust's Statement
of Additional Information relating to the Funds (such prospectuses and Statement
of Additional Information, as presently in effect, and all amendments and
supplements thereto are herein collectively called the "Prospectus" or the
"Prospectuses").
The Trust will promptly furnish the Investment Adviser with copies of
all amendments of or supplements to the foregoing documents.
3. Management. Subject to the supervision of the Trust's Board of
Trustees, the Investment Adviser will provide or cause to be provided a
continuous investment program for each Fund identified on Schedule A hereto,
including investment research and management with respect to all securities and
investments and cash equivalents in such Funds. The Investment Adviser will
determine or cause to be determined from time to time what securities and other
investments will be purchased, retained or sold by the Trust with respect to
each Fund identified on Schedule A hereto and will place or cause to be placed
orders for purchase and sale on behalf of the Trust with respect to such Fund.
The Investment Adviser will provide the services under this Agreement
in accordance with each Fund's investment objective, policies and restrictions
as stated in the Prospectuses, resolutions of the Trust's Board of Trustees, and
any undertakings with regulatory authorities which are provided by the Trust to
the Investment Adviser. The Investment Adviser further agrees that it:
(a) will use the same skill and care in providing such services as
it uses in providing services to fiduciary accounts for which it has investment
responsibilities;
(b) will comply in all material respects with all applicable Rules
and Regulations of the Securities and Exchange Commission under the Investment
Company Act of 1940 and in addition will conduct its activities under this
Agreement in accordance with any applicable regulations pertaining to the
investment advisory activities of the Investment Adviser;
(c) will place or cause to be placed orders for the Funds
identified on Schedule A hereto either directly with the issuer or with any
broker or dealer and, in placing orders with brokers and dealers, the Investment
Adviser or any sub-investment adviser employed by the Investment Adviser will
attempt to obtain prompt execution of orders in an effective manner at the most
favorable price. Consistent with this obligation, when the execution and price
offered by two or more brokers or dealers are comparable, the Investment Adviser
or any sub-investment adviser employed by the Investment Adviser may, in its
discretion, purchase and sell portfolio securities to and from brokers and
dealers who provide the Investment Adviser or any such sub-investment adviser
with research advice and other services; and
(d) will treat confidentially and as proprietary information of
the Trust all records and other information relative to the Trust and prior,
present, or potential shareholders of the Trust learned by, or disclosed to, the
Investment Adviser in the course of its performance of its responsibilities and
duties under this Agreement, and will not use such records and information for
any purpose other than performance of its responsibilities and duties hereunder,
25
except after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where the
Investment Adviser may be exposed to civil, regulatory, or criminal sanctions
for failure to comply when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
4. Use of Sub-Investment Adviser. The Investment Adviser may, subject
to the approvals required under the 1940 Act, employ a sub-investment adviser to
assist the Investment Adviser in the performance of its duties under this
Agreement. Such use does not relieve the Investment Adviser of any duty or
liability it would otherwise have under this Agreement. Compensation of any such
sub-investment adviser for services provided and expenses assumed under any
agreement between the Investment Adviser and such sub-investment adviser
permitted under this paragraph is the sole responsibility of the Investment
Adviser.
5. Services Not Exclusive. The investment management services furnished
by the Investment Adviser hereunder are not to be deemed exclusive. Except to
the extent necessary to perform the Investment Adviser's obligations under this
Agreement, nothing herein shall be deemed to limit or restrict the right of the
Investment Adviser, or any subsidiary or affiliate of the Investment Adviser, or
any employee of the Investment Adviser, to engage in any other business or to
devote time and attention to any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other person.
6. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Investment Adviser hereby agrees that all records which
it maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
The Investment Adviser further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records required to be maintained by Rule
31a-1 under the 1940 Act.
7. Expenses. During the term of this Agreement, the Investment Adviser
will pay all expenses incurred by it in connection with its activities under
this Agreement other than the cost of securities (including brokerage
commissions or charges, if any) purchased for the Trust. The Trust will be
responsible for all of the Trust's expenses and liabilities.
8. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, each of the Funds will pay the Investment Adviser
and the Investment Adviser will accept as full compensation therefor a fee
computed daily and paid monthly on the first business day of each month equal to
the lesser of (i) the fee at the applicable annual rate set forth on Schedule A
hereto or (ii) such fee as may from time to time be agreed upon in writing by
the Trust and the Investment Adviser. If the fee payable to the Investment
Adviser pursuant to this paragraph begins to accrue after the beginning of any
month or if this Agreement terminates before the end of any month, the fee for
the period from such date to the end of such month or from the beginning of such
month to the date of termination, as the case may be, shall be prorated
according to the proportion which such period bears to the full month in which
such effectiveness or termination occurs. For purposes of calculating fees, the
value of a Fund's net
26
assets shall be computed in the manner specified in the Prospectus and the
Trust's Declaration of Trust for the computation of the value of the Fund's net
assets in connection with the determination of the net asset value of the Fund's
shares.
