Exhibit (a)(i)
AMENDED AND RESTATED
DECLARATION OF TRUST
FIFTH THIRD FUNDS
(formerly Fountain Square Funds)
Dated November 6, 2003
This AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
made at Boston, Massachusetts this 6th day of November, 2003 (as so amended and
restated, the "Declaration of Trust") by the Trustees hereunder and by the
holders of shares of beneficial interest issued and to be issued hereunder as
hereinafter provided, amending and restating the Declaration of Trust dated
September 15, 1988 and amended November 25, 1988, May 16, 1989, March 13, 1991,
June 10, 1991, June 5, 1992, March 5, 1993, March 29, 1994, December 15, 1993,
January 23, 1996, June 17, 1997, December 31, 1997, March 23, 1998, October 22,
1998, July 14, 1999, February 18, 2000, April 1, 2000, April 5, 2001, June 12,
2002 and September 18, 2002 (the "Amended Declaration of Trust").
WHEREAS, pursuant to Section 7 of Article XII of the Amended
Declaration of Trust the Trustees of the Trust have determined that the Amended
Declaration of Trust should be amended;
WHEREAS, the establishment and designation of those Series and Classes
identified in Section 5 of Article III of the Amended Declaration of Trust
remain effective, subject to the authority of the Trustees to modify the
designation, rights and preferences of such Series and Classes; and
WHEREAS, the shareholders have duly approved this Declaration of Trust;
NOW, THEREFORE, the Trustees of this Trust direct that this Declaration
of Trust be filed with the Secretary of State of The Commonwealth of
Massachusetts and that this Declaration of Trust shall take effect as of the
date of filing.
WIINESSETH that
WHEREAS, this Trust has been formed to carry on the business
of an investment company; and
WHEREAS, the Trustees have agreed to manage all property
owning into their hands as trustees of a Massachusetts voluntary
association with transferable shares in accordance with the provisions
hereinafter set forth;
NOW, THEREFORE, the Trustees declare that all money and
property contributed to the trust fund hereunder shall be held and
managed under this Declaration of Trust IN TRUST as herein set forth
below.
ARTICLE I
NAMES AND DEFINITIONS
Section 1. Name.
--------- ----
This Trust shall be known as Fifth Third Funds.
Section 2. Definitions.
--------- -----------
Wherever used herein, unless otherwise required by the context or
specifically provided:
(a) The terms "Affiliated Person," "Assignment,"
"Commission, "Interested Person," "Majority Shareholder Vote"
(the 67% or 50% requirement of Section 2(a)(42) of the 1940
Act, whichever may be applicable) and "Principal Underwriter"
shall have the meanings given them in the 1940 Act, as amended
from time to time;
(b) The "Trust" refers to Fifth Third Funds;
(c) "Class" refers to the division of Shares
representing any series into two or more classes as provided
in Article III, Section 1 hereof;
(d) "Series" refers to the one or more separate
investment portfolios of the Trust into which the assets and
liabilities of the Trust may be divided and the Shares of the
Trust representing the beneficial interest of Shareholders in
such respective portfolios;
(e) "Series Company" refers to the form of a
registered open-end investment company described in Section
18(f)(2) of the 1940 Act or in any successor statutory
provision;
(f) "Shareholder" means a record owner of Shares of
any Series or Class;
(g) The "Trustees" refer to the individual Trustees
in their capacity as Trustees hereunder of the Trust and their
successor or successors for the time being in office as such
Trustees;
(h) "Shares" means the equal proportionate units of
interest into which the beneficial interest in the Trust shall
be divided from time to time, or if more than one Series or
Class of Shares is authorized by the Trustees, the equal
proportionate units into which each Series or Class of Shares
shall be divided from time to time and includes fractions of
Shares as well as whole Shares; and
(i) The "1940 Act" refers to the Investment Company
Act of 1940, and the Rules and Regulations thereunder,
(including any exemptions granted thereunder) as amended from
time to time.
ARTICLE II
PURPOSE OF TRUST
The purpose of this Trust is to provide investors a continuous source
of managed investments by investing primarily in securities (including options)
and also in debt instruments, commodities, commodity contracts and options
thereon.
ARTICLE III
BENEFICIAL INTEREST
Section 1. Shares of Beneficial Interest.
--------- ------------------------------
The Shares of the Trust shall be issued in one or more series as the
Trustees may, without Shareholder approval, authorize. The beneficial interest
in the Trust shall at all times be divided into transferable Shares, without par
value. Subject to the provisions of Section 5 of this Article III, each Share
shall have voting rights as provided in Article VIII hereof, and holders of the
Shares of any Series shall be entitled to receive dividends, when and as
declared with respect thereto in the manner provided in Article X, Section 1
hereof. The Trustees may, without Shareholder approval, divide the Shares of any
series into two or more classes. Unless the Trustees have authorized the
issuance of Shares of a Series in two or more Classes, each Share of a Series
shall represent an equal proportionate interest in the assets and liabilities of
the Series with each other Share of the same Series, none having priority or
preference over another. If the Trustees have authorized the issuance of Shares
of a Series in two or more Classes, then the Classes may have such variations as
to dividend, redemption, and voting rights, net asset values, expenses borne by
the Classes, and other matters as the Trustees have authorized provided that
each Share of a Class
shall represent an equal proportionate interest in the assets and liabilities of
the Class with each other Share of the same Class, none having priority or
preference over another. The number of Shares authorized shall be unlimited. The
Trustees may from time to time divide or combine the Shares of any Series or
Class into a greater or lesser number without thereby changing the proportionate
beneficial interests in the Series or Class.
Section 2. Ownership of Shares.
