INDEX TO EXHIBITS
(1) Agreement and Declaration of Trust .
(2) Bylaws
(3) Inapplicable
(4) Inapplicable
(5) Form of Investment Advisory Agreement
(6) Inapplicable
(7) Inapplicable
(8) Form of Custody Agreement
(9)(i) Form of Administrative Services Agreement
(9)(ii) Form of Accounting Services Agreement
(9)(iii) Form of Transfer, Dividend Disbursing, Shareholder
Service and Plan Agency Agreement
(10) Opinion and Consent of Counsel*
(11) Consent of Independent Public Accountants*
(12) Inapplicable
(13) Form of Agreement Relating to Initial Capital
(14) Inapplicable
(15) Inapplicable
(16) Inapplicable
(17) Financial Data Schedule*
(18) Inapplicable
____________________________
* To be filed by Amendment.
PAGE
PRAGMA INVESTMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
January 4, 1996
PAGE
PRAGMA INVESTMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
PAGE
ARTICLE I. NAME AND DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) "Trust" . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) "Trustees". . . . . . . . . . . . . . . . . . . . . . . . 1
(c) "Shares". . . . . . . . . . . . . . . . . . . . . . . . . 1
(d) "Series". . . . . . . . . . . . . . . . . . . . . . . . . 1
(e) "Shareholder" . . . . . . . . . . . . . . . . . . . . . . 2
(f) "1940 Act". . . . . . . . . . . . . . . . . . . . . . . . 2
(g) "Commission". . . . . . . . . . . . . . . . . . . . . . . 2
(h) "Declaration of Trust". . . . . . . . . . . . . . . . . . 2
(i) "Bylaws". . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II. PURPOSE OF TRUST . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III. THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 3.1 Number, Designation, Election, Term, etc . . . . . . . . . . . 2
(a) Initial Trustees. . . . . . . . . . . . . . . . . . . . . 2
(b) Number. . . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) Term. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(d) Resignation and Retirement. . . . . . . . . . . . . . . . 3
(e) Removal . . . . . . . . . . . . . . . . . . . . . . . . . 3
(f) Vacancies . . . . . . . . . . . . . . . . . . . . . . . . 3
(g) Effect of Death, Resignation, etc . . . . . . . . . . . . 4
(h) No Accounting . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.2 Powers of the Trustees . . . . . . . . . . . . . . . . . . . . 4
(a) Investments . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Disposition of Assets . . . . . . . . . . . . . . . . . . 5
(c) Ownership Powers. . . . . . . . . . . . . . . . . . . . . 5
(d) Subscription. . . . . . . . . . . . . . . . . . . . . . . 5
(e) Form of Holding . . . . . . . . . . . . . . . . . . . . . 6
(f) Reorganization, etc.. . . . . . . . . . . . . . . . . . . 6
(g) Voting Trusts, etc. . . . . . . . . . . . . . . . . . . . 6
(h) Compromise. . . . . . . . . . . . . . . . . . . . . . . . 6
(i) Partnerships, etc.. . . . . . . . . . . . . . . . . . . . 6
- i -
(j) Borrowing and Security. . . . . . . . . . . . . . . . . . 6
(k) Guarantees, etc . . . . . . . . . . . . . . . . . . . . . 6
(l) Insurance . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.3 Certain Contracts. . . . . . . . . . . . . . . . . . . . . . . 7
(a) Advisory. . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Administration. . . . . . . . . . . . . . . . . . . . . . 8
(c) Distribution. . . . . . . . . . . . . . . . . . . . . . . 8
(d) Custodian and Depository. . . . . . . . . . . . . . . . . 8
(e) Transfer and Dividend Disbursing Agency . . . . . . . . . 8
(f) Shareholder Servicing . . . . . . . . . . . . . . . . . . 8
(g) Legal, Accounting, Taxes and Other . . . . . . . . . . . 8
Section 3.4 Payment of Trust Expenses and Compensation
of Trustees. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.5 Ownership of Assets of the Trust . . . . . . . . . . . . . . .10
ARTICLE IV. SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 4.1 Description of Shares. . . . . . . . . . . . . . . . . . . . .11
Section 4.2 Establishment and Designation of Series. . . . . . . . . . . .13
(a) Assets Belonging to Series. . . . . . . . . . . . . . . .13
(b) Liabilities Belonging to Series . . . . . . . . . . . . .14
(c) Dividends . . . . . . . . . . . . . . . . . . . . . . . .14
(d) Liquidation . . . . . . . . . . . . . . . . . . . . . . .15
(e) Voting. . . . . . . . . . . . . . . . . . . . . . . . . .15
(f) Redemption by Shareholder . . . . . . . . . . . . . . . .16
(g) Redemption by Trust . . . . . . . . . . . . . . . . . . .16
(h) Net Asset Value . . . . . . . . . . . . . . . . . . . . .17
(i) Transfer. . . . . . . . . . . . . . . . . . . . . . . . .17
(j) Equality. . . . . . . . . . . . . . . . . . . . . . . . .17
(k) Fractions . . . . . . . . . . . . . . . . . . . . . . . .17
(l) Conversion Rights . . . . . . . . . . . . . . . . . . . .18
Section 4.3 Ownership of Shares. . . . . . . . . . . . . . . . . . . . . .18
Section 4.4 Investments in the Trust . . . . . . . . . . . . . . . . . . .18
Section 4.5 No Preemptive Rights . . . . . . . . . . . . . . . . . . . . .18
Section 4.6 Status of Shares and Limitation of Personal
Liability. . . . . . . . . . . . . . . . . . . . . . . . . . .18
- ii -
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS . . . . . . . . . . .19
Section 5.1 Voting Powers. . . . . . . . . . . . . . . . . . . . . . . . .19
Section 5.2 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 5.3 Record Dates . . . . . . . . . . . . . . . . . . . . . . . . .20
Section 5.4 Quorum and Required Vote . . . . . . . . . . . . . . . . . . .20
Section 5.5 Action by Written Consent. . . . . . . . . . . . . . . . . . .21
Section 5.6 Inspection of Records. . . . . . . . . . . . . . . . . . . . .21
Section 5.7 Additional Provisions. . . . . . . . . . . . . . . . . . . . .21
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION . . . . . . . . . . .21
Section 6.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice . . . . . . . . . . . . . . . . . . . . . . . .21
Section 6.2 Trustee's Good Faith Action; Expert Advice;
No Bond or Surety. . . . . . . . . . . . . . . . . . . . . . .22
Section 6.3 Indemnification of Shareholders. . . . . . . . . . . . . . . .22
Section 6.4 Indemnification of Trustees, Officers, etc . . . . . . . . . .23
Section 6.5 Advances of Expenses . . . . . . . . . . . . . . . . . . . . .23
Section 6.6 Indemnification Not Exclusive, etc . . . . . . . . . . . . . .23
Section 6.7 Liability of Third Persons Dealing with
Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . .24
ARTICLE VII. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . .24
Section 7.1 Duration and Termination of Trust. . . . . . . . . . . . . . .24
Section 7.2 Reorganization . . . . . . . . . . . . . . . . . . . . . . . .24
Section 7.3 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . .25
Section 7.4 Filing of Copies; References; Headings . . . . . . . . . . . .25
Section 7.5 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . .26
- iii -
PRAGMA INVESTMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made this 4th day of January,
1996, by the Trustees hereunder, and by the holders of Shares of
beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH:
WHEREAS, this Trust is being formed to carry on the business of
an investment company; and
WHEREAS, the Trustees have agreed to manage all property coming
into their hands as trustees of an Ohio business trust in accordance
with the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold
all cash, securities and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and
dispose of the same upon the following terms and conditions for the
benefit of the holders from time to time of shares of beneficial
interest in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1 Name. This Trust shall be known as "PRAGMA
Investment Trust" and the Trustees shall conduct the business of the
Trust under that name or any other name as they may from time to time
determine.
