BROADWAY TRUST AGREEMENT AND DECLARATION OF TRUST
AGREEMENT
AND DECLARATION OF TRUST
________________,
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▇▇▇▇▇▇▇▇
TRUST
AGREEMENT
AND DECLARATION OF TRUST
AGREEMENT
AND DECLARATION OF TRUST made this ____ day of _______, 2007, 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 as a business trust under the laws of the State
of
Ohio 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 "Broadway 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:
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(a)
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The
"Trust" refers to the Ohio business trust established by this Agreement
and Declaration of Trust, as amended from time to
time;
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(b)
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"Trustees"
refers to the Trustees of the Trust named herein or elected in accordance
with Article III;
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(c)
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"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 and shall include fractions
of
Shares as well as whole Shares;
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(d)
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"Series"
refers to Series of Shares established and designated under or in
accordance with the provisions of Article
IV;
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(e)
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"Shareholder"
means a holder of record of outstanding
Shares;
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(f)
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The
"1940 Act" refers to the Investment Company Act of 1940 and the rules
and
regulations thereunder, all as amended from time to
time;
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(g)
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"Commission"
shall have the meaning given it in the 1940
Act;
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(h)
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"Declaration
of Trust" shall mean this Agreement and Declaration of Trust as amended
or
restated from time to time; and
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(i)
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"Bylaws"
shall mean the Bylaws of the Trust as amended from time to
time.
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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, but not exclusively,
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 ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
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▇▇▇▇▇.
ARTICLE
III
THE
TRUSTEES
Section
3.1 Number,
Designation, Election, Term, etc.
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(a)
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Initial
Trustee.
Upon execution of this Declaration of Trust or a counterpart hereof
or
some other writing in which he or she accepts such Trusteeship and
agrees
to the provisions hereof, ▇▇▇ ▇. ▇▇▇▇▇▇ shall become a Trustee
hereof.
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(b)
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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 or her 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. A Trustee shall be an individual
at
least 21 years of age who is not under legal
disability.
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(c)
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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.
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2
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(d)
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Resignation
and Retirement.
Any Trustee may resign his or her trust or retire as a Trustee, by
written
instrument signed by him or her 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.
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(e)
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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.
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(f)
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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.
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(g)
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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.
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(h)
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No
Accounting.
Except to the extent required by the 1940 Act or under circumstances
which
would justify his or her removal for cause, no person ceasing to
be a
Trustee as a result of his or her 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.
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(i)
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Meetings.
Meetings of the Trustees may be held regularly without call or notice
at
such places and at such times as the Trustees may from time to time
determine, provided that notice of the first regular meeting following
any
such determination shall be given to absent Trustees. Special meetings
of
the Trustees may be held upon the call of the Chairman, the President,
the
Treasurer or two or more Trustees. Notice of any special meeting
shall be
mailed not less than 48 hours before the meeting or sent by telegram,
given by telephone or in person not less than 24 hours before the
meeting,
but may be waived in writing by any Trustee either before or after
such
meeting. The attendance of a Trustee at a meeting shall constitute
a
waiver of notice of such meeting except where a Trustee attends a
meeting
for the express purpose of objecting to the transaction of any business
on
the ground that the meeting has not been lawfully called or convened.
A
quorum for any meeting of the Trustees shall be a majority of the
Trustees
then in office, provided that a quorum shall in no case be less than
two
Trustees. Whether or not a majority of the Trustees are present at
any
meeting, a majority of the votes cast upon the question may adjourn
the
meeting from time to time and the meeting may be held as adjourned
without
further notice; and at such adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted
at the meeting as originally notified. Unless provided otherwise
by the
1940 Act or other applicable law, this Declaration of Trust or the
Bylaws,
any action of the Trustees may be taken at a meeting by vote of a
majority
of the Trustees present (a quorum being present) or without a meeting
by
written consent of a majority of the Trustees. Such consents shall
be
filed with the minutes of the proceedings of the Trustees and shall
be
treated for all purposes as votes at the
meeting.
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Any
committee of the Trustees, including a nominating, executive or audit
committee, if any, may act with or without a meeting. A quorum for
any
meetings of any such committee shall be a majority of the members
thereof.