--------- -------------------
The ownership of Shares shall be recorded in the books of the Trust or
a transfer agent which books shall be maintained separately for the Shares of
each Series or Class. The Trustees may make such rules as they consider
appropriate for the transfer of Shares and similar matters. The record books of
the Trust or any transfer agent, as the case may be, shall be conclusive as to
who are the Shareholders of each Series or Class and as to the number of Shares
of each Series or Class held from time to time by each.
Section 3. Investment in the Trust.
--------- -----------------------
The Trustees shall accept investments in the Trust from such persons
and on such terms as they may from time to time authorize. After the date of the
initial contribution of capital (which shall occur prior to the initial public
offering of Shares), the number of Shares to represent the initial contribution
shall be considered as outstanding and the amount received by the Trustees on
account of the contribution shall be treated as an asset of the Trust to be
allocated among any Series or Classes in the manner described in Section 5(a) of
this Article. Subsequent to such initial contribution of capital, Shares
(including Shares which may have been redeemed or repurchased by the Trust) may
be issued or sold at a price which will net the relevant Series or Class, as the
case may be, before paying any taxes in connection with such issue or sale, not
less than the net asset value (as defined in Article X, Section 3) thereof;
provided, however, that the Trustees may in their discretion impose a sales
charge upon investments in the Trust.
Section 4. No Pre-emptive Rights.
--------- ---------------------
Shareholders shall have no pre-emptive or other right to subscribe to
any additional Shares or other securities issued by the Trust.
Section 5. Establishment and Designation of Series or Class.
--------- ------------------------------------------------
Shares of any Series or Class of the Trust shall have the following
relative rights and preferences:
(a) Assets belonging to Series or Class. All
consideration received by the Trust for the issue or sale of
Shares of a particular Series or Class, together with all
assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof from
whatever source derived, including, without limitation, 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 or Class for all
purposes, subject only to the rights of creditors, and shall
be so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds
thereof, from whatever source derived, including, without
limitation, 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, are herein referred to as "assets belonging to"
that Series or Class. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as belonging to
any particular Series or Class (collectively "General
Assets"), the Trustees shall allocate such General Assets to,
between or among any one or more of the Series or Classes
established and designated from time to time in such manner
and on such basis as they, in their sole discretion, deem fair
and equitable, and any General Assets so allocated to a
particular Series or Class shall belong to that Series or
Class. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Series or
Classes for all purposes.
(b) Liabilities Belonging to Series or Class. The
assets belonging to each particular Series or Class shall be
charged with the liabilities of the Trust in respect to that
Series or Class and all expenses, costs, charges and reserves
attributable to that Series or Class, and any general
liabilities of the Trust which are not readily identifiable as
belonging to any particular Series or Class shall be allocated
and charged by the Trustees to and among any one or more of
the Series or Classes 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 so charged to a Series
or Class are herein referred to as "liabilities belonging to"
that Series or Class. Each allocation of liabilities belonging
to a Series or Class by the Trustees shall be conclusive and
binding upon the Shareholders of all Series or Classes for all
purposes.
(c) Dividends, Distributions, Redemptions,
Repurchases and Indemnification. Notwithstanding any other
provisions of this Declaration, including, without limitation,
Article X, no dividend or distribution (including, without
limitation, any distribution paid upon termination of the
Trust or of any Series or Class) with respect to, nor any
redemption or repurchase of the Shares of any Series or Class
shall be effected by the Trust other than from the assets
belonging to such Series or Class, nor except as specifically
provided in Section 1 of Article XI hereof, shall any
Shareholder of any particular Series or Class otherwise have
any right or claim against the assets belonging to any other
Series or Class except to the extent that such Shareholder has
such a right or claim hereunder as a Shareholder of such other
Series or Class.
(d) Voting. Notwithstanding any of the other
provisions of this Declaration, including, without limitation,
Section 1 of Article VIII, only Shareholders of a particular
Series or Class shall be entitled to vote on any matters
affecting such Series or Class. Except with respect to matters
as to which any particular Series or Class is affected, all of
the Shares of each Series or Class shall, on matters as to
which such Series or Class is entitled to vote, vote with
other Series or Classes so entitled as a single class.
Notwithstanding the foregoing, with respect to matters which
would otherwise be voted on by two or more Series or Classes
as a single class, the Trustees may, in their sole discretion,
submit such matters to the Shareholders of any or all such
Series or Classes, separately.
(e) Fraction. Any fractional Share of a Series or
Class shall carry proportionately all the rights and
obligations of a whole Share of that Series or Class,
including rights with respect to voting, receipt of dividends
and distributions, redemption of Shares and termination of the
Trust or of any Series or Class.
(f) Exchange Privilege. The Trustees shall have the
authority to provide that the holders of Shares of any Series
or Class shall have the right to exchange said Shares for
Shares of one or more other Series or Classes in accordance
with such requirements and procedures as may be established by
the Trustees.
(g) Combination of Series or Classes. The Trustees
shall have the authority, without the approval of the
Shareholders of any Series or Class, unless otherwise required
by applicable law, to combine the assets and liabilities
belonging to a single Series or Class with the assets and
liabilities of one or more other Series or Classes.
(h) Elimination of Series or Classes. At any time
that there are no Shares outstanding of any particular Series
or Class previously established and designated, the Trustees
may amend this Declaration of Trust to abolish that Series or
Class and to rescind the establishment and designation
thereof.
ARTICLE IV
THE TRUSTEES
Section 1. Management of the Trust.
--------- -----------------------
The business and affairs of the Trust shall be managed by the Trustees,
and they shall have all powers necessary and desirable to carry out that
responsibility. The Trustees who shall serve until the election of Trustees at
the Meeting of Shareholders subsequent to the initial public offering of Shares
shall be ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇.
Section 2. Election of Trustees at Meeting of Shareholders.
