Focus Funds Series Inc CHARTER
Focus Funds Series Inc
CHARTER
This AGREEMENT AND DECLARATION OF FOCUS FUNDS SERIES is made on June 2, 2015 by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (together with all other persons from time to time duly elected,
qualified and serving as Directors in accordance with the provisions of Article II hereof, the "Directors");
NOW, THEREFORE, the Directors declare that all money and property contributed to the Focus Funds Series shall be held and managed in Focus Funds Series pursuant to this
Agreement and Declaration of Focus Funds Series.
ARTICLE I
NAME AND DEFINITIONS
Section 1. Name. The name of the Series created by this Agreement and Declaration of Series is “Focus Funds Series."
Section 2. Definitions. Unless otherwise provided or required by the context:
(a) "Administrator" means the party, other than the Focus Funds Series, to the contract described in Article III, Section 3 hereof.
(b) "By-laws" means the By-laws of the Focus Funds Series adopted by the
Directors, as amended from time to time, which By-laws are expressly herein incorporated by reference as part of the "governing instrument" within the meaning of the Nevada Act.
(c) "Class" means the class of Shares of a Series established pursuant to Article V.
(d) "Commission," "Interested Person" and "Principal Underwriter" have the meanings provided in the 1940 Act. Except as such term may be otherwise defined by the Directors in conjunction with the establishment of any Series of Shares, the term "vote of a majority of the Shares outstanding and entitled to vote" shall have the same meaning as is assigned to the term "vote of a majority of the outstanding voting securities" in the 1940 Act.
(e) "Covered Person" means a person so defined in Article IV,
Section 2.
(f) "Custodian" means any Person other than the Focus Funds Series who has
custody of any Focus Funds Series Property as required by Section 17(f) of the 1940
Act, but does not include a system for the central handling of securities described in said Section 17(f).
(g) "Declaration" shall mean this Agreement and Declaration of Focus Funds Series, as amended or restated from time to time. Reference in this Declaration of Focus Funds
Series to "Declaration," "hereof," "herein," and "hereunder" shall be deemed to refer to this Declaration rather than exclusively to the article or section in which such words appear.
(h) "Nevada Act" means Nevada Code entitled "Treatment of Nevada Business Focus Funds Series, Inc" as amended from time to time.
(i) "Distributor" means the party, other than the Focus Funds Series, to the contract described in Article III, Section 1 hereof.
(j) "His" shall include the feminine and neuter, as well as the masculine, genders.
(k) "Investment Adviser" means the party, other than the Focus Funds Series, to the contract described in Article III, Section 2 hereof.
(l) "Net Asset Value" means the net asset value of each Series of the Focus Funds Series, determined as provided in Article VI, Section 3.
(m) "Person" means and includes individuals, corporations, partnerships, Focus Funds Series, associations, joint ventures, estates and other entities, and governments and agencies and political subdivisions, thereof, whether domestic or foreign.
(n) "Series" means a series of Shares established pursuant to Article V.
(o) "Shareholder" means a record owner of Outstanding Shares;
(p) "Shares" means the equal proportionate transferable units of interest into which the beneficial interest of each Fund or Class is divided from time to time (including whole Shares and fractions of Shares). "Outstanding Shares" means Shares shown in the books of the Focus Funds Series or its transfer agent as then issued and outstanding, but does not include Shares which have been repurchased or redeemed by the Focus Funds Series and which are held in the treasury of the Focus Funds Series.
(q) " Transfer Agent" means any Person other than the Focus Funds Series who maintains the Shareholder records of the Focus Funds Series, such as the list of Shareholders, the number of Shares credited to each account, and the like.
(r) "Focus Funds Series" means Focus Funds Series Inc established hereby, and reference to the Focus Funds Series, when applicable to one or more Series, refers to that Series.
(s) " Directors" means the person who has signed this Declaration of Focus Funds Series, so long as he shall continue in office in accordance with the terms hereof, and all other persons who may from time to time be duly qualified and serving as Directors in accordance with Article II, in all cases in their capacities as Directors hereunder.
(t) "Focus Funds Series Property" means any and all property, real or personal, tangible or intangible, which is owned or held by or for the Focus Funds Series or any Series or the Directors on behalf of the Focus Funds Series or any Series.