Unless provided otherwise by statute, this Declaration of Trust or
the
Bylaws, any action of any such committee may be taken at a meeting
by vote
of a majority of the members present (a quorum being present) or
without a
meeting by written consent of a majority of the members. Such consents
shall be filed with the minutes of the proceedings of such committee
and
shall be treated for all purposes as votes at the
meeting.
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With
respect to actions of the Trustees and any committee of the Trustees,
Trustees who are Interested Persons of the Trust within the meaning
of the
1940 Act hereof or otherwise interested in any action to be taken
may be
counted for quorum purposes under this Section and shall be entitled
to
vote to the extent permitted by the 1940
Act.
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All
or any one or more Trustees may participate in a meeting of the Trustees
or any committee thereof by means of conference telephone or similar
communications equipment by means of which all persons participating
in
the meeting can hear each other at the same time and participation
in a
meeting pursuant to any such communications system shall constitute
presence in person at such meeting unless otherwise prohibited under
the
1940 Act.
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(j)
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Officers.
The Trustee shall elect a President, a Secretary and a Treasurer
and may
elect a Chairman, one or more Vice Presidents, and such other officers
as
they deem necessary or appropriate. The Chairman, the President,
the
Treasurer and the Secretary shall be elected annually by the Trustees.
Other officers, if any, may be elected or appointed by the Trustees
at any
time. The Trustees may authorize the Chairman, if any, or President
to
appoint such other officers or agents with such powers as the Trustees
may
deem to be advisable. Any officer of the Trust elected or appointed
by the
Trustees or by any committee of the Trustees may be removed at any
time,
with or without cause, in such lawful manner as may be provided in
the
Bylaws and in this Declaration of Trust. The Chairman and President
shall
be Trustees. Any other officer may but need not be a
Trustee.
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(k)
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Bylaws.
The Trustees may adopt and from time to time amend or repeal Bylaws
for
the conduct of the business of the Trust, except with respect to
any
provisions of the Bylaws which by law or under this Declaration of
Trust
or the Bylaws require adoption, amendment or repeal by the Shareholders.
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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, in accordance with Section
3.3, employ one or more advisers, administrators, depositories and custodians
and may authorize any depository or custodian to employ sub-custodians 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.
5
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:
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(a)
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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;
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(b)
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Disposition
of Assets.
To sell, exchange, lend, pledge, mortgage, hypothecate, write options
on
and lease any or all of the assets of the
Trust;
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(c)
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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;
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(d)
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Subscription.
To exercise powers and rights of subscription or otherwise which
in any
manner arise out of ownership of securities or debt
instruments;
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(e)
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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,
sub-custodian or other depository or a nominee or nominees or
otherwise;
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(f)
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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;
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(g)
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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;
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(h)
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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;
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(i)
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Partnerships,
etc.
To enter into joint ventures, general or limited partnerships and
any
other combinations or associations;
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(j)
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Borrowing
and Security.
To borrow funds or otherwise obtain credit and to mortgage and pledge
the
assets of the Trust or any part thereof to secure obligations arising
in
connection with such borrowing or obtaining of
credit;
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(k)
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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;
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(l)
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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
of
the Trust, 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;
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(m)
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Pensions,
etc.
To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of
providing
such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust;
and;
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(n)
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Disposition
of Shares.
To issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell,
reissue, dispose of, transfer and otherwise deal in Shares, including
Shares in fractional denominations, and, subject to the more detailed
provisions set forth in Article V, to apply to any such repurchase,
redemption, retirement, cancellation
or acquisition of Shares any funds or property of the Trust, whether
capital or surplus or otherwise, to the full extent now or hereafter
permitted by the laws of the State of Ohio governing business trusts
and
corporations.
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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, limited
liability companies, 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:
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(a)
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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;
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(b)
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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;
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(c)
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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;
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(d)
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Custodian
and Depository.
To act as depository for and to maintain custody of the property
of the
Trust and accounting records in connection
therewith;
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(e)
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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;
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(f)
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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
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(g)
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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.