--------- -----------------------------------------------
On a date fixed by the Trustees, which shall be subsequent to the
initial public offering of Shares, the Shareholders shall elect Trustees. The
number of Trustees shall be determined by the Trustees pursuant to Article IV,
Section 5.
Section 3. Term of Office of Trustees.
--------- --------------------------
The Trustees shall hold office during the lifetime of this Trust, and
until its termination as hereinafter provided; except (a) that any Trustee may
resign his office at any time by written instrument signed by him and delivered
to the other Trustees, which shall take effect upon such delivery or upon such
later date as is specified therein; (b) that any Trustee may be removed at any
time by written instrument signed by at least two-thirds of the number of
Trustees prior to such removal, specifying the date when such removal shall
become effective; (c) that any Trustee who requests in writing to be retired or
who has become mentally or physically incapacitated may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his retirement; and (d) a Trustee may be removed at any special meeting of
Shareholders of the Trust by a vote of two-thirds of the outstanding Shares.
Section 4. Termination of Service and Appointment of Trustees.
--------- --------------------------------------------------
In case of the death, resignation, retirement, removal or mental or
physical incapacity of any of the Trustees, or in case a vacancy shall, by
reason of an increase in number, or for any other reason, exist, the remaining
Trustees shall fill such vacancy by appointing such other person as they in
their discretion shall see fit. Such appointment shall be effected by the
signing of a written instrument by a majority of the Trustees in office. An
appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees. As soon as any
Trustee so appointed shall have accepted this Trust, the trust estate shall vest
in the new Trustee or Trustees, together with the continuing Trustees, without
any further act or conveyance, and he shall be deemed a Trustee hereunder. Any
appointment authorized by this Section 4 is subject to the provisions of Section
16(a) of the 1940 Act.
Section 5. Number of Trustees.
--------- ------------------
The number of Trustees, not less than three (3) nor more than twenty
(20) serving hereunder at any time, shall be determined by the Trustees
themselves.
Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled or while any Trustee is physically or mentally incapacitated,
the other Trustees shall have all the powers hereunder and the certificate
signed by a majority of the other Trustees of such vacancy, absence or
incapacity, shall be conclusive, provided, however, that no vacancy which
reduces the number of Trustees below three (3) shall remain unfilled for a
period longer than six calendar months.
Section 6. Effect of Death, Resignation, etc. of a Trustee.
--------- -----------------------------------------------
The death, resignation, retirement, removal, or mental or physical
incapacity of the Trustees, or any one of them, shall not operate to annul the
Trust or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust.
Section 7. Ownership of Assets.
--------- -------------------
The assets belonging to each Series or Class shall be held separate and
apart from any assets now or hereafter held in any capacity other than as
Trustee hereunder by the Trustees or any successor Trustee. All of the assets
belonging to each Series or Class or owned by the Trust shall at all times be
considered as vested in the Trustees. No Shareholder shall be deemed to have a
severable ownership interest in any individual asset belonging to any Series or
Class or owned by the Trust or any right of partition or possession thereof, but
each Shareholder shall have a proportionate undivided beneficial interest in a
Series or Class.
ARTICLE V
POWERS OF THE TRUSTEES
Section 1. Powers.
--------- ------
The Trustees in all instances shall act as principals, and are and
shall be free from the control of the Shareholders. The Trustees shall have full
power and authority to do any and all acts and to make and execute any and all
contracts and instruments that they may consider necessary or appropriate in
connection with the management of the Trust or a Series or Class. The Trustees
shall not be bound or limited by present or future laws or customs in regard to
trust investments, but shall have full authority and power to make any and all
investments which they, in their uncontrolled discretion, shall deem proper to
accomplish the purpose of this Trust. Without limiting the foregoing, the
Trustees shall have the following specific powers and authority, subject to any
applicable limitation in this Declaration of Trust or in the By-Laws of the
Trust:
(a) To buy, and invest funds in their hands in
securities including, but not limited to, common stocks,
preferred stocks, bonds, debentures, warrants and rights to
purchase securities, options, certificates of beneficial
interest, money market instruments, notes or other evidences
of indebtedness issued by any corporation, trust or
association, domestic or foreign, or issued or guaranteed by
the United States of America or any agency or instrumentality
thereof, by the government of any foreign country, by any
State of the United States, or by any political subdivision or
agency or instrumentality of any State or foreign country, or
in "when- issued" or "delayed-delivery" contracts for any such
securities, or in any repurchase agreement or reverse
repurchase agreement, or in debt instruments, commodities,
commodity contracts and options thereon, or to retain assets
belonging to each and every Series or Class in cash, and from
time to time to change the investments of the assets belonging
to each Series or Class;
(b) To adopt By-Laws of the Trust not inconsistent
with the Declaration of Trust providing for the conduct of the
business of the Trust and to amend and repeal them to the
extent that they do not reserve that right to the
Shareholders;
(c) To Elect and remove such officers of the Trust
and appoint and terminate such agents of the Trust as they
consider appropriate;
(d) To appoint or otherwise engage a bank or trust
company as custodian of any assets belonging to any Series or
Class subject to any conditions set forth in this Declaration
of Trust or in the By-Laws;
(e) To appoint or otherwise engage transfer agents,
dividend disbursing agents, Shareholder servicing agents,
investment advisers, sub-investment advisers, principal
underwriters, administrative service agents, and such other
agents as the Trustees may from time to time appoint or
otherwise engage;
(f) To provide for the distribution of any Shares of
any Series or Class either through a principal underwriter in
the manner hereinafter provided for or by the Trust itself, or
both;
(g) To set record dates in the manner hereinafter
provided for;
(h) To delegate such authority as they consider
desirable to a committee or committees composed of Trustees,
including without limitation, an Executive Committee, or to
any officers of the Trust and to any agent, custodian or
underwriter;
(i) To sell or exchange any or all of the assets
belonging to one or more Series or Classes, subject to the
provisions of Article XII, Section 4(b) hereof;
(j) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or
property; and to execute and deliver 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 or property as the Trustees shall
deem proper;
(k) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of
securities;
(l) To hold any security or property in a form not
indicating any trust, whether in bearer, unregistered or other
negotiable form; or either in its own name or in the name of a
custodian or a nominee or nominees, subject in either case to
proper safeguards according to the usual practice of
Massachusetts trust companies or investment companies;
(m) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
concern, any security of which belongs to any Series or Class;
to consent to any contract, lease, mortgage, purchase, or sale
of property by such corporation or concern, and to pay calls
or subscriptions with respect to any security which belongs to
any Series or Class;
(n) To engage in and to prosecute, compound,
compromise, abandon, or adjust, by arbitration, or otherwise,
any actions, suits, proceedings, disputes, claims, demands,
and things relating to the Trust, and out of the assets
belonging to any Series or Class to pay, or to satisfy, any
debts, claims or expenses incurred in connection therewith,
including those of litigation, upon any evidence that the
Trustees may deem sufficient (such powers shall include
without limitation any actions, suits, proceedings, disputes,
claims, demands and things relating to the Trust wherein any
of the Trustees may be named individually and the subject
matter of which arises by reason of business for or on behalf
of the Trust);
(o) To make distributions of income and of capital
gains to Shareholders;
(p) To borrow money;
(q) From time to time to issue and sell the Shares of
any Series or Class either for cash or for property whenever
and in such amounts as the Trustees may deem desirable, but
subject to the limitation set forth in Section 3 of Article
III.