Section 1.2 Definitions. Whenever used herein, unless
otherwise required by the context or specifically provided:
(a) The "Trust" refers to the Ohio business trust established by
this Agreement and Declaration of Trust, as amended from
time to time;
(b) "Trustees" refers to the Trustees of the Trust named herein
or elected in accordance with Article III;
(c) "Shares" refers to the transferable units of interest into
which the beneficial interest in the Trust or any Series of
the Trust (as the context may require) shall be divided from
time to time;
(d) "Series" refers to Series of Shares established and
designated under or in accordance with the provisions of
Article IV;
(e) "Shareholder" means a record owner of Shares;
(f) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended
from time to time;
(g) "Commission" shall have the meaning given it in the 1940
Act;
(h) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust as amended or restated from time to
time; and
(i) "Bylaws" shall mean the Bylaws of the Trust as amended from
time to time.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company,
to offer Shareholders one or more investment programs primarily in
securities and debt instruments and to engage in any and all lawful
acts or activities for which business trusts may be formed under
Chapter 1746.01 through 1746.99 of the Ohio Revised Code. Until the
Trustees determine otherwise, the principal office of the Trust is to
be located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
ARTICLE III
THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc.
(a) Initial Trustees. Upon execution of this Declaration of
Trust or a counterpart hereof or some other writing in which
he accepts such Trusteeship and agrees to the provisions
hereof, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇. ▇▇▇▇▇, III shall
become Trustees hereof.
(b) Number. The Trustees serving as such, whether named above
or hereafter becoming a Trustee, may increase or decrease
the number of Trustees to a number other than the number
theretofore determined. No decrease in the number of
Trustees shall have the effect of removing any Trustee from
office prior to the expiration of his term, but the number
of Trustees may be decreased in conjunction with the removal
of a Trustee pursuant to subsection (e) of this Section 3.1.
(c) Term. Each Trustee shall serve as a Trustee during the
lifetime of the Trust and until its termination as
hereinafter provided or until such Trustee sooner dies,
resigns, retires or is removed. The Trustees may elect
their own successors and may, pursuant to Section 3.1(f)
hereof, appoint Trustees to fill vacancies; provided that,
immediately after filling a vacancy, at least two-thirds of
the Trustees then holding office shall have been elected to
such office by the Shareholders at an annual or special
meeting. If at any time less than a majority of the
Trustees then holding office were so elected, the Trustees
shall forthwith cause to be held as promptly as possible,
and in any event within 60 days, a meeting of Shareholders
for the purpose of electing Trustees to fill any existing
vacancies.
(d) Resignation and Retirement. Any Trustee may resign his
trust or retire as a Trustee, by written instrument signed
by him and delivered to the other Trustees or to any officer
of the Trust, and such resignation or retirement shall take
effect upon such delivery or upon such later date as is
specified in such instrument.
(e) Removal. Any Trustee may be removed with or without cause
at any time: (i) by written instrument, signed by at least
two-thirds of the number of Trustees prior to such removal,
specifying the date upon which such removal shall become
effective, (ii) by vote of the Shareholders holding not less
than two-thirds of the Shares then outstanding, cast in
person or by proxy at any meeting called for the purpose, or
(iii) by a declaration in writing signed by Shareholders
holding not less than two-thirds of the Shares then
outstanding and filed with the Trust's Custodian.
(f) Vacancies. Any vacancy or anticipated vacancy resulting
from any reason, including without limitation, the death,
resignation, retirement, removal or incapacity of any of the
Trustees or resulting from an increase in the number of
Trustees by the Trustees, may (but so long as there are at
least three remaining Trustees, need not unless required by
the ▇▇▇▇ ▇▇▇) be filled either by a majority of the
remaining Trustees through the appointment in writing of
such other person as such remaining Trustees in their
discretion shall determine (unless a shareholder election is
required by the ▇▇▇▇ ▇▇▇) or by the election by the
Shareholders, at a meeting called for the purpose, of a
person to fill such vacancy, and such appointment or
election shall be effective upon the written acceptance of
the person named therein to serve as a Trustee and agreement
by such person to be bound by the provisions of this
Declaration of Trust, except that any such appointment or
election in anticipation of a vacancy to occur by reason of
retirement, resignation, or increase in number of Trustees
to be effective at a later date shall become effective only
at or after the effective date of said retirement,
resignation, or increase in number of Trustees. As soon as
any Trustee so appointed or elected shall have accepted such
appointment or election and shall have agreed in writing to
be bound by this Declaration of Trust and the appointment or
election is effective, the Trust estate shall vest in the
new Trustee, together with the continuing Trustees, without
any further act or conveyance.
(g) Effect of Death, Resignation, etc. The death, resignation,
retirement, removal, or incapacity of the Trustees, or any
one of them, shall not operate to annul or terminate the
Trust or to revoke or terminate any existing agency or
contract created or entered into pursuant to the terms of
this Declaration of Trust.
(h) No Accounting. Except to the extent required by the 1940
Act or under circumstances which would justify his removal
for cause, no person ceasing to be a Trustee as a result of
his death, resignation, retirement, removal or incapacity
(nor the estate of any such person) shall be required to
make an accounting to the Shareholders or remaining Trustees
upon such cessation.