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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
sub-contractual 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, limited liability companies 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.
9
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 and to
determine such other terms and conditions of such Series as the Trustees
determine to be appropriate. 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. 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 redemption by 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.
10
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.
11
Section
4.2 Establishment
and Designation of Series.
The
Trustees hereby establish the Series and classes listed in Schedule
A
attached
hereto and made a part hereof. Schedule
A
may be
revised from time to time by resolution of a majority of the then Trustees,
including in connection with the establishment and designation of any Series
or
Class pursuant to this Section. The Shares of these 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:
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(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.
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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.
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(b)
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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.
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12
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(c)
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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.
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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.
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(d)
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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.
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13
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(e)
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Voting.
All shares of all Series shall have "equal voting rights" as such
term is
defined in the 1940 Act 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.
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(f)
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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
or her
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. If so authorized by the Trustees, the Trust may, at
any time
and from time to time, charge fees for effecting redemptions, at
such
rates as the Trustees may establish, as and to the extent permitted
under
the 1940 Act and may, from time to time, pursuant to the 1940 Act,
suspend
such right of redemption.
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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.
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14
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(g)
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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.
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(h)
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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.
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The
net asset value of each outstanding Share of the Trust shall be determined
at least once on each day that the New York Stock Exchange is open
for
business, and at such other times as the Trustees by resolution may
determine. The method of determination of net asset value shall be
determined by the Trustees and shall be as set forth in the Prospectus.
Separate determinations of net asset value shall be made for Shares
of
each Series, if any, and separate classes of each series, if any,
with
respect to which specific assets of the Trust have been allocated.
The
power and duty to make the daily calculations may be delegated by
the
Trustees to the investment adviser, the custodian, the transfer agent
or
such other person as the Trustees by resolution may determine. The
Trustees may suspend the daily determination of net asset value to
the
extent permitted by the 1940 Act.
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(i)
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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.
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Until
such record is made, the Shareholder of record shall be deemed to
be the
holder of such Shares for all purposes hereof and neither the Trustees
nor
any transfer agent or registrar nor any officer, employee or agent
of the
Trust shall be affected by any notice of the proposed transfer. Any
person
becoming entitled to any Shares in consequence of death, bankruptcy
or
incompetence of any Shareholder, or otherwise by operation of law,
shall
be recorded on the registrar of Shares as the holder of such Shares
upon
production of the proper evidence thereof to the transfer agent of
the
Trust, but until such record is made, the Shareholder of record shall
be
deemed to be the holder of such Shares for all purposes hereof and
neither
the Trustees nor any transfer agent or registrar nor any officer
of agent
of the Trust shall be affected by any notice of such death, bankruptcy
or
incompetence, or other operation of law.
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15
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(j)
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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.
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(k)
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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.
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(l)
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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.
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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 Investmentsin
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.
16
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.
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 7.4, and (v) 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.
17
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 or she has since that date and time disposed of his
or
her 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.
18
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.
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 only be liable for his or
her
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, counsel, 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.
19
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 or her
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") to the fullest extent now or hereafter permitted by law 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.
20
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.
21
Section
7.3 Incorporation.
With
the approval of the holders of the majority of the Shares outstanding and
entitled to vote, the Trustees may cause to be organized or assist in organizing
a corporation or corporations under the laws of any jurisdiction or any other
trust, partnership, association or other organization to take over all of the
Trust property or to carry on any business in which the Trust shall directly
or
indirectly have any interest, and to sell, convey and transfer the Trust
property to any such corporation, trust, association or organization in exchange
for the shares or securities thereof or otherwise, and to lend money to,
subscribe for the shares or securities of, and enter into any contracts with
any
such corporation, trust, partnership, association or organization, or any
corporation, partnership, trust, association or organization in which the Trust
holds or is about to acquire shares or any other interest. The Trustees may
also
cause a merger or consolidation between the Trust or any successor thereto
and
any such corporation, trust, partnership, association or other organization
if
and to the extent permitted by law, as provided under the law then in effect.