(r) To purchase insurance of any kind, including,
without limitation, insurance on behalf of any person who is
or was a Trustee, Officer, employee or agent of the Trust, or
is or was serving at the request of the Trust as a Trustee,
Director, Officer, agent or employee of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such.
(s) To sell, exchange, lend, pledge, mortgage,
hypothecate, lease, or write options with respect to or
otherwise deal in any property rights relating to any or all
of the assets belonging to any Series or Class;
The Trustees shall have all of the powers set forth in this Section 1
with respect to all assets and liabilities of each Series and Class.
Section 2. Principal Transactions.
--------- ----------------------
The Trustees shall not cause the Trust on behalf of any Series or Class
to buy any securities (other than Shares) from or sell any securities (other
than Shares) to, or lend any assets belonging to any Series or Class to any
Trustee or officer or employee of the Trust or any firm of which any such
Trustee or officer is a member acting as principal unless permitted by the 1940
Act, but the Trust may employ any such other party or any such person or firm or
company in which any such person is an interested person in any capacity not
prohibited by the 1940 Act.
Section 3. Trustees and Officers as Shareholders.
--------- -------------------------------------
Any Trustee, officer or other agent of the Trust or any Series or Class
may acquire, own and dispose of Shares of any Series or Class to the same extent
as if he were not a Trustee, officer or agent; and the Trustees may issue and
sell or cause to be issued or sold Shares of any Series or Class to and buy such
Shares from any such person or any firm or company in which he is an interested
person subject only to the general limitations herein contained as to the sale
and purchase of such Shares; and all subject to any restrictions which may be
contained in the By-Laws.
Section 4. Parties to Contract.
--------- -------------------
The Trustees may enter into any contract of the character described in
Article VII or in Article IX hereof or any other capacity not prohibited by the
1940 Act with any corporation, firm, trust or association, although one or more
of the shareholders, Trustees, officers, employees or agents of the Trust or any
Series or Class or their affiliates may be an officer, director, trustee,
shareholder or interested person of such other party to the contract, and no
such contract shall be invalidated or rendered voidable by reason of the
existence of any such relationship, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust or any Series or Class under or by reason of said contract
or accountable for any profit realized directly or indirectly therefrom, in the
absence of actual fraud. The same person (including a firm, corporation, trust
or association) may be the other party to contracts entered into pursuant to
Article VII or Article IX or any other capacity not prohibited by the 1940 Act,
and any individual may be financially interested or otherwise an interested
person of persons who are parties to any or all of the contracts mentioned in
this Section 4.
ARTICLE VI
TRUSTEES' EXPENSES AND COMPENSATION
Section 1. Trustee Reimbursement.
--------- ---------------------
The Trustees shall be reimbursed from the assets belonging to each
particular Series or Class for all of such Trustees' expenses as such expenses
are allocated to and among any one or more of the Series or Classes pursuant to
Article III, Section 5(b), including, without limitation, expenses of organizing
the Trust or any Series or Class and continuing its or their existence; fees and
expenses of Trustees and Officers of the Trust; fees for investment advisory
services, administrative services and principal underwriting services provided
for in Article VII, Sections 1, 2 and 3; fees and expenses of preparing and
printing Registration Statements under the Securities Act of 1933 and the 1940
Act and any amendments thereto; expenses of registering and qualifying the Trust
and any Series or Class and the Shares of any Series or Class under federal and
state laws and regulations; expenses of preparing, printing and distributing
prospectuses and any amendments thereto sent to shareholders, underwriters,
broker-dealers and to investors who may be considering the purchase of Shares;
expenses of registering, licensing or other authorization of the Trust or any
Series or Class as a broker-dealer and of its or their officers as agents and
salesmen under federal and state laws and regulations; interest expenses, taxes,
fees and commissions of every kind; expenses of issue (including cost of share
certificates), purchases, repurchases and redemptions of Shares, including
expenses attributable to a program of periodic issue; charges and expenses of
custodians, transfer agents, dividend disbursing agents, Shareholder servicing
agents and registrars; printing and mailing costs; auditing, accounting and
legal expenses; reports to Shareholders and governmental officers and
commissions; expenses of meetings of Shareholders and proxy solicitations
therefor; insurance expenses; association membership dues and nonrecurring items
as may arise, including all losses and liabilities by them incurred in
administering the Trust and any Series or Class, including expenses incurred in
connection with litigation, proceedings and claims and the obligations of the
Trust under Article XI hereof and the By-Laws to indemnify its Trustees,
Officers, employees, shareholders and agents, and any contract obligation to
indemnify principal underwriters under Section 3 of Article VII; and for the
payment of such expenses, disbursements, losses and liabilities, the Trustees
shall have a lien on the assets belonging to each Series or Class prior to any
rights or interests of the Shareholders of any Series or Class. This section
shall not preclude the Trust from directly paying any of the aforementioned fees
and expenses.