9. Limitation of Liability. The Investment Adviser 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 a breach of fiduciary duty under the Investment Company Act of
1940 with respect to the receipt of compensation for services or a loss
resulting from willful misfeasance, bad faith or gross negligence on the part of
the Investment Adviser in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement. In no case
shall the Investment Adviser be liable for actions taken or nonactions with
respect to the performance of services under this Agreement based upon specific
information, instructions, or requests given or made to the Investment Adviser
by an officer of the Trust thereunto duly authorized. Notwithstanding the
foregoing, nothing in this paragraph should be deemed to be a waiver or
limitation of any rights any Fund may have under the Federal securities laws.
10. Duration and Termination. This Agreement will become effective as
to a particular Fund as of the date first written above, provided that it shall
have been approved by vote of a majority of the outstanding voting securities of
such Fund, in accordance with the requirements under the 1940 Act, and, unless
sooner terminated as provided herein, shall continue in effect until __________.
Thereafter, if not terminated, this Agreement shall continue in effect as to a
particular Fund for successive periods of twelve months each ending on ______ of
each year, provided such continuance is specifically approved at least annually
(a) by the vote of a majority of those members of the Trust's Board of Trustees
who are not parties to this Agreement or interested persons of any party to this
Agreement, cast in person at a meeting called for the purpose of voting on such
approval, and (b) by the vote of a majority of the Trust's Board of Trustees or
by the vote of a majority of the outstanding voting securities of such Fund.
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
Investment Adviser. This Agreement will immediately terminate in the event of
its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities", "interested persons" and "assignment" shall have
the same meaning of such terms in the 1940 Act.)
11. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
12. Legal Advice. The Investment Adviser shall notify the Trust at any
time the Investment Adviser believes that it is in need of the advice of counsel
with regard to its responsibilities and duties pursuant to this Agreement; if
the Investment Adviser wishes to seek the advice of legal counsel to the Trust
it must first notify the Trust and seek its approval, which shall not be
unreasonably withheld, such advice to be at the expense of the Trust or Funds
unless relating to a matter involving the Investment Adviser's willful
misfeasance, bad faith, gross
27
negligence or reckless disregard with respect to the Investment Adviser's
responsibilities and duties hereunder and the Investment Adviser shall in no
event be liable to the Trust or any Fund or any shareholder or beneficial owner
of the Trust for any action reasonably taken pursuant to such advice.
13. 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.
Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
last address furnished by the other party to the party giving notice: if to the
Trust, at 3435 Stelzer Road, Columbus, Ohio 43219, Attention: Martin R. Dean;
and if to the Investment Adviser, at Eureka Investment Advisors, Inc., 601 S.
Figueroa Street, Los Angeles, California 09917, Attention: Robert Bannon.
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
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 State of California.
The names "Eureka Funds" and "Trustees of Eureka Funds" refer
respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under an Agreement and
Declaration of Trust dated as of April 7, 1997 to which reference is hereby made
and a copy of which is on file at the office of the Secretary of State of The
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of "Eureka
Funds" entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities, and
are not binding upon any of the Trustees, shareholders or representatives of the
Trust personally, but bind only the assets of the Trust, and all persons dealing
with any series of shares of the Trust must look solely to the assets of the.
Trust belonging to such series for the enforcement of any claims against the
Trust.
14. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH PARTY
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. Each party hereby
agrees that service of all process in any such proceeding in any such court may
be made by registered or certified mail, return receipt requested, to such party
at its address
28
provided in Section 13, such service being hereby acknowledged by such party to
be sufficient for personal jurisdiction in any action against such party in any
such court and to be otherwise effective and binding service in every respect.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of a party to bring proceedings
against any other party in the courts of any other jurisdiction.
15. WAIVER OF JURY TRIAL. EACH PARTY HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Each party acknowledges that this waiver is a material
inducement for the other parties to enter into a business relationship, that
such parties have already relied on this waiver in entering into this Agreement
and that each will continue to rely on this waiver in their related future
dealings. Each party further warrants and represents that it has reviewed this
waiver with its legal counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
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.
EUREKA FUNDS
By:
--------------------------------------
Title:
-----------------------------------
EUREKA INVESTMENT ADVISORS, INC.
