PAPP INVESTMENT TRUST AGREEMENT AND DECLARATION OF TRUST November 12, 2009
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INVESTMENT TRUST
AGREEMENT
AND DECLARATION OF TRUST
November
12, 2009
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INVESTMENT TRUST
AGREEMENT AND DECLARATION OF
TRUST
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PAGE
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ARTICLE
I.
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NAME AND
DEFINITIONS
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1
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Section
1.1
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Name
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1
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Section
1.2
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Definitions
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1
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(a)
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"Trust"
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1
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(b)
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"Trustees"
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1
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(c)
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"Shares"
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1
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(d)
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"Series"
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1
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(e)
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"Shareholder"
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2
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(f)
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"1940
Act"
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2
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(g)
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"Commission"
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2
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(h)
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"Declaration
of Trust"
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2
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(i)
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"Bylaws"
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2
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(j)
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"Class"
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2
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ARTICLE
II.
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PURPOSE OF
TRUST
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2
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ARTICLE
III.
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THE
TRUSTEES
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2
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Section
3.1
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Number,
Designation, Election, Term, etc
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2
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(a)
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Initial
Trustees
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2
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(b)
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Number
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2
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(c)
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Term
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3
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(d)
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Resignation
and Retirement
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3
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(e)
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Mandatory
Retirement
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3
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(f)
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Removal
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3
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(g)
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Vacancies
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3
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(h)
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Effect
of Death, Resignation, etc
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4
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(i)
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No
Accounting
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4
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(j)
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Delegation
of Power to Other Trustees
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4
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Section
3.2
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Powers
of the Trustees
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4
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(a)
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Investments
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5
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(b)
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Disposition
of Assets
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5
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(c)
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Ownership
Powers
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5
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(d)
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Subscription
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5
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(e)
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Form
of Holding
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5
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(f)
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Reorganization,
etc.
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6
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(g)
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Voting
Trusts, etc
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6
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(h)
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Compromise
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6
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-i-
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(i)
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Partnerships,
etc.
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6
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(j)
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Borrowing
and Security
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6
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(k)
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Guarantees,
etc
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6
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(l)
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Insurance
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6
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(m)
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Pensions,
etc
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7
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(n)
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Investment
in Other Investment Companies
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7
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(o)
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Valuation
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7
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Section
3.3
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Certain
Contracts
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7
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(a)
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Advisory
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8
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(b)
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Administration
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8
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(c)
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Distribution
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8
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(d)
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Custodian
and Depository
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8
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(e)
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Transfer
and Dividend Disbursing Agency
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8
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(f)
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Shareholder
Servicing
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8
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(g)
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Legal,
Accounting, Taxes and Other
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8
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Section
3.4
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Payment
of Trust Expenses and Compensation of Trustees
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9
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Section
3.5
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Ownership
of Assets of the Trust
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9
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ARTICLE
IV.
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SHARES
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10
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Section
4.1
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Description
of Shares
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10
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Section
4.2
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Establishment
and Designation of Series
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11
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(a)
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Assets
Belonging to Series
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11
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(b)
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Liabilities
Belonging to Series
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12
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(c)
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Dividends
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12
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(d)
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Liquidation
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13
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(e)
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Voting
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13
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(f)
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Redemption
by Shareholder
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14
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(g)
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Redemption
by Trust
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14
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(h)
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Net
Asset Value
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15
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(i)
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Transfer
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15
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(j)
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Equality
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15
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(k)
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Fractions
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15
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(l)
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Conversion
and Exchange Rights
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15
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Section
4.3
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Ownership
of Shares
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16
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Section
4.4
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Investments
in the Trust
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16
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Section
4.5
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No
Preemptive Rights
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16
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Section
4.6
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Status
of Shares and Limitation of Personal Liability
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16
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-ii-
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ARTICLE
V.
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SHAREHOLDERS' VOTING
POWERS AND MEETINGS
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16
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ARTICLE
VI.
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LIMITATION OF
LIABILITY; INDEMNIFICATION
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17
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Section
6.1
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Trustees,
Shareholder, etc. Not Personally Liable; Notice
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17
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Section
6.2
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Trustee's
or Officer’s Good Faith Action; Expert Advice;
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No
Bond or Surety
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18
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Section
6.3
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Indemnification
of Shareholders
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18
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Section
6.4
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Indemnification
of Trustees, Officers, etc
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19
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Section
6.5
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Advances
of Expenses
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19
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Section
6.6
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Indemnification
Not Exclusive, etc
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19
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Section
6.7
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Liability
of Third Persons Dealing with Trustees
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19
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Section
6.8
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Derivative
Actions
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19
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ARTICLE
VII.