Section 2. Trustee Compensation.
--------- --------------------
The Trustees shall be entitled to compensation from the Trust from the
assets belonging to any Series or Class for their respective services as
Trustees, to be determined from time to time by vote of the Trustees, and the
Trustees shall also determine the compensation of all Officers, consultants and
agents whom they may elect or appoint. The Trust may pay out of the assets
belonging to any Series or Class any Trustee or any corporation, firm, trust or
other entity of which a Trustee is an interested person for services rendered in
any capacity not prohibited by the 1940 Act, and such payments shall not be
deemed compensation for services as a Trustee under the first sentence of this
Section 2 of Article VI.
ARTICLE VII
INVESTMENT ADVISER, ADMINISTRATIVE SERVICES, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 1. Investment Adviser.
--------- ------------------
Subject to a Majority Shareholder Vote by the relevant Series or Class,
the Trustees may in their discretion from time to time enter into an investment
advisory contract whereby the other party to such contract shall undertake to
furnish the Trustees investment advisory services for such Series or Class upon
such terms and conditions and for such compensation as the Trustees may in their
discretion determine. Subject to applicable legal requirements under the
Investment Company Act of 1940, the investment adviser may enter into a
sub-investment advisory contract to receive investment advice and/or statistical
and factual information from the sub-investment adviser for such Series or Class
upon such terms and conditions and for such compensation as the Trustees, in
their discretion, may agree. Notwithstanding any provisions of this Declaration
of Trust, the Trustees may authorize the investment adviser or sub-investment
adviser or any person furnishing administrative personnel and services as set
forth in Article VII, Section 2 (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect purchases,
sales or exchanges of portfolio securities belonging to a Series or Class on
behalf of the Trustees or may authorize any officer or Trustee to effect such
purchases, sales, or exchanges pursuant to recommendations of the investment
adviser (and all without further action by the Trustees). Any such purchases,
sales and exchanges shall be deemed to have been authorized by the Trustees. The
Trustees may also authorize the investment adviser to determine what firms shall
be employed to effect transactions in securities for the account of a Series or
Class and to determine what firms shall participate in any such transactions or
shall share in commissions or fees charged in connection with such transactions.
Section 2. Administrative Services.
--------- -----------------------
The Trustees may in their discretion from time to time contract for
administrative personnel and services whereby the other party shall agree to
provide the Trustees administrative personnel and services to operate the Trust
or a Series or Class on a daily basis, on such terms and conditions as the
Trustees may in their discretion determine. Such services may be provided by one
or more entities.
Section 3. Principal Underwriter.
--------- ---------------------
The Trustees may in their discretion from time to time enter into an
exclusive or nonexclusive contract or contracts providing for the sale of the
Shares of a Series or Class to net such Series or Class not less than the amount
provided in Article III, Section 3 hereof, whereby a Series or Class may either
agree to sell the Shares to the other party to the contract or appoint such
other party its sales agent for such shares. In either case, the contract shall
be on such terms and conditions (including indemnification of principal
underwriters allowable under applicable law and regulation) as the Trustees may
in their discretion determine not inconsistent with the provisions of this
Article VII; and such contract may also provide for the repurchase or sale of
Shares of a Series or Class by such other party
as principal or as agent of the Trust and may provide that the other party may
maintain a market for shares of a Series or Class.
Section 4. Transfer Agent.
--------- --------------
The Trustees may in their discretion from time to time enter into
transfer agency and shareholder services contracts whereby the other party shall
undertake to furnish a transfer agency and shareholder services. The contracts
shall be on such terms and conditions as the Trustees may in their discretion
determine not inconsistent with the provisions of this Declaration of Trust or
of the By-Laws. Such services may be provided by one or more entities.
ARTICLE VIII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers.
--------- -------------
Subject to the provisions set forth in Article III, Section 5(d), the
shareholders shall have power to vote, (i) for the election of Trustees as
provided in Article IV, Section 2; (ii) for the removal of Trustees as provided
in Article IV, Section 3(d); (iii) with respect to any investment adviser or
sub-investment adviser as provided in Article VII, Section 1; (iv) with respect
to the amendment of this Declaration of Trust as provided in Article XII,
Section 7; (v) to the same extent as the shareholders of a Massachusetts
business corporation as to whether or not a court action, proceeding or claim
should 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 law, by this Declaration of Trust,
or the By-Laws of the Trust or any regulation of the Trust or the Commission or
any State, or as the Trustees may consider desirable. Each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote, and each
fractional Share shall be entitled to a proportionate fractional vote. There
shall be no cumulative voting in the election of Trustees. Shares may be voted
in person or by proxy. Until Shares of a Series or Class are issued, the
Trustees may exercise all rights of Shareholders of such Series or Class with
respect to matters affecting such Series or Class, and may take any action with
respect to the Trust or such Series or Class required or permitted by law, this
Declaration of Trust or any By-Laws of the Trust to be taken by Shareholders.
Section 2. Meetings.