Section 3.2 Powers of the Trustees. Subject to the provisions
of this Declaration of Trust, the business of the Trust shall be
managed by the Trustees, and they shall have all powers necessary or
convenient to carry out that responsibility and the purpose of the
Trust. Without limiting the foregoing, the Trustees may adopt Bylaws
not inconsistent with this Declaration of Trust providing for the
conduct of the business and affairs of the Trust and may amend and
repeal them to the extent that such Bylaws do not reserve that right
to the Shareholders; they may as they consider appropriate elect and
remove officers and appoint and terminate agents and consultants and
hire and terminate employees, any one or more of the foregoing of whom
may be a Trustee, and may provide for the compensation of all of the
foregoing; they may appoint from their own number, and terminate, any
one or more committees consisting of two or more Trustees, including
without implied limitation an executive committee, which may, when the
Trustees are not in session and subject to the 1940 Act, exercise some
or all of the power and authority of the Trustees as the Trustees may
determine; in accordance with Section 3.3 they may employ one or more
advisers, administrators, depositories and custodians and may
authorize any depository or custodian to employ subcustodians or
agents and to deposit all or any part of such assets in a system or
systems for the central handling of securities and debt instruments,
retain transfer, dividend, accounting or Shareholder servicing agents
or any of the foregoing, provide for the distribution of Shares by the
Trust through one or more distributors, principal underwriters or
otherwise, set record dates or times for the determination of
Shareholders or various of them with respect to various matters; they
may compensate or provide for the compensation of the Trustees,
officers, advisers, administrators, custodians, other agents,
consultants and employees of the Trust or the Trustees on such terms
as they deem appropriate; and in general they may delegate to any
officer of the Trust, to any committee of the Trustees and to any
employee, adviser, administrator, distributor, principal underwriter,
depository, custodian, transfer and dividend disbursing agent, or any
other agent or consultant of the Trust such authority, powers,
functions and duties as they consider desirable or appropriate for the
conduct of the business and affairs of the Trust, including without
implied limitation the power and authority to act in the name of the
Trust and of the Trustees, to sign documents and to act as attorney-
in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent
with the 1940 Act or other applicable law, the Trustees shall have
power and authority:
(a) Investments. To invest and reinvest cash and other
property, and to hold cash or other property uninvested
without in any event being bound or limited by any present
or future law or custom in regard to investments by
trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all
of the assets of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise any
rights of ownership, with respect to stock or other
securities, debt instruments or property; and to execute and
deliver proxies or powers of attorney to such person or
persons as the Trustees shall deem proper, granting to such
person or persons such power and discretion with relation to
securities, debt instruments or property as the Trustees
shall deem proper;
(d) Subscription. To exercise powers and rights of subscription
or otherwise which in any manner arise out of ownership of
securities or debt instruments;
(e) Form of Holding. To hold any security, debt instrument or
property in a form not indicating any trust, whether in
bearer, unregistered or other negotiable form, or in the
name of the Trustees or of the Trust or in the name of a
custodian, subcustodian or other depository or a nominee or
nominees or otherwise;
(f) Reorganization, etc. To consent to or participate in any
plan for the reorganization, consolidation or merger of any
corporation or issuer, any security or debt instrument of
which is or was held in the Trust; to consent to any
contract, lease, mortgage, purchase or sale of property by
such corporation or issuer, and to pay calls or
subscriptions with respect to any security or debt
instrument held in the Trust;
(g) Voting Trusts, etc. To join with other holders of any
securities or debt instruments in acting through a
committee, depository, voting trustee or otherwise, and in
that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any
such committee, depository or trustee, and to delegate to
them such power and authority with relation to any security
or debt instrument (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree
to pay, and to pay, such portion of the expenses and
compensation of such committee, depository or trustee as the
Trustees shall deem proper;
(h) Compromise. To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust or any matter in
controversy, including but not limited to claims for taxes;
(i) Partnerships, etc. To enter into joint ventures, general or
limited partnerships and any other combinations or
associations;
(j) Borrowing and Security. To borrow funds and to mortgage and
pledge the assets of the Trust or any part thereof to secure
obligations arising in connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment of any
notes or other obligations of any person; to make contracts
of guaranty or suretyship, or otherwise assume liability for
payment thereof; and to mortgage and pledge the Trust
property or any part thereof to secure any of or all such
obligations; and
(l) Insurance. To purchase and pay for entirely out of Trust
property such insurance as they may deem necessary or
appropriate for the conduct of the business, including,
without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on
its portfolio investments, and insurance policies insuring
the Shareholders, Trustees, officers, employees, agents,
consultants, investment advisers, managers, administrators,
distributors, principal underwriters, or independent
contractors, or any thereof (or any person connected
therewith), of the Trust individually against all claims and
liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted
by any such person in any such capacity, including any
action taken or omitted that may be determined to constitute
negligence; provided, however, that insurance which protects
the Trustees and officers against liabilities rising from
action involving willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in
the conduct of their offices may not be purchased;
Except as otherwise provided by the 1940 Act or other applicable
law, this Declaration of Trust or the Bylaws, any action to be taken
by the Trustees may be taken by a majority of the Trustees present at
a meeting of Trustees (a quorum, consisting of at least a majority of
the Trustees then in office, being present), within or without Ohio,
including any meeting held by means of a conference telephone or other
communications equipment by means of which all persons participating
in the meeting can hear each other at the same time and participation
by such means shall constitute presence in person at a meeting, or by
written consents of a majority of the Trustees then in office (or such
larger or different number as may be required by the 1940 Act or other
applicable law).
Section 3.3 Certain Contracts. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of
present and future law or custom in regard to delegation of powers by
trustees generally, the Trustees may, at any time and from time to
time and without limiting the generality of their powers and authority
otherwise set forth herein, enter into one or more contracts with any
one or more corporations, trusts, associations, partnerships, limited
partnerships, other type of organizations, or individuals
("Contracting Party") to provide for the performance and assumption of
some or all of the following services, duties and responsibilities to,
for or of the Trust and/or the Trustees, and to provide for the
performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees
may determine appropriate:
PAGE
(a) Advisory. Subject to the general supervision of the
Trustees and in conformity with the stated policy of the
Trustees with respect to the investments of the Trust or of
the assets belonging to any Series of Shares of the Trust
(as that phrase is defined in subsection (a) of Section
4.2), to manage such investments and assets, make investment
decisions with respect thereto, and to place purchase and
sale orders for portfolio transactions relating to such
investments and assets;
(b) Administration. Subject to the general supervision of the
Trustees and in conformity with any policies of the Trustees
with respect to the operations of the Trust, to supervise
all or any part of the operations of the Trust, and to
provide all or any part of the administrative and clerical
personnel, office space and office equipment and services
appropriate for the efficient administration and operations
of the Trust;
(c) Distribution. To distribute the Shares of the Trust, to be
principal underwriter of such Shares, and/or to act as agent
of the Trust in the sale of Shares and the acceptance or
rejection of orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to
maintain custody of the property of the Trust and accounting
records in connection therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain
records of the ownership of outstanding Shares, the issuance
and redemption and the transfer thereof, and to disburse any
dividends declared by the Trustees and in accordance with
the policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing. To provide service with respect to
the relationship of the Trust and its Shareholders, records
with respect to Shareholders and their Shares, and similar
matters; and
(g) Legal, Accounting, Taxes and Other. To handle all or any
part of the legal, accounting, tax or other
responsibilities, whether with respect to the Trust's
properties, Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust and/or
the Trustees, and the contracts with respect thereto may contain such
terms interpretive of or in addition to the delineation of the
services, duties and responsibilities provided for, including
provisions that are not inconsistent with the 1940 Act relating to the
standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing
herein shall preclude, prevent or limit the Trust or a Contracting
Party from entering into subcontractual arrangements relative to any
of the matters referred to in Sections 3.3(a) through (g) hereof.