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MISCELLANEOUS
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20
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Section
7.1
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Duration
and Termination of Trust
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20
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Section
7.2
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Reorganization
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20
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Section
7.3
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Amendments
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21
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Section
7.4
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Use
of Names
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22
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Section
7.5
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Filing
of Copies; References; Headings
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23
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Section
7.6
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Applicable
Law
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23
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-iii-
▇▇▇▇
INVESTMENT TRUST
AGREEMENT AND DECLARATION OF
TRUST
AGREEMENT AND DECLARATION OF TRUST made
this 12th day
of November, 2009, 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 "▇▇▇▇ 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:
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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 or Class of shares of the Trust (as
the context may require) shall be divided from time to
time;
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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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1
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(e)
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"Shareholder"
means a record owner of
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 mean the U.S. Securities & Exchange Commission (or any successor
agency);
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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;
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(i)
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"Bylaws"
shall mean the bylaws of the Trust as amended from time to time that are
adopted
pursuant to Article III hereof;
and
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(j)
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"Class"
refers to any Class of Shares established and designated under or in
accordance with the provisions of Article IV
hereof.
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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 in securities and financial 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 Trust will maintain an office within Ohio located at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
ARTICLE
III
THE
TRUSTEES
Section
3.1 Number, Designation,
Election, Term, etc.
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(a)
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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, L. ▇▇▇ ▇▇▇▇ 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 term, but the number of Trustees may
be decreased in conjunction with the removal of a Trustee pursuant to
subsection (f) of this Section 3.1.
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(c)
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Term. Subject
to the provisions set forth below, and subject to the applicable
provisions of the 1940 Act, 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, is
removed, or the
election and qualification of his successor, provided, however, that any
Trustee who has served to the end of his term of office as has been
established pursuant to any written policy adopted from time to time by a
majority of the Trustees shall, automatically and without action of such
Trustee or the remaining Trustees, be deemed to have retired in accordance
with the terms of such policy, effective as of the date determined in
accordance with such policy. The Trustees may elect their own
successors and may, pursuant to Section 3.1(g) hereof, appoint Trustees to
fill vacancies.
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(d)
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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.
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(e)
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Mandatory
Retirement. Any Trustee who has attained a mandatory
retirement age established pursuant to any written policy adopted from
time to time by a majority of the Trustees shall, automatically and
without action of such Trustee or the remaining Trustees, be deemed to
have retired in accordance with the terms of such policy, effective as of
the date determined in accordance with such
policy.
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(f)
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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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(g)
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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
two remaining Trustees, need not unless required by the ▇▇▇▇ ▇▇▇) be
filled either by a majority of the remaining Trustees through the
appointment 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
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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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(h)
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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. Whenever a vacancy in the number
of Trustees shall occur, until such vacancy is filled as provided herein,
the other Trustees in office, regardless of their number, shall have all
the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Declaration of Trust, and only such
other Trustees shall be counted for the purposes of the existence of a
quorum or the taking of any action to be taken by the
Trustees. A written instrument certifying the existence of such
vacancy signed by a majority of the Trustees shall be conclusive evidence
of the existence thereof.
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(i)
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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.
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(j)
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Delegation of Power to
Other Trustees. Any Trustee may, by power of attorney,
delegate his power for a period not exceeding six months at any one time
to any other Trustee or Trustees; provided that in no case shall fewer
than two Trustees personally exercise the powers granted to the Trustees
under this Declaration of Trust except as otherwise expressly provided
herein.
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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 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 such appointments, 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
4
more
investment advisers, investment sub-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, investment advisers, administrators, custodians, other agents,
consultants or 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 acting collectively, or pursuant to committee, shall have power and
authority:
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(a)
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Investments. To
purchase, sell, and sell short, securities of any kind including, without
limitation, common and preferred stocks, bonds, call options, put options,
futures contracts, derivative investments, debentures, notes, bank
certificates of deposit, bankers’ acceptances, mortgage-backed securities
and other debt obligations, and any certificates, receipts, warrants or
other instruments representing rights to receive, purchase or subscribe
for the same, or evidencing or representing any other rights or interests
therein; 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, 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,
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
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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;
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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 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 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
pay, defend, abandon, 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, and to enter into releases, agreements
and other instruments;
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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 and to mortgage and pledge the
assets of the Trust or any part thereof to secure obligations arising in
connection with such borrowing;
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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 partially or 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
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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
with Trust property;
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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, deferred compensation, 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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Investment in Other
Investment Companies. To either invest all or a portion of the
property of the Trust or, as applicable, all or a portion of the property
of one or more Series of the Trust, or sell all or a portion of such
property and invest the proceeds of such sales, in one or more other
investment companies, in each case without any requirement of approval by
Shareholders, to the extent not prohibited by the ▇▇▇▇
▇▇▇.