--------- --------
A Shareholders meeting shall be held as specified in Section 2 of
Article IV at the principal office of the Trust or such other place as the
Trustees may designate. Special meetings of the Shareholders may be called by
the Trustees or the Chief Executive Officer of the Trust and shall be called by
the Trustees upon the written request of Shareholders owning at least one-tenth
of the outstanding Shares of all Series and Classes entitled to vote.
Shareholders shall be entitled to at least fifteen days' notice of any meeting.
Section 3. Quorum and Required Vote.
--------- ------------------------
Except as otherwise provided by law, to constitute a quorum for the
transaction of any business at any meeting of Shareholders there must be
present, in person or by proxy, holders of more than fifty percent of the total
number of outstanding Shares of all Series and Classes entitled to vote at such
meeting. When any one or more Series or Classes is entitled to vote as a single
Series or Class, more than fifty percent of the shares of each such Series or
Class entitled to vote shall constitute a quorum at a Shareholder's meeting of
that Series or Class. If a quorum shall not be present for the purpose of any
vote that may properly come before the meeting, the Shares present in person or
by proxy and entitled to vote at such meeting on such matter may, by plurality
vote, adjourn the meeting from time to time to such place and time without
further notice than by announcement to be given at the meeting until a quorum
entitled to vote on such matter shall be present, whereupon any such matter may
be voted upon at the meeting as though held when originally convened. Subject to
any applicable requirement of law or of this Declaration of Trust or the
By-Laws, a plurality of the votes cast shall elect a Trustee, and all other
matters shall be decided by a majority of the votes cast and entitled to vote
thereon.
Section 4. Additional Provisions.
--------- ---------------------
The By-Laws may include further provisions for Shareholders' votes and
meetings and related matters.
ARTICLE IX
CUSTODIAN
The Trustees may, in their discretion, from time to time enter into
contracts providing for custodial and accounting services to the Trust or any
Series or Class. The contracts shall be on the terms and conditions as the
Trustees may in their discretion determine not inconsistent with the provisions
of this Declaration of Trust or of the By-Laws. Such services may be provided by
one or more entities, including one or more sub-custodians.
ARTICLE X
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions.
--------- -------------
(a) The Trustees may from time to time declare and
pay dividends to the Shareholders of any Series or Class, and
the amount of such dividends and the payment of them shall be
wholly in the discretion of the Trustees. Such dividends may
be accrued and automatically reinvested in additional Shares
(or fractions thereof) of the relevant Series or Class or paid
in cash or additional Shares of such Series or Class, all upon
such terms and conditions as the Trustees may prescribe.
(b) The Trustees may distribute in respect of any
fiscal year as dividends and as capital gains distributions,
respectively, amounts sufficient to enable any Series or Class
to qualify as a regulated investment company to avoid any
liability for federal income taxes in respect of that year.
(c) The decision of the Trustees as to what
constitutes income and what constitutes principal shall be
final, and except as specifically provided herein the decision
of the Trustees as to what expenses and charges of any Series
or Class shall be charged against principal and what against
the income shall be final. Any income not distributed in any
year may be permitted to accumulate and as long as not
distributed may be invested from time to time in the same
manner as the principal funds of any Series or Class.
(d) All dividends and distributions on Shares of a
particular Series or Class shall be distributed pro rata to
the holders of that Series or Class in proportion to the
number of Shares of that Series or Class held by such holders
and recorded on the books of the Trust or its transfer agent
at the date and time of record established for that payment.
Section 2. Redemptions and Repurchases.
--------- ---------------------------
(a) In case any Shareholder of record of any Series
or Class at any time desires to dispose of Shares of such
Series or Class recorded in his name, he may deposit a written
request (or such other form of request as the Trustees may
from time to time authorize) requesting that the Trust
purchase his Shares, together with such other instruments or
authorizations to effect the transfer as the Trustees may from
time to time require, at the office of the Transfer Agent, and
the Trust shall purchase his Shares out of assets belonging to
such Series or Class. The purchase price shall be the net
asset value of his shares reduced by any redemption charge as
the Trustees from time to time may determine.
Payment for such Shares shall be made by the Trust to the
Shareholder of record within that time period required under
the 1940 Act after the request (and, if required, such other
instruments or authorizations of transfer) is deposited,
subject to the right of the Trustees to postpone the date of
payment pursuant to Section 4 of this Article X. If the
redemption is postponed beyond the date on which it would
normally occur by reason of a declaration by the Trustees
suspending the right of redemption pursuant to Section 4 of
this Article X, the right of the Shareholder to have his
Shares purchased by the Trust shall be similarly suspended,
and he may withdraw his request (or
such other instruments or authorizations of transfer) from
deposit if he so elects; or, if he does not so elect, the
purchase price shall be the net asset value of his Shares
determined next after termination of such suspension
(reduced by any redemption charge), and payment therefor
shall be made within the time period required under the ▇▇▇▇
▇▇▇.
(b) The Trust may purchase Shares of a Series or
Class by agreement with the owner thereof at a purchase price
not exceeding the net asset value per Share (reduced by any
redemption charge) determined (1) next after the purchase or
contract of purchase is made or (2) at some later time.
(c) The Trust may pay the purchase price (reduced by
any redemption charge) in whole or in part by a distribution
in kind of securities from the portfolio of the relevant
Series or Class, taking such securities at the same value
employed in determining net asset value, and selecting the
securities in such manner as the Trustees may deem fair and
equitable.
Section 3. Net Asset Value of Shares.
--------- -------------------------
The net asset value of each Share of a Series or Class outstanding
shall be determined at such time or times as may be determined by or on behalf
of the Trustees. The power and duty to determine net asset value may be
delegated by the Trustees from time to time to one or more of the Trustees or
Officers of the Trust, to the other party to any contract entered into pursuant
to Section 1 or 2 of Article VII or to the custodian or to a transfer agent or
other person designated by the Trustees.