Unless otherwise required by applicable law, nothing contained herein shall
be
construed as requiring approval of Shareholders for the Trustees to organize
or
assist in organizing one or more corporations, trusts, partnerships,
associations or other organizations and selling, conveying or transferring
a
portion of the Trust Property to such organizations or entities.
Section
7.4 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, Trustee or officer, employee, or any
agent of the Trust or repeal the prohibition of assessment upon the Shareholders
without the express consent of each Shareholder, Trustee, officer, or agent
of
the Trust 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
7.5 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.
22
Section
7.6 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, as the same may be
amended from time to time. 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.
Section
7.7 Counterparts.
This
Declaration of Trust may be simultaneously executed in several counterparts,
each of which shall be deemed to be an original, and such counterparts,
together, shall constitute one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
Section
7.8 Reliance
by Third Parties.
Any
certificate executed by an individual who, according to the records of the
Trust, appears to be a Trustee hereunder, or a duly elected Secretary or
Assistant Secretary of the Trust, certifying to: (a) the number or identity
of
Trustees or Shareholders, (b) the due authorization of the execution of any
instrument or writing, (c) the form of any vote passed at a meeting of Trustees
or Shareholders, (d) the fact that the number of Trustees or Shareholders
present at any meeting or executing any written instrument satisfies the
requirements of this Declaration of Trust, (e) the form of any Bylaws adopted
by
or the identity of any officers elected by the Trustees, or (f) the existence
of
any fact or facts which in any manner relate to the affairs of the Trust, shall
be conclusive evidence as the matters so certified in favor of any person
dealing with Trustees and their successors.
Section
7.9 Provisions
in Conflict with Law or Regulations.
(a) The
provisions of this Declaration of Trust, are severable, and if the Trustees
shall determine, with the advice of counsel, that any of such provisions is
in
the conflict with the 1940 Act, the regulated investment company provisions
of
the Internal Revenue Code or other applicable laws and regulations, the
conflicting provisions shall be deemed never to have constituted a part of
this
Declaration of Trust, provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such
determination.
23
(b)
If
any provisions of this Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
IN
WITNESS WHEREOF, the undersigned has hereunto set his or her hand for himself
or
herself and his or her assigns, as of the day and year first above
written.
| /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ |
24
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
Trustee
|
2
|
|
|
(b)
|
Number
|
2
|
|
|
(c)
|
Term
|
2
|
|
|
(d)
|
Resignation
and Retirement
|
3
|
|
|
(e)
|
Removal
|
3
|
|
|
(f)
|
Vacancies
|
3
|
|
|
(g)
|
Effect
of Death, Resignation, etc
|
4
|
|
|
(h)
|
No
Accounting
|
4
|
|
|
(i)
|
Meetings
|
4
|
|
|
(j)
|
Officers
|
5
|
|
|
(k)
|
Bylaws
|
5
|
|
|
Section
3.2
|
Powers
of the Trustees
|
5
|
|
|
(a)
|
Investments
|
6
|
|
|
(b)
|
Disposition
of Assets
|
6
|
|
|
(c)
|
Ownership
Powers
|
6
|
|
-i-
|
(d)
|
Subscription
|
6
|
|
|
(e)
|
Form
of Holding
|
6
|
|
|
(f)
|
Reorganization,
etc
|
6
|
|
|
(g)
|
Voting
Trusts, etc
|
6
|
|
|
(h)
|
Compromise
|
7
|
|
|
(i)
|
Partnerships,
etc
|
7
|
|
|
(j)
|
Borrowing
and Security
|
7
|
|
|
(k)
|
Guarantees,
etc
|
7
|
|
|
(l)
|
Insurance
|
7
|
|
|
(m)
|
Pensions,
etc
|
7
|
|
|
(n)
|
Disposition
of Shares
|
7
|
|
|
Section
3.3
|
Certain
Contracts
|
8
|
|
|
(a)
|
Advisory
|
8
|
|
|
(b)
|
Administration
|
8
|
|
|
(c)
|
Distribution
|
8
|
|
|
(d)
|
Custodian
and Depository
|
8
|
|
|
(e)
|
Transfer
and Dividend Disbursing Agency
|
9
|
|
|
(f)
|
Shareholder
Servicing
|
9
|
|
|
(g)
|
Legal,
Accounting, Taxes and Other
|
9
|
|
|
Section
3.4
|
Payment
of Trust Expenses and Compensationof
Trustees
|
10
|
|
|
Section
3.5
|
Ownership
of Assets of the Trust
|
10
|
|
|
ARTICLE
IV.