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(o)
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Valuation. To
determine the value of the Trust’s assets in accordance with Section
2(a)(41) of the 1940 Act.
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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
(to the extent permissible under the ▇▇▇▇ ▇▇▇) 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, limited liability companies,
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 or any Series or Class thereof 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 or any Series or Class thereof 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.
8
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 or any Series or
Class thereof 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 or Classes 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.
9
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, subject to the
applicable requirements of the 1940 Act, 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. 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, 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 Share split), 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.
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 the Bylaws.
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 a determination by a
majority of the then Trustees to create such Series or Class which establishes
and designates the relative rights and preferences of such Series or Class, or
at such other date as determined by the Trustees. At any time that
there are no Shares outstanding of any particular Series or Class previously
established and designated, the Trustees may by a majority of their number
abolish that Series or Class and the establishment and designation
thereof.
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: "▇▇▇▇ Small
and Mid-Cap Growth 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:
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(a)
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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 of such Series, 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
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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. No holder of Shares, or creditors, of any particular
Series shall have any claim on or right to any assets allocated or
belonging to any other Series of Shares. No holder of Shares of
any particular Series shall be entitled to participate in a derivative or
class action on behalf of any other Series or the Shareholders of any
other Series.
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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. Under no
circumstances shall the assets allocated or belonging to any particular
Series be charged with liabilities attributable to any other
Series. All persons who have extended credit which has been
allocated to a particular Series, or who have a claim or contract which
has been allocated to any particular Series, shall look only to the assets
of that particular Series for payment of such credit, claim or
contract.
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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
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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 a Series, or of the Trust as a
whole, 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 or the Trust as
a whole may be authorized by vote of a majority of the Trustees then in
office without Shareholder
approval.
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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 the 1940
Act. Shareholders entitled to vote on any matter will have one
vote for each Share owned. 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 or Class is required by the
1940 Act, such requirements as to a separate vote by that Series or Class
shall apply in lieu of Single Class Voting as described above; (b) in the
event that the separate vote requirements referred to in clause (a) of
this paragraph apply with respect to one or more Series or Class, then,
subject to clause (c) below, the Shares of all other Series or Classes
shall vote as a single class; and (c) as to
any
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matter
which does not affect the interest of a particular Series or Class, only
the holders of Shares of the one or more affected Series or Class 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 required by the 1940 Act, to require
the Trust to redeem all or any part of his Shares of that Series or Class
at a redemption price equal to the net asset value per Share of that
Series or Class next determined in accordance with subsection (h) of this
Section 4.2, less any applicable redemption fee or sales charge, after the
Shares are properly tendered for redemption. Payment of the
redemption price shall be made from the assets of the applicable Series 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.
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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 or Class to
require the Trust to redeem Shares of that Series or Class 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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(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
at any time and for any reason under the terms set by the Trustees,
including but not limited to: (a) 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 or
Class of the Trust, (b) the determination of the Trustees that direct or
indirect ownership of Shares of any Series has or may become concentrated
in such Shareholder to an extent that would disqualify that Series as a
regulated investment company under the Internal Revenue Code of 1986, as
amended (or any successor statute thereto), (c) the failure of a
Shareholder to supply a tax identification number or other information if
required to do so, (d) the failure of a Shareholder to pay when due for
the purchase of Shares issued to that Shareholder, (e) the value of a
Shareholder's Shares being less than a minimum amount established from
time to time by the Trustees, (f) the failure of a Shareholder to meet or
maintain the qualifications for ownership of a particular Series or Class
of Shares, (g) the determination by the Trustees or pursuant to policies
adopted by the Trustees that ownership of Shares by a particular
Shareholder is not in the best interests of the remaining Shareholders of
the Trust or applicable Series or Class, and (h) the merger,
reorganization or liquidation of a Series or the Trust. Upon
such
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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. The Trustees may determine
to maintain the net asset value per Share of any Series at a designated
constant dollar amount and in connection therewith may reduce the number
of outstanding Shares of the Series by reducing the number of Shares in
the account of each Shareholder on a pro rata basis, so as to maintain the
net asset value per Share of such Series at a constant dollar
amount.