The net asset value of each Share of a Series or Class as of any
particular time shall be the quotient (adjusted to the nearer cent) obtained by
dividing the value, as of such time, of the net assets belonging to such Series
or Class (i.e., the value of the assets belonging to such Series or Class less
the liabilities belonging to such Series or Class exclusive of capital and
surplus) by the total number of Shares outstanding of the Series or Class at
such time in accordance with the requirements of the 1940 Act and applicable
provisions of the By-Laws of the Trust in conformity with generally accepted
accounting practices and principles.
The Trustees may declare a suspension of the determination of net asset
value for the whole or any part of any period in accordance with the 1940 Act.
Section 4. Suspension of the Right of Redemption.
--------- -------------------------------------
The Trustees may declare a suspension of the right of redemption or
postpone the date of payment for the whole or any part of any period in
accordance with the 1940 Act.
Section 5. Trust's Right to Redeem Shares.
--------- ------------------------------
The Trust shall have the right to cause the redemption of Shares of any
Series or Class in any Shareholder's account for their then current net asset
value and promptly make payment to the shareholder (which payment may be reduced
by any applicable redemption charge), if at any time the total investment in the
account does not have a minimum dollar value determined from time to time by the
Trustees in their sole discretion.
ARTICLE XI
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Limitation of Personal Liability and Indemnification of
Shareholders.
--------- --------------------------------------------------------
The Trustees, officers, employees or agents of the Trust shall have no
power to bind any Shareholder of any Series or Class personally or to call upon
such Shareholder for the payment of any sum of money or assessment whatsoever,
other than such as the Shareholder may at any time agree to pay by way of
subscription to any Shares or otherwise.
No Shareholder or former Shareholder of any Series or Class shall be
liable solely by reason of his being or having been a Shareholder for any debt,
claim, action, demand, suit, proceeding, judgment, decree, liability or
obligation of any kind, against, or with respect to the Trust or any Series or
Class arising out of any action taken or omitted for or on behalf of the Trust
or such Series or Class, and the Trust or such Series or Class shall be solely
liable therefor and resort shall be had solely to the property of the relevant
Series or Class of the Trust for the payment or performance thereof.
Each Shareholder or former Shareholder of any Series or Class (or their
heirs, executors, administrators or other legal representatives or, in case of a
corporate entity, its corporate or general successor) shall be entitled to be
indemnified and reimbursed by the Trust to the full extent of such liability and
the costs of any litigation or other proceedings in which such liability shall
have been determined, including, without limitation, the fees and disbursements
of counsel if, contrary to the provisions hereof, such Shareholder or former
Shareholder of such Series or Class shall be held to be personally liable. Such
indemnification and reimbursement shall come exclusively from the assets of the
relevant Series or Class.
The Trust shall, upon request by a Shareholder or former Shareholder,
assume the defense of any claim made against any Shareholder for any act or
obligation of the Trust or any Series or Class and satisfy any judgment thereon.
Section 2. Limitation of Personal Liability of Trustees, Officers,
Employees or Agents of the Trust.
--------- -------------------------------------------------------
No Trustee, officer, employee or agent of the Trust shall have the
power to bind any other Trustee, officer, employee or agent of the Trust
personally. The Trustees, officers, employees or agents of the Trust incurring
any debts, liabilities or obligations, or in taking or omitting any other
actions for or in connection with the Trust are, and each shall be deemed to be,
acting as Trustee, officer, employee or agent of the Trust and not in his own
individual capacity.
Trustees and officers of the Trust shall be liable for their willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee or officer, as the case may be,
and for nothing else.
Section 3. Express Exculpatory Clauses and Instruments.
--------- -------------------------------------------
The Trustees shall use every reasonable means to assure that all
persons having dealings with the Trust or any Series or Class shall be informed
that the property of the Shareholders and the Trustees, officers, employees and
agents of the Trust or any Series or Class shall not be subject to claims
against or obligations of the Trust or any other Series or Class to any extent
whatsoever. The Trustees shall cause to be inserted in any written agreement,
undertaking or obligation made or issued on behalf of the Trust or any Series or
Class (including certificates for Shares of any Series or Class) an appropriate
reference to the provisions of this Declaration, providing that neither the
Shareholders, the Trustees, the officers, the employees nor any agent of the
Trust or any Series or Class shall be liable thereunder, and that the other
parties to such instrument shall look solely to the assets belonging to the
relevant Series or Class for the payment of any claim thereunder or for the
performance thereof; but the omission of such provisions from any such
instrument shall not render any Shareholder, Trustee, officer, employee or agent
liable, nor shall the Trustee, or any officer, agent or employee of the Trust or
any Series or Class be liable to anyone for such omission. If, notwithstanding
this provision, any Shareholder, Trustee, officer, employee or agent shall be
held liable to any other person by reason of the omission of such provision from
any such agreement, undertaking or obligation, the Shareholder, Trustee,
officer, employee or agent shall be indemnified and reimbursed by the Trust.
ARTICLE XII
MISCELLANEOUS
Section 1. Trust is not a Partnership.
--------- --------------------------
It is hereby expressly declared that a trust and not a partnership is
created hereby.
Section 2. Trustee Action Binding, Expert Advice, No Bond or Surety.
--------- --------------------------------------------------------
The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. Subject to the provisions of Article
XI, the Trustees shall not be liable for errors of judgment or mistakes of fact
or law. The Trustees may take advice of counsel or other experts with respect to
the meaning and operation of this Declaration of Trust, and subject to the
provisions of Article XI, shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice. The Trustees
shall not be required to give any bond as such, nor any surety if a bond is
required.
Section 3. Establishment of Record Dates.