(u) The "1940 Act" means the Investment Company Act of 1940, as amended from time to time.
ARTICLE II
THE DIRECTORS
Section 1. Management of the Focus Funds Series. The business and affairs of the
Focus Funds Series shall be managed by or under the direction of the Directors, and they shall
have all powers necessary or desirable to carry out that responsibility. The Directors may execute all instruments and take all action they deem necessary or desirable to promote the interests of the Focus Funds Series. Any determination made by the Directors in good faith as to what is in the interests of the Focus Funds Series shall be conclusive. In construing the provisions of this Declaration, the presumption shall be in favor of a grant of power to the Directors.
Section 2. Powers. The Directors in all instances shall act as principals, free of the control of the Shareholders. The Directors shall have full power and authority to take or refrain from taking any action and to execute any contracts and instruments that they may consider necessary or desirable in the management of the Focus Funds Series. The Directors shall not in any way be bound or limited by current or future laws or customs applicable to Focus Funds Series investments, but shall have full power and authority to make any investments which they, in their sole discretion, deem proper to accomplish the purposes of the Focus Funds Series. The Directors may exercise all of their powers without recourse to any court or other authority. Subject to any applicable limitation herein or in the By-laws or resolutions of the Focus Funds Series, the Directors shall have power and authority, without limitation:
(a)
To operate as and carry on the business of an investment company, and exercise all the powers necessary and appropriate to the conduct of such operations.
(b) To invest in, hold for investment, or reinvest in, cash; securities, including common, preferred and preference stocks; warrants; subscription rights; profit-sharing interests or participations and all other contracts for or evidence of equity interests; bonds, debentures, bills, time notes and all other evidences of indebtedness; negotiable or non-negotiable instruments; government securities, including securities of any state, municipality or other political subdivision thereof, or any governmental or quasi-governmental agency or instrumentality; and money market instruments including bank certificates of deposit, finance paper, commercial paper, bankers' acceptances and all kinds of repurchase agreements, of any corporation, company, Focus Funds Series, association, firm or other business organization however established, and of any country, state, municipality or other political subdivision, or any governmental or quasi-governmental agency or instrumentality; or any other security, property or instrument in which the Focus Funds Series or any of its Series shall be authorized to invest.
(c) To acquire (by purchase, subscription or otherwise), tohold, to trade in and deal in, to acquire any rights or options topurchase or sell, to sell or otherwise dispose of, to lend and to pledge any such securities, to enter into repurchase agreements, reverse repurchase agreements, firm commitment agreements and forward
foreign currency exchange contracts, to purchase and sell options on
securities, securities indices, currency and other financial assets,
futures contracts and options on futures contracts of all descriptions
and to engage in all types of hedging and risk-management transactions.
(d) To exercise all rights, powers and privileges of ownership
or interest in all securities and repurchase agreements included in the
Focus Funds Series Property, including the right to vote thereon and otherwise act
with respect thereto and to do all acts for the preservation,
protection, improvement and enhancement in value of all such securities
and repurchase agreements.
(e) To acquire (by purchase, lease or otherwise) and to hold,
use, maintain, develop and dispose of (by sale or otherwise) any
property, real or personal, including cash or foreign currency, and any
interest therein.
(f) To borrow money or other property in the name of the Focus Funds Series
exclusively for Focus Funds Series purposes and in this connection issue notes or
other evidence of indebtedness; to secure borrowings by mortgaging,
pledging or otherwise subjecting as security the Focus Funds Series Property; and to
endorse, guarantee, or undertake the performance of any obligation or
engagement of any other Person and to lend Focus Funds Series Property.
(g) To aid by further investment any corporation, company,
Focus Funds Series, association or firm, any obligation of or interest in which is
included in the Focus Funds Series Property or in the affairs of which the Directors
have any direct or indirect interest; to do all acts and things
designed to protect, preserve, improve or enhance the value of such obligation or interest; and to guarantee or become surety on any or all
of the contracts, stocks, bonds, notes, debentures and other
obligations of any such corporation, company, Focus Funds Series, association or
firm.