Subject to the provisions of the 1940 Act, the fact that:
(i) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, manager, adviser, principal underwriter or distributor
or agent of or for any Contracting Party, or of or for any parent
or affiliate of any Contracting Party or that the Contracting
Party or any parent or affiliate thereof is a Shareholder or has
an interest in the Trust, or that
(ii) any Contracting Party may have a contract providing for
the rendering of any similar services to one or more other
corporations, trusts, associations, partnerships, limited
partnerships or other organizations, or has other business or
interests,
shall not affect the validity of any contract for the performance and
assumption of services, duties and responsibilities to, for or of the
Trust and/or the Trustees or disqualify any Shareholder, Trustee or
officer of the Trust from voting upon or executing the same or create
any liability or accountability to the Trust or its Shareholders,
provided that in the case of any relationship or interest referred to
in the preceding clause (i) on the part of any Trustee or officer of
the Trust either (1) the material facts as to such relationship or
interest have been disclosed to or are known by the Trustees not
having any such relationship or interest and the contract involved is
approved in good faith reasonably justified by such facts by a
majority of such Trustees not having any such relationship or interest
(even though such unrelated or disinterested Trustees are less than a
quorum of all of the Trustees), or (2) the specific contract involved
is fair to the Trust as of the time it is authorized, approved or
ratified by the Trustees or by the Shareholders.
Section 3.4 Payment of Trust Expenses and Compensation of
Trustees. The Trustees are authorized to pay or to cause to be paid
out of the principal or income of the Trust, or partly out of
principal and partly out of income, and to charge or allocate the same
to, between or among such one or more of the Series that may be
established and designated pursuant to Article IV, as the Trustees
deem fair, all expenses, fees, charges, taxes and liabilities incurred
or arising in connection with the Trust, or in connection with the
management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser, administrator,
distributor, principal underwriter, auditor, counsel, depository,
custodian, transfer agent, dividend disbursing agent, accounting
agent, Shareholder servicing agent, and such other agents,
consultants, and independent contractors and such other expenses and
charges as the Trustees may deem necessary or proper to incur.
Without limiting the generality of any other provision hereof, the
Trustees shall be entitled to reasonable compensation from the Trust
for their services as Trustees and may fix the amount of such
compensation.
Section 3.5 Ownership of Assets of the Trust. Title to all of
the assets of the Trust shall at all times be considered as vested in
the Trustees.
ARTICLE IV
SHARES
Section 4.1 Description of Shares. The beneficial interest in
the Trust shall be divided into Shares, all without par value, but the
Trustees shall have the authority from time to time to divide the
Shares into two or more Series of Shares, as they deem necessary or
desirable, to establish and designate such Series, and to fix and
determine the relative rights and preferences as between the different
Series of Shares as to right of redemption and the price, terms and
manner of redemption, special and relative rights as to dividends and
other distributions and on liquidation, sinking or purchase fund
provisions, conversion rights, and conditions under which the several
Series shall have separate voting rights or no voting rights. Except
as aforesaid all Shares of the different Series shall be identical.
The Shares of each Series may be issued or reissued from time to
time in one or more classes ("Classes"), as determined by the Board of
Trustees pursuant to resolution. Each Class shall be appropriately
designated, prior to the issuance of any shares thereof, by some
distinguishing letter, number or title. All Shares within a Class
shall be alike in every particular. All Shares of each Series shall
be of equal rank and have the same powers, preferences and rights, and
shall be subject to the same qualifications, limitations and
restrictions without distinction between the shares of different
Classes thereof, except with respect to such differences among such
Classes, as the Board of Trustees shall from time to time determine to
be necessary or desirable, including differences in the rate or rates
of dividends or distributions. The Board of Trustees may from time to
time increase the number of Shares allocated to any Class already
created by providing that any unissued Shares of the applicable Series
shall constitute part of such Class, or may decrease the number of
Shares allocated to any Class already created by providing that any
unissued Shares previously assigned to such Class shall no longer
constitute part thereof. The Board of Trustees is hereby empowered to
classify or reclassify from time to time any unissued Shares of each
Series by fixing or altering the terms thereof and by assigning such
unissued shares to an existing or newly created Class.
Notwithstanding anything to the contrary in this paragraph the Board
of Trustees is hereby empowered (i) to redesignate any issued Shares
of any Series by assigning a distinguishing letter, number or title to
such shares and (ii) to reclassify all or any part of the issued
Shares of any Series to make them part of an existing or newly created
Class.
PAGE
The number of authorized Shares and the number of Shares of each
Series that may be issued is unlimited, and the Trustees may issue
Shares of any Series for such consideration and on such terms as they
may determine (or for no consideration if pursuant to a Share dividend
or split-up), all without action or approval of the Shareholders. All
Shares when so issued on the terms determined by the Trustees shall be
fully paid and non-assessable (but may be subject to mandatory
contribution back to the Trust as provided in subsection (g) of
Section 4.2). The Trustees may classify or reclassify any unissued
Shares or any Shares previously issued and reacquired of any Series
into one or more Series that may be established and designated from
time to time. The Trustees may hold as treasury Shares (of the same
or some other Series), reissue for such consideration and on such
terms as they may determine, or cancel, at their discretion from time
to time, any Shares of any Series reacquired by the Trust.
The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the
holders of Shares entitled to be treated as such, to the extent
provided or referred to in Section 5.3.