By:
--------------------------------------
Title:
-----------------------------------
29
Schedule A
to the
Investment Advisory Agreement between the Eureka Funds
and Eureka Investment Advisors, Inc.
dated________________
Name of Fund Compensation*
- ------------ ------------
Eureka Prime Money Market Fund Annual rate of thirty one-hundredths of
one percent (0.30%) of the Eureka Prime
Money Market Fund's average daily net
assets.
Eureka U.S. Treasury Obligations Fund Annual rate of twenty one-hundredths of
one percent (0.20%) of the Eureka U.S.
Treasury Obligations Fund's average daily
net assets.
Eureka Investment Grade Bond Fund Annual rate of sixty one-hundredths of
one percent (0.60%) of the Eureka
Investment Grade Bond Fund's average
daily assets.
Eureka Global Fund Annual rate of ninety one-hundredths of
one percent (0.90%) of the Eureka Global
Fund's average daily net assets.
Eureka Equity Fund Annual rate of seventy-five
one-hundredths of one percent (0.75%) of
Eureka Equity Fund's average daily net
assets.
EUREKA FUNDS EUREKA INVESTMENT ADVISORS, INC.
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
- --------
* All fees are computed daily and paid monthly.
30
EUREKA GLOBAL FUND
PROXY FOR A MEETING OF
SHAREHOLDERS ON JUNE 27, 2002
THIS PROXY IS SOLICITED BY THE BOARD OF TRUSTEES OF EUREKA FUNDS (the "Trust")
for use at a Special Meeting of Shareholders of the Global Fund ("Meeting") to
be held on June 27, 2002 at 10:00 a.m. Eastern Time at 60 State Street, Suite
1300, Boston, MA 02109.
The undersigned hereby appoints Gregory T. Maddox and Martin R. Dean, each of
them with full power of substitution as proxies of the undersigned, to vote, as
designated below, at the above-stated Meeting and at any and all adjournments
thereof, all Shares in Eureka Funds held of record by the undersigned on the
record date for the Meeting, upon the following matter and upon any other matter
which may come before the Meeting in their discretion.
PROPOSAL (1) Approval of a new Investment Advisory Agreement between Eureka
Investment Advisors, Inc. and the Trust on behalf of the Global Fund.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
Every properly executed proxy will be voted in the manner specified hereon and,
in the absence of specification, will be treated as granting authority to vote
FOR the below-enumerated proposals.
The undersigned hereby acknowledges receipt of the Notice of Special Meeting
dated May 14, 2002 and the Proxy Statement attached hereto:
-----------------------------------------
Signature(s) of Shareholder(s)
-----------------------------------------
Signature(s) of Shareholder(s)
Date: _________________________, 2002
IMPORTANT: Please sign legibly and exactly as the name
appears on this card. Joint owners must EACH sign the proxy.
When signing as executor, administrator, attorney, Trustee or
guardian, or as custodian for a minor, please give the FULL
title of such. If a corporation, please give the FULL
corporate name and indicate the signer's office. If a
partner, please sign in the partnership name.
1
*** IF VOTING BY MAIL, PLEASE MARK, SIGN, DATE AND RETURN THE
PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE ***
OR
TO VOTE BY TELEPHONE
1. Read the enclosed Proxy Statement and have your Proxy Card* at hand.
2. Call [1-800-690-6903].
3. Enter the 12-digit Control Number found on your Proxy Card.
4. Cast your vote using the easy-to-follow instructions.
TO VOTE BY MAIL
1. Read the Proxy Statement.
2. Check the appropriate boxes on the proxy card below.
3. Sign and date the proxy card.
4. Return the proxy card in the envelope provided.
* DO NOT MAIL THE PROXY CARD IF VOTING BY TELEPHONE.
2
EUREKA U.S. TREASURY OBLIGATIONS FUND
PROXY FOR A MEETING OF
SHAREHOLDERS ON JUNE 27, 2002
THIS PROXY IS SOLICITED BY THE BOARD OF TRUSTEES OF EUREKA FUNDS (the "Trust")
for use at a Special Meeting of Shareholders of the U.S. Treasury Obligations
Fund ("Meeting") to be held on June 27, 2002 at 10:00 a.m. Eastern Time at 60
State Street, Suite 1300, Boston, MA 02109.
The undersigned hereby appoints Gregory T. Maddox and Martin R. Dean, each of
them with full power of substitution as proxies of the undersigned, to vote, as
designated below, at the above-stated Meeting and at any and all adjournments
thereof, all Shares in Eureka Funds held of record by the undersigned on the
record date for the Meeting, upon the following matter and upon any other matter
which may come before the Meeting in their discretion.