(h) To adopt By-laws not inconsistent with this Declaration
providing for the conduct of the business of the Focus Funds Series and to amend and repeal them to the extent such right is not reserved to the Shareholders.
(i) To elect and remove such officers and appoint and
terminate such agents as they deem appropriate.
(j) To employ as custodian of any assets of the Focus Funds Series, subject
to any provisions herein or in the By-laws, one or more banks, Focus Funds Series
companies or companies that are members of a national securities
exchange, or other entities permitted by the Commission to serve as
such.
(k) To retain one or more transfer agents and shareholder
servicing agents, or both.
(l) To provide for the distribution of Shares either through a
Principal Underwriter as provided herein or by the Focus Funds Series itself, or
both, or pursuant to a distribution plan of any kind.
(m) To set record dates in the manner provided for herein or
in the By-laws.
(n) To delegate such authority as they consider desirable to
any officers of the Focus Funds Series and to any agent, independent contractor,
manager, investment adviser, custodian or underwriter.
(o) To hold any security or other property (i) in a form not
indicating any Focus Funds Series, whether in bearer, book entry, unregistered or
other negotiable form, or (ii) either in the Focus Funds Series's or Directors' own
name or in the name of a custodian or a nominee or nominees, subject to
safeguards according to the usual practice of business Focus Funds Series or
investment companies.
(p) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct investment
purposes, and with separate Shares representing beneficial interests in
such Series, and to establish separate Classes, all in accordance with
the provisions of Article V.
(q) To the full extent permitted by the
Nevada Act, to allocate assets, liabilities and expenses of the Focus Funds Series
to a particular Series and assets, liabilities and expenses to a
particular Class or to apportion the same between or among two or more
Funds or Classes, provided that any liabilities or expenses incurred
by a particular Fund or Class shall be payable solely out of the assets belonging to that Fund or Class as provided for in Article V,
Section 4.
(r) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or concern
whose securities are held by the Focus Funds Series; 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
held in the Focus Funds Series.
(s) To compromise, arbitrate, or otherwise adjust claims in
favor of or against the Focus Funds Series or any matter in controversy including,
but not limited to, claims for taxes.
(t) To make distributions of income, capital gains, returns of
capital (if any) and redemption proceeds to Shareholders in the manner
hereinafter provided for.
(u) To establish committees for such purposes, with such
membership, and with such responsibilities as the Directors may consider
proper, including a committee consisting of fewer than all of the
Directors then in office, which may act for and bind the Directors and
the Focus Funds Series with respect to the institution, prosecution, dismissal,
settlement, review or investigation of any legal action, suit or
proceeding, pending or threatened.
(v) To issue, sell, repurchase, redeem, cancel, retire,
acquire, hold, resell, reissue, dispose of and otherwise deal in
Shares; to establish terms and conditions regarding the issuance, sale,
repurchase, redemption, cancellation, retirement, acquisition, holding,
resale, reissuance, disposition of or dealing in Shares; and, subject
to Articles V and VI, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds
or property of the Focus Funds Series or of the particular Series with respect to
which such Shares are issued.
(w) To invest part or all of the Focus Funds Series Property (or part or
all of the assets of any Series), or to dispose of part or all of the
Focus Funds Series Property (or part or all of the assets of any Series) and invest the proceeds of such disposition, in securities issued by one or more
other investment companies registered under the 1940 Act all without
any requirement of approval by Shareholders. Any such other investment
company may (but need not) be a Focus Funds Series (formed under the laws of the
State of Nevada or of any other state) which is classified as a
partnership for federal income tax purposes.
(x) To carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary
or desirable to accomplish any purpose or to further any of the
foregoing powers, and to take every other action incidental to the
foregoing business or purposes, objects or powers.
(y) To sell or exchange any or all of the assets of the Focus Funds Series,
subject to Article IX, Section 4.
(z) To enter into joint ventures, partnerships and other
combinations and associations.