The establishment and designation of any Series of Shares in
addition to that established and designated in Section 4.2, or of any
Class of Shares, shall be effective upon the execution by a majority
of the then Trustees of an instrument setting forth such establishment
and designation and the relative rights and preferences of such Series
or Class, or as otherwise provided in such instrument. At any time
that there are no Shares outstanding of any particular Series or Class
previously established and designated the Trustees may by an
instrument executed by a majority of their number abolish that Series
or Class and the establishment and designation thereof. Each
instrument referred to in this paragraph shall have the status of an
amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any
organization in which any such person is interested may acquire, own,
hold and dispose of Shares of any Series of the Trust to the same
extent as if such person were not a Trustee, officer or other agent of
the Trust; and the Trust may issue and sell or cause to be issued and
sold and may purchase Shares of any Series from any such person or any
such organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or purchase of
Shares of such Series generally.
Section 4.2 Establishment and Designation of Series. Without
limiting the authority of the Trustees set forth in Section 4.1 to
establish and designate any further Series, the Trustees hereby
establish and designate one Series of Shares: " Fund". The
Shares of this Series and any Shares of any further Series that may
from time to time be established and designated by the Trustees shall
(unless the Trustees otherwise determine with respect to some further
Series or Class at the time of establishing and designating the same)
have the following relative rights and preferences:
(a) Assets Belonging to Series. All consideration received by
the Trust for the issue or sale of Shares of a particular
Series, together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits,
and proceeds thereof, including any proceeds derived from
the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably
belong to that Series for all purposes, subject only to the
rights of creditors, and shall be so recorded upon the books
of account of the Trust. Such consideration, assets,
income, earnings, profits and proceeds thereof, including
any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may
be, together with any General Items allocated to that Series
as provided in the following sentence, are herein referred
to as "assets belonging to" that Series. In the event that
there are any assets, incomes, earnings, profits, and
proceeds thereof, funds, or payments which are not readily
identifiable as belonging to any particular Series
(collectively "General Items"), the Trustees shall allocate
such General Items to and among any one or more of the
Series established and designated from time to time in such
manner and on such basis as they, in their sole discretion,
deem fair and equitable; and any General Items so allocated
to a particular Series shall belong to that Series. Each
such allocation by the Trustees shall be conclusive and
binding upon the Shareholders of all Series for all
purposes.
The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items
shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive
and binding upon the Shareholders.
(b) Liabilities Belonging to Series. The assets belonging to
each particular Series shall be charged with the liabilities
of the Trust in respect of that Series and all expenses,
costs, charges and reserves attributable to that Series, and
any general liabilities, expenses, costs, charges or
reserves of the Trust which are not readily identifiable as
belonging to any particular Series shall be allocated and
charged by the Trustees to and among any one or more of the
Series established and designated from time to time in such
manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. The liabilities,
expenses, costs, charges and reserves allocated and so
charged to a Series are herein referred to as "liabilities
belonging to" that Series. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall
be conclusive and binding upon the holders of all Series for
all purposes.
(c) Dividends. Dividends and distributions on Shares of a
particular Series may be paid with such frequency as the
Trustees may determine, which may be daily or otherwise
pursuant to a standing resolution or resolutions adopted
only once or with such frequency as the Trustees may
determine, to the holders of Shares of that Series, from
such of the estimated income and capital gains, accrued or
realized, from the assets belonging to that Series, as the
Trustees may determine, after providing for actual and
accrued liabilities belonging to that Series. All dividends
and distributions on Shares of a particular Series shall be
distributed pro rata to the holders of that Series in
proportion to the number of Shares of that Series held by
such holders at the date and time of record established for
the payment of such dividends or distributions, except that
in connection with any dividend or distribution program or
procedure the Trustees may determine that no dividend or
distribution shall be payable on Shares as to which the
Shareholder's purchase order and/or payment have not been
received by the time or times established by the Trustees
under such program or procedure, and except that if Classes
have been established for any Series, the rate of dividends
or distributions may vary among such Classes pursuant to
resolution, which may be a standing resolution, of the Board
of Trustees. Such dividends and distributions may be made
in cash or Shares or a combination thereof as determined by
the Trustees or pursuant to any program that the Trustees
may have in effect at the time for the election by each
Shareholder of the mode of the making of such dividend or
distribution to that Shareholder. Any such dividend or
distribution paid in Shares will be paid at the net asset
value thereof as determined in accordance with subsection
(h) of Section 4.2.
The Trust intends to qualify each Series as a "regulated
investment company" under the Internal Revenue Code of 1986,
as amended, or any successor or comparable statute thereto,
and regulations promulgated thereunder. Inasmuch as the
computation of net income and gains for federal income tax
purposes may vary from the computation thereof on the books
of the Trust, the Board of Trustees shall have the power, in
its sole discretion, to distribute in any fiscal year as
dividends, including dividends designated in whole or in
part as capital gains distributions, amounts sufficient, in
the opinion of the Board of Trustees, to enable each Series
to qualify as a regulated investment company and to avoid
liability of the Series for federal income tax in respect of
that year. However, nothing in the foregoing shall limit
the authority of the Board of Trustees to make distributions
greater than or less than the amount necessary to qualify as
a regulated investment company and to avoid liability of
each Series for such tax.
PAGE
(d) Liquidation. In event of the liquidation or dissolution of
the Trust, the Shareholders of each Series that has been
established and designated shall be entitled to receive, as
a Series, when and as declared by the Trustees, the excess
of the assets belonging to that Series over the liabilities
belonging to that Series. The assets so distributable to
the Shareholders of any particular Series shall be
distributed among such Shareholders in proportion to the
number of Shares of that Series held by them and recorded on
the books of the Trust. The liquidation of any particular
Series may be authorized by vote of a majority of the
Trustees then in office subject to the approval of a
majority of the outstanding voting Shares of that Series, as
defined in the 1940 Act.
(e) Voting. All shares of all Series shall have "equal voting
rights" as such term is defined in the Investment Company
Act of 1940 and except as otherwise provided by that Act or
rules, regulations or orders promulgated thereunder. On
each matter submitted to a vote of the Shareholders, all
Shares of all Series shall vote as a single class ("Single
Class Voting"); provided, however, that (a) as to any matter
with respect to which a separate vote of any Series is
required by the 1940 Act or rules and regulations
promulgated thereunder, or would be required under the Ohio
General Corporation Law if the Trust were an Ohio
corporation, such requirements as to a separate vote by that
Series shall apply in lieu of Single Class Voting as
described above; (b) in the event that the separate vote
requirements referred to in (a) above apply with respect to
one or more Series, then, subject to (c) below, the Shares
of all other Series shall vote as a single class; and (c) as
to any matter which does not affect the interest of a
particular Series, only the holders of Shares of the one or
more affected Series shall be entitled to vote.