PROPOSAL (1) Approval of a new Investment Advisory Agreement between Eureka
Investment Advisors, Inc. and the Trust on behalf of the U.S. Treasury
Obligations Fund.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
Every properly executed proxy will be voted in the manner specified hereon and,
in the absence of specification, will be treated as granting authority to vote
FOR the below-enumerated proposals.
The undersigned hereby acknowledges receipt of the Notice of Special Meeting
dated May 14, 2002 and the Proxy Statement attached hereto:
-----------------------------------------
Signature(s) of Shareholder(s)
-----------------------------------------
Signature(s) of Shareholder(s)
Date: _________________________, 2002
IMPORTANT: Please sign legibly and exactly as the name
appears on this card. Joint owners must EACH sign the proxy.
When signing as executor, administrator, attorney, Trustee or
guardian, or as custodian for a minor, please give the FULL
title of such. If a corporation, please give the FULL
corporate name and indicate the signer's office. If a
partner, please sign in the partnership name.
1
*** IF VOTING BY MAIL, PLEASE MARK, SIGN, DATE AND RETURN THE
PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE ***
OR
TO VOTE BY TELEPHONE
1. Read the enclosed Proxy Statement and have your Proxy Card* at hand.
2. Call [1-800-690-6903].
3. Enter the 12-digit Control Number found on your Proxy Card.
4. Cast your vote using the easy-to-follow instructions.
TO VOTE BY MAIL
1. Read the Proxy Statement.
2. Check the appropriate boxes on the proxy card below.
3. Sign and date the proxy card.
4. Return the proxy card in the envelope provided.
* DO NOT MAIL THE PROXY CARD IF VOTING BY TELEPHONE.
2
EUREKA PRIME MONEY MARKET FUND
PROXY FOR A MEETING OF
SHAREHOLDERS ON JUNE 27, 2002
THIS PROXY IS SOLICITED BY THE BOARD OF TRUSTEES OF EUREKA FUNDS (the "Trust")
for use at a Special Meeting of Shareholders of the Prime Money Market Fund
("Meeting") to be held on June 27, 2002 at 10:00 a.m. Eastern Time at 60 State
Street, Suite 1300, Boston, MA 02109.
The undersigned hereby appoints Gregory T. Maddox and Martin R. Dean, each of
them with full power of substitution as proxies of the undersigned, to vote, as
designated below, at the above-stated Meeting and at any and all adjournments
thereof, all Shares in Eureka Funds held of record by the undersigned on the
record date for the Meeting, upon the following matter and upon any other matter
which may come before the Meeting in their discretion.
PROPOSAL (1) Approval of a new Investment Advisory Agreement between Eureka
Investment Advisors, Inc. and the Trust on behalf of the Prime Money Market
Fund.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
Every properly executed proxy will be voted in the manner specified hereon and,
in the absence of specification, will be treated as granting authority to vote
FOR the below-enumerated proposals.
The undersigned hereby acknowledges receipt of the Notice of Special Meeting
dated May 14, 2002 and the Proxy Statement attached hereto:
-----------------------------------------
Signature(s) of Shareholder(s)
-----------------------------------------
Signature(s) of Shareholder(s)
Date: _________________________, 2002
IMPORTANT: Please sign legibly and exactly as the name
appears on this card. Joint owners must EACH sign the proxy.
When signing as executor, administrator, attorney, Trustee or
guardian, or as custodian for a minor, please give the FULL
title of such. If a corporation, please give the FULL
corporate name and indicate the signer's office. If a
partner, please sign in the partnership name.
1
*** IF VOTING BY MAIL, PLEASE MARK, SIGN, DATE AND RETURN THE
PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE ***
OR
TO VOTE BY TELEPHONE
1. Read the enclosed Proxy Statement and have your Proxy Card* at hand.
2. Call [1-800-690-6903].
3. Enter the 12-digit Control Number found on your Proxy Card.
4. Cast your vote using the easy-to-follow instructions.
TO VOTE BY MAIL
1. Read the Proxy Statement.
2. Check the appropriate boxes on the proxy card below.
3. Sign and date the proxy card.
4. Return the proxy card in the envelope provided.
* DO NOT MAIL THE PROXY CARD IF VOTING BY TELEPHONE.
2
EUREKA INVESTMENT GRADE BOND FUND
PROXY FOR A MEETING OF
SHAREHOLDERS ON JUNE 27, 2002
THIS PROXY IS SOLICITED BY THE BOARD OF TRUSTEES OF EUREKA FUNDS (the "Trust")
for use at a Special Meeting of Shareholders of the Investment Grade Bond Fund
("Meeting") to be held on June 27, 2002 at 10:00 a.m. Eastern Time at 60 State
Street, Suite 1300, Boston, MA 02109.