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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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(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 among
Classes permissible under this Section 4.2 that may exist with respect to
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 and
Exchange 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 or
exchange said Shares for Shares of one or more other Series of the Trust,
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,
and, if so issued, may be retired by the Trustees at any 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.
ARTICLE
V
SHAREHOLDERS' VOTING POWERS
AND MEETINGS
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,
but only to the extent required by Section 7.2, (iv) with respect to any
amendment of this Declaration of Trust to the extent and as provided in
16
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. A majority of the
Shares present in person or by proxy, 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.
The Bylaws may include further
provisions for Shareholders' votes and meetings, including the establishment of
record dates, the determination of a quorum 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. No Trustee, officer,
employee or agent of the Trust shall be subject to any personal liability
whatsoever to any person in connection with Trust property or the affairs of the
Trust; and all persons shall look solely to the Trust property for satisfaction
of claims of any nature arising in connection with the affairs of the
Trust. No Shareholder or former Shareholder shall be subject to any
personal liability whatsoever to any person in connection with Trust property or
the acts, obligations or affairs of the Trust solely by reason of being or
having been a Shareholder.
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.
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Every written 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 or Officer’s Good
Faith Action; Expert Advice; No Bond or Surety. The exercise
by the Trustees or the officers of the Trust of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee or
officer of the Trust 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 or officer, and for nothing else, and shall not be liable
for errors of judgment or mistakes of fact or law. Subject to the
foregoing, (a) neither the Trustees nor the officers shall 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 and the officers 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 officers, 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 and officers, 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 of its officers, 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 or any Series solely by reason of being or having been a
Shareholder (other than taxes payable by virtue of owning shares) 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
applicable series to be held harmless from and indemnified against all loss and
expense arising from such liability.
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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.
Section
6.8. Derivative
Actions. No Shareholder shall have the right to bring or
maintain any court action, proceeding or claim on behalf of the Trust or any
Series or Class thereof without first making demand on the Trustees requesting
the Trustees to bring or maintain such action, proceeding or
claim. Such demand shall be excused only when the plaintiff makes a
specific showing that irreparable injury to the Trust or any Series or Class
thereof would otherwise result, or if a majority of the Trustees, or a majority
of any committee established to consider the merits of such action, has a
personal financial interest in the action at issue. A Trustee shall
not be deemed to have a personal financial interest in an action or otherwise be
disqualified from ruling on a Shareholder demand by virtue of the fact that such
Trustee receives
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remuneration
from his or her service on the Board of Trustees of the Trust or on the boards
of one or more investment companies with the same or an affiliated investment
advisor or underwriter, or the amount of such remuneration.
Such demand shall be mailed to the
Secretary of the Trust at the Trust's principal office and shall set forth in
reasonable detail the nature of the proposed court action, proceeding or claim
and the essential facts relied upon by the Shareholder to support the
allegations made in the demand. The Trustees shall consider such
demand within 45 days of its receipt by the Trust. In their sole
discretion, the Trustees may submit the matter to a vote of Shareholders of the
Trust or any Series or Class thereof, as appropriate. Any decision by
the Trustees to bring, maintain or settle (or not to bring, maintain or settle)
such court action, proceeding or claim, or to submit the matter to a vote of
Shareholders, shall be made by the Trustees in their business judgment and shall
be binding upon the Shareholders. Any decision by the Trustees to
bring or maintain a court action, proceeding or suit on behalf of the Trust or
any Series or Class thereof shall be subject to the right of the Shareholders
under Article V of this Declaration of Trust to vote on whether or not such
court action, proceeding or suit should or should not be brought or
maintained.
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.
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.
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(a)
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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, all or substantially all the
liabilities belonging to each Series the assets of which are so
transferred.
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(b)
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Notwithstanding
Section 7.2(a) above, any one or more Series may, either as the successor,
survivor or non-survivor, (1) consolidate or merge with one or more other
trusts, partnerships, associations or corporations, including any series
or class thereof, organized under the laws of the State of Ohio or any
other state of the United States; or (2) transfer a substantial portion of
its assets to one or more other trusts, partnerships, associations or
corporations, including any series or class thereof, organized under the
laws of the State of Ohio or any other state of the United States, any
such consolidation, merger or transfer to be upon such terms and
conditions as are specified in an agreement and plan of reorganization
authorized and approved by the Trustees and entered into by the relevant
series in connection therewith. Any such consolidation, merger or transfer
may be authorized by vote of a majority of the Trustees then in office
without the approval of Shareholders of any
Series.