(f) Redemption by Shareholder. Each holder of Shares of a
particular Series shall have the right at such times as may
be permitted by the Trust, but no less frequently than once
each week, to require the Trust to redeem all or any part of
his Shares of that Series at a redemption price equal to the
net asset value per Share of that Series next determined in
accordance with subsection (h) of this Section 4.2 after the
Shares are properly tendered for redemption. Payment of the
redemption price shall be in cash; provided, however, that
if the Trustees determine, which determination shall be
conclusive, that conditions exist which make payment wholly
in cash unwise or undesirable, the Trust may make payment
wholly or partly in securities or other assets belonging to
the Series of which the Shares being redeemed are part at
the value of such securities or assets used in such
determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone
payment of the redemption price and may suspend the right of
the holders of Shares of any Series to require the Trust to
redeem Shares of that Series during any period or at any
time when and to the extent permissible under the 1940 Act,
and such redemption is conditioned upon the Trust having
funds or property legally available therefor.
(g) Redemption by Trust. Each Share of each Series that has
been established and designated is subject to redemption by
the Trust at the redemption price which would be applicable
if such Share was then being redeemed by the Shareholder
pursuant to subsection (f) of this Section 4.2: (a) at any
time, if the Trustees determine in their sole discretion
that failure to so redeem may have materially adverse
consequences to all or any of the holders of the Shares, or
any Series thereof, of the Trust, or (b) upon such other
conditions as may from time to time be determined by the
Trustees and set forth in the then current Prospectus of the
Trust with respect to maintenance of Shareholder accounts of
a minimum amount. Upon such redemption the holders of the
Shares so redeemed shall have no further right with respect
thereto other than to receive payment of such redemption
price.
(h) Net Asset Value. The net asset value per Share of any
Series shall be the quotient obtained by dividing the value
of the net assets of that Series (being the value of the
assets belonging to that Series less the liabilities
belonging to that Series) by the total number of Shares of
that Series outstanding, all determined in accordance with
the methods and procedures, including without limitation
those with respect to rounding, established by the Trustees
from time to time.
(i) Transfer. All Shares of each particular Series shall be
transferable, but transfers of Shares of a particular Series
will be recorded on the Share transfer records of the Trust
applicable to that Series only at such times as Shareholders
shall have the right to require the Trust to redeem Shares
of that Series and at such other times as may be permitted
by the Trustees.
(j) Equality. All Shares of each particular Series shall
represent an equal proportionate interest in the assets
belonging to that Series (subject to the liabilities
belonging to that Series), and each Share of any particular
Series shall be equal to each other Share of that Series;
but the provisions of this sentence shall not restrict any
distinctions permissible under subsection (c) of this
Section 4.2 that may exist with respect to dividends and
distributions on Shares of the same Series. The Trustees
may from time to time divide or combine the Shares of any
particular Series into a greater or lesser number of Shares
of that Series without thereby changing the proportionate
beneficial interest in the assets belonging to that Series
or in any way affecting the rights of Shares of any other
Series.
(k) Fractions. Any fractional Share of any Series or Class, if
any such fractional Share is outstanding, shall carry
proportionately all the rights and obligations of a whole
Share of that Series or Class, including with respect to
voting, receipt of dividends and distributions, redemption
of Shares, and liquidation of the Trust.
(l) Conversion Rights. Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the
authority to provide that holders of Shares of any Series
shall have the right to convert said Shares into Shares of
one or more other Series of Shares in accordance with such
requirements and procedures as may be established by the
Trustees.
Section 4.3 Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust or of a transfer or
similar agent for the Trust, which books shall be maintained
separately for the Shares of each Series that has been established and
designated. No certificates certifying the ownership of Shares need
be issued except as the Trustees may otherwise determine from time to
time. The Trustees may make such rules as they consider appropriate
for the issuance of Share certificates, the use of facsimile
signatures, the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or any transfer or similar
agent, as the case may be, shall be conclusive as to who are the
Shareholders and as to the number of Shares of each Series and Class
held from time to time by each such Shareholder.
Section 4.4 Investments in the Trust. The Trustees may accept
investments in the Trust from such persons and on such terms and for
such consideration, not inconsistent with the provisions of the 1940
Act, as they from time to time authorize. The Trustees may authorize
any distributor, principal underwriter, custodian, transfer agent or
other person to accept orders for the purchase of Shares that conform
to such authorized terms and to reject any purchase orders for Shares
whether or not conforming to such authorized terms.
Section 4.5 No Preemptive Rights. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust.
Section 4.6 Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property giving only
the rights provided in this instrument. Every Shareholder by virtue
of having become a Shareholder shall be held to have expressly
assented and agreed to the terms hereof and to have become a party
hereto. The death of a Shareholder during the continuance of the
Trust shall not operate to terminate the Trust nor entitle the
representative of any deceased Shareholder to an accounting or to take
any action in court or elsewhere against the Trust or the Trustees,
but only to the rights of said decedent under this Trust. Ownership
of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust property or right to call for a
partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners. Neither
the Trust nor the Trustees, nor any officer, employee or agent of the
Trust shall have any power to bind personally any Shareholder, nor
except as specifically provided herein to call upon any Shareholder
for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time personally agree to pay.
PAGE
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers. The Shareholders shall have power
to vote only (i) for the election or removal of Trustees as provided
in Section 3.1, (ii) with respect to any contract with a Contracting
Party as provided in Section 3.3 as to which Shareholder approval is
required by the 1940 Act, (iii) with respect to any termination or
reorganization of the Trust or any Series to the extent and as
provided in Sections 7.1 and 7.2, (iv) with respect to any amendment
of this Declaration of Trust to the extent and as provided in Section
7.3, (v) to the same extent as the stockholders of an Ohio business
corporation as to whether or not a court action, proceeding or claim
should or should not be brought or maintained derivatively or as a
class action on behalf of the Trust or the Shareholders, and (vi) with
respect to such additional matters relating to the Trust as may be
required by the 1940 Act, this Declaration of Trust, the Bylaws or any
registration of the Trust with the Commission (or any successor
agency) or any state, or as the Trustees may consider necessary or
desirable. There shall be no cumulative voting in the election of any
Trustee or Trustees. Shares may be voted in person or by proxy. A
proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to
exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A proxy purporting to be executed
by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger. Until Shares are issued, the
Trustees may exercise all rights of Shareholders and may take any
action required by law, this Declaration of Trust or the Bylaws to be
taken by Shareholders.