|
SHARES
|
10
|
|
|
Section
4.1
|
Description
of Shares
|
10
|
|
|
Section
4.2
|
Establishment
and Designation of Series
|
12
|
|
|
(a)
|
Assets
Belonging to Series
|
12
|
|
|
(b)
|
Liabilities
Belonging to Series
|
12
|
|
|
(c)
|
Dividends
|
13
|
|
|
(d)
|
Liquidation
|
13
|
|
|
(e)
|
Voting
|
14
|
|
|
(f)
|
Redemption
by Shareholder
|
14
|
|
|
(g)
|
Redemption
by Trust
|
15
|
|
|
(h)
|
Net
Asset Value
|
15
|
|
|
(i)
|
Transfer
|
15
|
|
|
(j)
|
Equality
|
16
|
|
|
(k)
|
Fractions
|
16
|
|
|
(l)
|
Conversion
Rights
|
16
|
|
-ii-
|
Section
4.3
|
Ownership
of Shares
|
16
|
|
Section
4.4
|
Investments
in the Trust
|
16
|
|
Section
4.5
|
No
Preemptive Rights
|
17
|
|
Section
4.6
|
Status
of Shares and Limitation of Personal Liability
|
17
|
|
ARTICLE
V.
|
SHAREHOLDERS'
VOTING POWERS AND MEETINGS
|
17
|
|
Section
5.1
|
Voting
Powers
|
17
|
|
Section
5.2
|
Meetings
|
17
|
|
Section
5.3
|
Record
Dates
|
18
|
|
Section
5.4
|
Quorum
and Required Vote
|
18
|
|
Section
5.5
|
Action
by Written Consent
|
18
|
|
Section
5.6
|
Inspection
of Records
|
19
|
|
Section
5.7
|
Additional
Provisions
|
19
|
|
ARTICLE
VI
|
LIMITATION
OF LIABILITY; INDEMNIFICATION
|
19
|
|
Section
6.1
|
Trustees,
Shareholders, etc. Not Personally Liable; Notice
|
19
|
|
Section
6.2
|
Trustee's
Good Faith Action; Expert Advice; No Bond or Surety
|
19
|
|
Section
6.3
|
Indemnification
of Shareholders
|
20
|
|
Section
6.4
|
Indemnification
of Trustees, Officers, etc
|
20
|
|
Section
6.5
|
Advances
of Expenses
|
20
|
|
Section
6.6
|
Indemnification
Not Exclusive, etc
|
21
|
|
Section
6.7
|
Liability
of Third Persons Dealing with Trustees
|
21
|
-iii-
|
ARTICLE
VII.
|
MISCELLANEOUS
|
21
|
|
|
|
|
|
Section
7.1
|
Duration
and Termination of Trust
|
21
|
|
|
|
|
|
Section
7.2
|
Reorganization
|
21
|
|
|
|
|
|
Section
7.3
|
Incorporation
|
22
|
|
|
|
|
|
Section
7.4
|
Amendments
|
22
|
|
|
|
|
|
Section
7.5
|
Filing
of Copies; References; Headings
|
22
|
|
|
|
|
|
Section
7.6
|
Applicable
Law
|
23
|
|
|
|
|
|
Section
7.7
|
Counterparts
|
23
|
|
|
|
|
|
Section
7.8
|
Reliance
by Third Parties
|
23
|
|
|
|
|
|
Section
7.9
|
Provisions
in Conflict with Law or Regulations
|
23
|
-iv-
SCHEDULE
A
SERIES
AND CLASSES
As
of
________________, 2007
|
Series
|
Classes |
Broadway
Trust Balanced Fund
Broadway
Trust Equity Fund
Broadway
Trust Small Cap Fund
SRI
Balanced Fund
SRI
Equity Fund
Broadway
Trust Money Market Fund