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(c)
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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.
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Section
7.3 Amendments.
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(a)
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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. Subject to the foregoing, the
Trustees may, 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), without any Shareholder vote, amend or otherwise
supplement this Declaration of Trust by making an amendment, a Declaration
of Trust supplemental hereto or an amended and restated Declaration of
Trust. Without
limiting the foregoing power reserved to the Trustees, the Trustees may,
without any Shareholder vote, amend this Declaration of Trust in order to
(i) establish and designate any new Series of Shares not established and
designated in Section 4.2, or any Class or amend any such establishment or
designation; (ii) change the name of the Trust or the name of any Series
or Class theretofore established and designated or the name of its
principal office or agent, as applicable; (iii) supply any omission, cure
any ambiguity or cure, correct or supplement any provision hereof which is
internally inconsistent with any other provision hereof; or (iv) if the
Trustees deem it necessary and advisable, to conform this Declaration of
Trust to the requirements of applicable law, including the 1940 Act and
the Internal Revenue Code and applicable regulations, in order that the
Trust may obtain the most favorable treatment thereunder available to
regulated investment companies, but the Trustees shall not be liable for
failing to do so. 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
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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.
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(b)
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Shareholders
shall have the right to vote on (i) any amendment that would affect their
right to vote granted hereunder; (ii) any amendment to this Section; (iii)
any amendment as may be required by law, or by the Trust's then current
registration statement, to be approved by Shareholders; and (iv) any
amendment submitted to them by the Trustees. Any amendment on
which Shareholders have the right to vote shall require the vote, or the
written consent, without a meeting, of the holders of Shares representing
not less than a majority of the outstanding Shares of the Trust.
Notwithstanding the foregoing, if the Trustees shall determine that any
amendment required or permitted to be submitted to Shareholders would
affect only the interest of Shareholders of particular Series or Classes
of Shares, then only Shareholders of such Series or Classes, as
applicable, shall be entitled to vote thereon, and no vote of Shareholders
of any other Series or Classes shall be required. 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.
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(c)
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Nothing
contained in this Declaration of Trust shall permit the amendment of this
Declaration of Trust to impair the exemption from personal liability of
the Shareholders, former Shareholders, Trustees, officers, employees and
agents of the Trust or to permit assessments upon Shareholders or former
Shareholders. Notwithstanding anything else herein, any amendment to
Section 6.4 shall not limit the rights to indemnification or insurance
provided therein with respect to actions or omissions of persons entitled
to indemnification under such Section prior to such
amendment.
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(d)
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Notwithstanding
any other provision hereof, until such time as Shares of a particular
Series or Class are first issued, this Declaration of Trust may be
terminated or amended in any respect as to that Series or Class, and as to
any Series or Class in which Shares are not outstanding, by the
affirmative vote of a majority of the Trustees or by an instrument signed
by a majority of the Trustees.
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Section
7.4 Use of
Names. If L. ▇▇▇ ▇▇▇▇ & Associates, LLP (“▇▇▇▇”) ceases to
act as investment adviser to a series of the Trust, or, in any event, if ▇▇▇▇ so
requests in writing, the Trust agrees to take all necessary action to change the
names of the Trust and any series of the Trust to a name not including the term
“▇▇▇▇”. ▇▇▇▇ may from time to time make available to the Trust for
its use, without charge to the Trust, such marks or symbols owned by ▇▇▇▇,
including marks or symbols containing the term “▇▇▇▇” or any variation thereof,
as ▇▇▇▇ may consider appropriate. Any such marks or symbols so made
available will remain ▇▇▇▇’▇ property
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and it
shall have the right, upon notice in writing, to require the Trust to cease the
use of such ▇▇▇▇ or symbol at any time.
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.
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, 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.
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IN WITNESS WHEREOF, the undersigned has
hereunto set his hand for himself and his assigns, as of the day and year first
above written.
/s/ ▇. ▇▇▇
Papp__________
L. ▇▇▇ ▇▇▇▇, Trustee
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STATE
OF ARIZONA
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) ss:
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COUNTY
OF MARICOPA
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Before me, a Notary Public in and for
said county and state, personally appeared the above named L. ▇▇▇ ▇▇▇▇, who
acknowledged that he did sign the foregoing instrument and that the same is his
free act and deed.
IN WITNESS WHEREOF, I have hereunto set
my hand and affixed my official seal on this 12th day of November,
2009.
/s/ ▇▇▇▇▇ ▇.
Weems_____
Notary Public
My
Commission Expires: ____1-13-2011_____
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