Section 5.2 Meetings. Meetings (including meetings involving
only the holders of Shares of one or more but less than all Series) of
Shareholders may be called by the Trustees from time to time for the
purpose of taking action upon any matter requiring the vote or
authority of the Shareholders as herein provided or upon any other
matter deemed by the Trustees to be necessary or desirable. Written
notice of any meeting of Shareholders shall be given or caused to be
given by the Trustees by mailing such notice at least seven days
before such meeting, postage prepaid, stating the time, place and
purpose of the meeting, to each Shareholder at the Shareholder's
address as it appears on the records of the Trust. The Trustees shall
promptly call and give notice of a meeting of Shareholders for the
purpose of voting upon removal of any Trustee of the Trust when
requested to do so in writing by Shareholders holding not less than
10% of the Shares then outstanding. If the Trustees shall fail to
call or give notice of any meeting of Shareholders (including a
meeting involving only the holders of Shares of one or more but less
than all Series) for a period of 30 days after written application by
Shareholders holding at least 25% of the Shares then outstanding
requesting a meeting be called for any other purpose requiring action
by the Shareholders as provided herein or in the Bylaws, then
Shareholders holding at least 25% of the Shares then outstanding may
call and give notice of such meeting, and thereupon the meeting shall
be held in the manner provided for herein in case of call thereof by
the Trustees.
PAGE
Section 5.3 Record Dates. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any
adjournment thereof, or who are entitled to participate in any
dividend or distribution, or for the purpose of any other action, the
Trustees may from time to time close the transfer books for such
period, not exceeding 30 days (except at or in connection with the
termination of the Trust), as the Trustees may determine; or without
closing the transfer books the Trustees may fix a date and time not
more than 60 days prior to the date of any meeting of Shareholders or
other action as the date and time of record for the determination of
Shareholders entitled to vote at such meeting or any adjournment
thereof or to be treated as Shareholders of record for purposes of
such other action, and any Shareholder who was a Shareholder at the
date and time so fixed shall be entitled to vote at such meeting or
any adjournment thereof or (subject to any provisions permissible
under subsection (c) of Section 4.2 with respect to dividends or
distributions on Shares that have not been ordered and/or paid for by
the time or times established by the Trustees under the applicable
dividend or distribution program or procedure then in effect) to be
treated as a Shareholder of record for purposes of such other action,
even though he has since that date and time disposed of his Shares,
and no Shareholder becoming such after that date and time shall be so
entitled to vote at such meeting or any adjournment thereof or to be
treated as a Shareholder of record for purposes of such other action.
Section 5.4 Quorum and Required Vote. A majority of the
Shares entitled to vote shall be a quorum for the transaction of
business at a Shareholders' meeting, but any lesser number shall be
sufficient for adjournments. Any adjourned session or sessions may be
held, within a reasonable time after the date set for the original
meeting without the necessity of further notice. A majority of the
Shares voted, at a meeting of which a quorum is present, shall decide
any questions and a plurality shall elect a Trustee, except when a
different vote is required or permitted by any provision of the 1940
Act or other applicable law or by this Declaration of Trust or the
Bylaws.
Section 5.5 Action by Written Consent. Subject to the
provisions of the 1940 Act and other applicable law, any action taken
by Shareholders may be taken without a meeting if a majority of
Shareholders entitled to vote on the matter (or such other proportion
thereof as shall be required by the 1940 Act or by any express
provision of this Declaration of Trust or the Bylaws) consent to the
action in writing and such written consents are filed with the records
of the meetings of Shareholders. Such consent shall be treated for
all purposes as a vote taken at a meeting of Shareholders.
Section 5.6 Inspection of Records. The records of the Trust
shall be open to inspection by Shareholders to the same extent as is
permitted stockholders of an Ohio corporation under the Ohio General
Corporation Law.
Section 5.7 Additional Provisions. The Bylaws may include
further provisions for Shareholders' votes and meetings and related
matters not inconsistent with the provisions hereof.
PAGE
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice. All persons extending credit to, contracting with or
having any claim against the Trust shall look only to the assets of
the Trust for payment under such credit, contract or claim; and
neither the Shareholders nor the Trustees, nor any of the Trust's
officers, employees or agents, whether past, present or future, shall
be personally liable therefor. Every note, bond, contract,
instrument, certificate or undertaking and every other act or thing
whatsoever executed or done by or on behalf of the Trust or the
Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only by or for the
Trust or the Trustees and not personally. Nothing in this Declaration
of Trust shall protect any Trustee or officer against any liability to
the Trust or the Shareholders to which such Trustee or officer would
otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee or of such officer.
Every note, bond, contract, instrument, certificate or
undertaking made or issued by the Trustees or by any officers or
officer shall give notice that this Declaration of Trust is on file
with the Secretary of the State of Ohio and shall recite to the effect
that the same was executed or made by or on behalf of the Trust or by
them as Trustees or Trustee or as officers or officer and not
individually and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually but are
binding only upon the assets and property of the Trust, but the
omission thereof shall not operate to bind any Trustees or Trustee or
officers or officer or Shareholders or Shareholder individually.
Section 6.2 Trustee's Good Faith Action; Expert Advice; No
Bond or Surety. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested. A
Trustee shall be liable for his own willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and for nothing else, and shall not
be liable for errors of judgment or mistakes of fact or law. Subject
to the foregoing, (a) the Trustees shall not be responsible or liable
in any event for any neglect or wrongdoing of any officer, agent,
employee, consultant, adviser, administrator, distributor or principal
underwriter, custodian or transfer, dividend disbursing, Shareholder
servicing or accounting agent of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee; (b) the
Trustees may take advice of counsel or other experts with respect to
the meaning and operation of this Declaration of Trust and their
duties as Trustees, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such
advice; and (c) in discharging their duties, the Trustees, when acting
in good faith, shall be entitled to rely upon the books of account of
the Trust and upon written reports made to the Trustees by any officer
appointed by them, any independent public accountant, and (with
respect to the subject matter of the contract involved) any officer,
partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 3.3. The Trustees as such shall not
be required to give any bond or surety or any other security for the
performance of their duties. Nothing stated herein is intended to
detract from the protection accorded to Trustees by Ohio Revised Code
Sections 1746.08 and 1701.59, as amended from time to time.
Section 6.3 Indemnification of Shareholders. In case any
Shareholder or former Shareholder shall be charged or held to be
personally liable for any obligation or liability of the Trust solely
by reason of being or having been a Shareholder and not because of
such Shareholder's acts or omissions or for some other reason, the
Trust (upon proper and timely request by the Shareholder) shall assume
the defense against such charge and satisfy any judgment thereon, and
the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives or in the case of a
corporation or other entity, its corporate or other general successor)
shall be entitled out of the assets of the Trust estate to be held
harmless from and indemnified against all loss and expense arising
from such liability.
Section 6.4 Indemnification of Trustees, Officers, etc.