The undersigned hereby appoints Gregory T. Maddox and Martin R. Dean, each of
them with full power of substitution as proxies of the undersigned, to vote, as
designated below, at the above-stated Meeting and at any and all adjournments
thereof, all Shares in Eureka Funds held of record by the undersigned on the
record date for the Meeting, upon the following matter and upon any other matter
which may come before the Meeting in their discretion.
PROPOSAL (1) Approval of a new Investment Advisory Agreement between Eureka
Investment Advisors, Inc. and the Trust on behalf of the Investment Grade Bond
Fund.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
Every properly executed proxy will be voted in the manner specified hereon and,
in the absence of specification, will be treated as granting authority to vote
FOR the below-enumerated proposals.
The undersigned hereby acknowledges receipt of the Notice of Special Meeting
dated May 14, 2002 and the Proxy Statement attached hereto:
-----------------------------------------
Signature(s) of Shareholder(s)
-----------------------------------------
Signature(s) of Shareholder(s)
Date: _________________________, 2002
IMPORTANT: Please sign legibly and exactly as the name
appears on this card. Joint owners must EACH sign the proxy.
When signing as executor, administrator, attorney, Trustee or
guardian, or as custodian for a minor, please give the FULL
title of such. If a corporation, please give the FULL
corporate name and indicate the signer's office. If a
partner, please sign in the partnership name.
1
*** IF VOTING BY MAIL, PLEASE MARK, SIGN, DATE AND RETURN THE
PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE ***
OR
TO VOTE BY TELEPHONE
1. Read the enclosed Proxy Statement and have your Proxy Card* at hand.
2. Call [1-800-690-6903].
3. Enter the 12-digit Control Number found on your Proxy Card.
4. Cast your vote using the easy-to-follow instructions.
TO VOTE BY MAIL
1. Read the Proxy Statement.
2. Check the appropriate boxes on the proxy card below.
3. Sign and date the proxy card.
4. Return the proxy card in the envelope provided.
* DO NOT MAIL THE PROXY CARD IF VOTING BY TELEPHONE.
2
EUREKA EQUITY FUND
PROXY FOR A MEETING OF
SHAREHOLDERS ON JUNE 27, 2002
THIS PROXY IS SOLICITED BY THE BOARD OF TRUSTEES OF EUREKA FUNDS (the "Trust")
for use at a Special Meeting of Shareholders of the Equity Fund ("Meeting") to
be held on June 27, 2002 at 10:00 a.m. Eastern Time at 60 State Street, Suite
1300, Boston, MA 02109.
The undersigned hereby appoints Gregory T. Maddox and Martin R. Dean, each of
them with full power of substitution as proxies of the undersigned, to vote, as
designated below, at the above-stated Meeting and at any and all adjournments
thereof, all Shares in Eureka Funds held of record by the undersigned on the
record date for the Meeting, upon the following matter and upon any other matter
which may come before the Meeting in their discretion.
PROPOSAL (1) Approval of a new Investment Advisory Agreement between Eureka
Investment Advisors, Inc. and the Trust on behalf of the Equity Fund.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
Every properly executed proxy will be voted in the manner specified hereon and,
in the absence of specification, will be treated as granting authority to vote
FOR the below-enumerated proposals.
The undersigned hereby acknowledges receipt of the Notice of Special Meeting
dated May 14, 2002 and the Proxy Statement attached hereto:
-----------------------------------------
Signature(s) of Shareholder(s)
-----------------------------------------
Signature(s) of Shareholder(s)
Date: _________________________, 2002
IMPORTANT: Please sign legibly and exactly as the name
appears on this card. Joint owners must EACH sign the proxy.
When signing as executor, administrator, attorney, Trustee or
guardian, or as custodian for a minor, please give the FULL
title of such. If a corporation, please give the FULL
corporate name and indicate the signer's office. If a
partner, please sign in the partnership name.
1
*** IF VOTING BY MAIL, PLEASE MARK, SIGN, DATE AND RETURN THE
PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE ***
OR
TO VOTE BY TELEPHONE
1. Read the enclosed Proxy Statement and have your Proxy Card* at hand.
2. Call [1-800-690-6903].
3. Enter the 12-digit Control Number found on your Proxy Card.
4. Cast your vote using the easy-to-follow instructions.
TO VOTE BY MAIL
1. Read the Proxy Statement.
2. Check the appropriate boxes on the proxy card below.
3. Sign and date the proxy card.
4. Return the proxy card in the envelope provided.
* DO NOT MAIL THE PROXY CARD IF VOTING BY TELEPHONE.
2