--------- -----------------------------
The Trustees may close the Share transfer books of the Trust maintained
with respect to any Series or Class for a period not exceeding sixty (60) days
preceding the date of any meeting of Shareholders of the Trust or any Series or
Class, or the date for the payment of any dividend or the making of any
distribution to Shareholders, or the date for the allotment of rights, or the
date when any change or conversion or exchange of Shares of any Series or Class
shall go into effect; or in lieu of closing the Share transfer books as
aforesaid, the Trustees may fix in advance a date, not exceeding sixty (60) days
preceding the date of any meeting of Shareholders of the Trust or any Series or
Class, or the date for the payment of any dividend or the making of any
distribution to Shareholders of any Series or Class, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares of any Series or Class shall go into effect, or the last day on which the
consent or dissent of Shareholders of any Series or Class may be effectively
expressed for any purpose, as a record date for the determination of the
Shareholders entitled to notice of, and, to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend or
distribution, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of shares, or to exercise the
right to give such consent or dissent, and in such case such Shareholders and
only such Shareholders as shall be Shareholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting, or to receive
payment of such dividend or distribution, or to receive such allotment or
rights, or to exercise such rights, as the case may be, notwithstanding, after
such date fixed aforesaid, any transfer of any Shares on the books of the Trust
maintained with respect to any Series or Class. Nothing in the foregoing
sentence shall be construed as precluding the Trustees from setting different
record dates for different Series or Classes.
Section 4. Termination of Trust.
--------- --------------------
(a) This Trust shall continue without limitation of
time but subject to the provisions of paragraphs (b), (c) and
(d) of this Section 4.
(b) The Trustees may, by majority action, with the
approval of the holders of more than fifty percent of the
outstanding Shares of each Series or Class entitled to vote
and voting separately by Series or Class, sell and convey the
assets of the Trust or any Series or Class to another trust or
corporation. Upon making provision for the payment of all
liabilities, by assumption or otherwise, the Trustees shall
distribute the remaining proceeds belonging to each Series or
Class ratably among the holders of the Shares of that Series
or Class then outstanding.
(c) Subject to a Majority Shareholder Vote by such
Series or Class, the Trustees may at any time sell and convert
into money all the assets of the Trust or any Series or Class.
Upon making provision for the payment of all outstanding
obligations, taxes and other liabilities, accrued or
contingent, belonging to each Series or Class, the Trustees
shall distribute the remaining assets belonging to each Series
or Class ratably among the holders of the outstanding Shares
of that Series or Class.
(d) Upon completion of the distribution of the
remaining proceeds of the remaining assets as provided in
paragraphs (b) and (c), the Trust or the applicable Series or
Class shall terminate and the Trustees shall be discharged of
any and all further liabilities and duties hereunder or with
respect thereto and the right, title and interest of all
parties shall be canceled and discharged.
Section 5. Offices of the Trust, Filing of Copies, Headings, Counterparts.
--------- --------------------------------------------------------------
The Trust shall maintain a usual place of business in Massachusetts,
which, initially, shall be ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, c/o CT Corporate Systems, Boston,
Massachusetts, and shall continue to maintain an office at such address unless
changed by the Trustees to another location in Massachusetts. The Trust may
maintain other offices as the Trustees may from time to time determine. The
original or a copy of this instrument and of each declaration of trust
supplemental 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 supplemental
declaration of trust shall be filed by the Trustees with the Massachusetts
Secretary of State and the Boston City Clerk, as well as any other governmental
office where such filing may from time to time be required. Headings are placed
herein for convenience of reference only and in case of any conflict, the text
of this instrument, rather than the headings shall control. This instrument may
be executed in any number of counterparts each of which shall be deemed an
original.
Section 6. Applicable Law.
--------- --------------
The Trust set forth in this instrument is created under and is to be
governed by and construed and administered according to the laws of The
Commonwealth of Massachusetts. The Trust shall be of the type commonly called a
Massachusetts business trust, and without limiting the provisions hereof, the
Trust may exercise all powers which are ordinarily exercised by such a trust.
Section 7. Amendments -- General.
--------- ---------------------
Prior to the initial issuance of Shares pursuant to Section 3 of
Article III, a majority of the Trustees then in office may amend or otherwise
supplement this instrument by making a Declaration of Trust supplemental hereto,
which thereafter shall form a part hereof. Subsequent to such initial issuance
of Shares, amendments or supplements to this instrument may be authorized by a
majority of the Trustees then in office and by the holders of a majority of the
Shares of all Series and classes then outstanding and entitled to vote thereon
(except that any amendments or supplements changing the name of the Trust or
pursuant to Section 8 hereunder may be made without shareholder approval), or by
any larger vote which may be required by applicable law or this Declaration of
Trust in any particular case, which amendment or supplement thereafter shall
form a part hereof. Any such amendment or supplement (which may be in the form
of a complete restatement) may be evidenced by either (i) a supplemental
Declaration of Trust signed by at least a majority of the Trustees then in
office or (ii) by a certificate of the President and Secretary of the Trust
setting forth such amendment or supplement and certifying that such amendment or
supplement has been duly authorized by the Trustees, and if required, by the
shareholders. Copies of the supplemental Declaration of Trust or the certificate
of the President and Secretary, as the case may be, shall be filed as specified
in Section 5 of this Article XII.
Section 8. Use of Name.
--------- -----------
The Trust acknowledges that The Fifth Third Bank has reserved the right
to grant the non-exclusive use of the name "Fifth Third" or any derivative
thereof to any other investment company, investment company portfolio,
investment adviser, distributor, or other business enterprise, and to withdraw
from the Trust or one or more Series or Classes any right to the use of the name
"Fifth Third".
IN WITNESS WHEREOF, the undersigned have executed this instrument the
day and year first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
/s/ J. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
-----------------------
J. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