Subject to and except as otherwise provided in the Securities Act of
1933, as amended, and the 1940 Act, the Trust shall indemnify each of
its Trustees and officers, including persons who serve at the Trust's
request as directors, officers or trustees of another organization in
which the Trust has any interest as a shareholder, creditor or
otherwise (hereinafter referred to as a "Covered Person") against all
liabilities, including but not limited to amounts paid in satisfaction
of judgments, in compromise or as fines and penalties, and expenses,
including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before
any court or administrative or legislative body, in which such Covered
Person may be or may have been involved as a party or otherwise or
with which such person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Trustee
or officer, director or trustee, and except that no Covered Person
shall be indemnified against any liability to the Trust or its
Shareholders to which such Covered Person would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such
Covered Person's office.
Section 6.5 Advances of Expenses. The Trust shall advance
attorneys' fees or other expenses incurred by a Covered Person in
defending a proceeding to the full extent permitted by the Securities
Act of 1933, as amended, the 1940 Act, and Ohio Revised Code Chapter
1707, as amended. In the event any of these laws conflict with Ohio
Revised Code Section 1701.13(E), as amended, these laws, and not Ohio
Revised Code Section 1701.13(E), shall govern.
Section 6.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VI shall not be exclusive of
or affect any other rights to which any such Covered Person may be
entitled. As used in this Article VI, "Covered Person" shall include
such person's heirs, executors and administrators. Nothing contained
in this article shall affect any rights to indemnification to which
personnel of the Trust, other than Trustees and officers, and other
persons may be entitled by contract or otherwise under law, nor the
power of the Trust to purchase and maintain liability insurance on
behalf of any such person.
Section 6.7 Liability of Third Persons Dealing with Trustees.
No person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Duration and Termination of Trust. Unless
terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by a
majority of the Trustees then in office subject to a favorable vote of
a majority of the outstanding voting Shares, as defined in the 1940
Act, of each Series voting separately by Series.
Upon termination, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due or accrued or
anticipated as may be determined by the Trustees, the Trust shall in
accordance with such procedures as the Trustees consider appropriate
reduce the remaining assets to distributable form in cash, securities
or other property, or any combination thereof, and distribute the
proceeds to the Shareholders, in conformity with the provisions of
subsection (d) of Section 4.2.
Section 7.2 Reorganization. The Trustees may sell, convey and
transfer the assets of the Trust, or the assets belonging to any one
or more Series, to another trust, partnership, association or
corporation organized under the laws of any state of the United
States, or to the Trust to be held as assets belonging to another
Series of the Trust, in exchange for cash, shares or other securities
(including, in the case of a transfer to another Series of the Trust,
Shares of such other Series) with such transfer being made subject to,
or with the assumption by the transferee of, the liabilities belonging
to each Series the assets of which are so transferred; provided,
however, that if shareholder approval is required by the 1940 Act, no
assets belonging to any particular Series shall be so transferred
unless the terms of such transfer shall have first been approved at a
meeting called for the purpose by the affirmative vote of the holders
of a majority of the outstanding voting Shares, as defined in the 1940
Act, of that Series. Following such transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect to
the assets and liabilities belonging to and any other differences
among the various Series the assets belonging to which have so been
transferred) among the Shareholders of the Series the assets belonging
to which have been so transferred; and if all of the assets of the
Trust have been so transferred, the Trust shall be terminated.
Section 7.3 Amendments. All rights granted to the
Shareholders under this Declaration of Trust are granted subject to
the reservation of the right to amend this Declaration of Trust as
herein provided, except that no amendment shall repeal the limitations
on personal liability of any Shareholder or Trustee or repeal the
prohibition of assessment upon the Shareholders without the express
consent of each Shareholder or Trustee involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether or not
related to the rights of Shareholders) may be amended at any time by
an instrument in writing signed by a majority of the then Trustees (or
by an officer of the Trust pursuant to the vote of a majority of such
Trustees), when authorized so to do by the vote in accordance with
subsection (e) of Section 4.2 of Shareholders holding a majority of
the Shares entitled to vote, except that amendments either (a)
establishing and designating any new Series of Shares not established
and designated in Section 4.2, or any Class or (b) having the purpose
of changing the name of the Trust or the name of any Shares
theretofore established and designated or of supplying any omission,
curing any ambiguity or curing, correcting or supplementing any
provision hereof which is internally inconsistent with any other
provision hereof or which is defective or inconsistent with the 1940
Act or with the requirements of the Internal Revenue Code and
applicable regulations for the Trust's obtaining the most favorable
treatment thereunder available to regulated investment companies,
shall not require authorization by Shareholder vote. Subject to the
foregoing, any such amendment shall be effective as provided in the
instrument containing the terms of such amendment or, if there is no
provision therein with respect to effectiveness, upon the execution of
such instrument and of a certificate (which may be a part of such
instrument) executed by a Trustee or officer of the Trust to the
effect that such amendment has been duly adopted.
Section 7.4 Filing of Copies; References; Headings. The
original or a copy of this instrument and of each amendment hereto
shall be kept at the office of the Trust where it may be inspected by
any Shareholder. A copy of this instrument and of each amendment
hereto shall be filed by the Trust with the Secretary of the State of
Ohio, as well as any other governmental office where such filing may
from time to time be required, but the failure to make any such filing
shall not impair the effectiveness of this instrument or any such
amendment. Anyone dealing with the Trust may rely on a certificate by
an officer of the Trust as to whether or not any such amendments have
been made, as to the identities of the Trustees and officers, and as
to any matters in connection with the Trust hereunder; and, with the
same effect as if it were the original, may rely on a copy certified
by an officer of the Trust to be a copy of this instrument or of any
such amendments. In this instrument and in any such amendment,
references to this instrument, and all expressions like "herein,"
"hereof" and "hereunder" shall be deemed to refer to this instrument
as a whole as the same may be amended or affected by any such
amendments. The masculine gender shall include the feminine and
neuter genders. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or
affect the meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts each of which
shall be deemed an original.
Section 7.5 Applicable Law. This Declaration of Trust is
created under and is to be governed by and construed and administered
according to the laws of the State of Ohio, including the Ohio General
Corporation Law as the same may be amended from time to time, but the
reference to said Corporation Law is not intended to give the Trust,
the Trustees, the Shareholders or any other person any right, power,
authority or responsibility available only to or in connection with an
entity organized in corporate form. The Trust shall be of the type
referred to in Section 1746.01 of the Ohio Revised Code, and without
limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust.
PAGE
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
for themselves and their assigns, as of the day and year first above
written.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇, III
▇▇▇▇ ▇. ▇▇▇▇▇, III
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS)
Before me, a Notary Public in and for said county and state,
personally appeared the above named ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇.
▇▇▇▇▇, III, who acknowledged that they did sign the foregoing
instrument and that the same is their free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on this 4th day of January, 1996.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
My Commission Expires: March 16, 1996