(aa) To join with other security holders in acting through a
committee, depositary, voting director or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or director, and to delegate to them such
power and authority with relation to any security (whether or not so
deposited or transferred) as the Directors shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and compensation
of such Committee, depositary or director as the Directors shall deem
proper;
(bb) To purchase and pay for entirely out of Focus Funds Series Property
such insurance as the Directors may deem necessary or appropriate for
the conduct of the business, including, without limitation, insurance
policies insuring the assets of the Focus Funds Series or payment of distributions
and principal on its portfolio investments, and, subject to applicable
law and any restrictions set forth in the By-laws, insurance policies
insuring the Shareholders, Directors, officers, employees, agents,
investment advisers, Principal Underwriters, or independent contractors
of the Focus Funds Series, individually, against all claims and liabilities of every
nature arising by reason of holding Shares, 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 as Director, officer,
employee, agent, investment adviser, Principal underwriter, or
independent contractor, including any action taken or omitted that may
be determined to constitute negligence, whether or not the Focus Funds Series would
have the power to indemnify such Person against liability;
(cc) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans and Focus Funds Series, 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
Directors, officers, employees and agents of the Focus Funds Series;
(dd) To enter into contracts of any kind and description;
(ee) To interpret the investment policies, practices or
limitations of any Fund or Class; and
(ff) To guarantee indebtedness and contractual obligations
of others.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Directors. Any action by one or more of the Directors in their capacity as
such hereunder shall be deemed an action on behalf of the Focus Funds Series or the
applicable Series, and not an action in an individual capacity. No one dealing
with the Directors shall be under any obligation to make any inquiry concerning
the authority of the Directors, or to see to the application of any payments made
or property transferred to the Directors or upon their order. In construing this
Declaration, the presumption shall be in favor of a grant of power to the
Directors.
Section 3. Certain Transactions. Except as prohibited by applicable
law, the Directors may, on behalf of the Focus Funds Series, buy any securities from or sell
any securities to, or lend any assets of the Focus Funds Series to, any Director or officer of
the Focus Funds Series or any firm of which any such Director or officer is a member acting as
principal, or have any such dealings with any investment adviser, administrator,
distributor or transfer agent for the Focus Funds Series or with any Interested Person of
such person. The Focus Funds Series may employ any such person or entity in which such person is an Interested Person, as broker, legal counsel, registrar, investment
adviser, administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
Section 4. Initial Directors; Election and Number of Directors. The
initial Director shall be the person initially signing this Declaration. The
number of Directors (other than the initial Director) shall be fixed from time to
time by a majority of the Directors; provided, that there shall be at least one
(1) Director and no more than fifteen (15). The Shareholders shall elect the
Directors (other than the initial Director) on such dates as the Directors may fixfrom time to time.
Section 5. Term of Office of Directors. Each Director shall hold office
for life or until his successor is elected or the Focus Funds Series terminates; except that
(a) any Director may resign by delivering to the other Directors or to any Focus Funds Series
officer a written resignation effective upon such delivery or a later date
specified therein; (b) any Director may be removed with or without cause at any
time by a written instrument signed by at least a majority of the then Directors,
specifying the effective date of removal; (c) any Director who requests to be
retired, or who is declared bankrupt or has become physically or mentally
incapacitated or is otherwise unable to serve, may be retired by a written
instrument signed by a majority of the other Directors, specifying the effective
date of retirement; and (d) any Director may be removed at any meeting of the
Shareholders by a vote of at least two-thirds of the Outstanding Shares.
Section 6. Vacancies; Appointment of Directors. Whenever a vacancy shall
exist in the Board of Directors, regardless of the reason for such vacancy, the
remaining Directors shall appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the limitations under the 1940
Act. Such appointment shall be made by a written instrument signed by a majority
of the Directors or by a resolution of the Directors, duly adopted and recorded in
the records of the Focus Funds Series, specifying the effective date of the appointment. The
Directors may appoint a new Director as provided above in anticipation of a
vacancy expected to occur because of the retirement, resignation or removal of a
Director, or an increase in number of Directors, provided that such appointment
shall become effective only at or after the expected vacancy occurs. As soon as
any such Director has accepted his appointment in writing, the Focus Funds Series estate shall
vest in the new Director, together with the continuing Directors, without any
further act or conveyance, and he shall be deemed a Director hereunder. The
Directors' power of appointment is subject to Section 16(a) of the 1940 Act.
Whenever a vacancy in the number of Directors shall occur, until such vacancy is
filled as provided in this Article II, the Directors in office, regardless of
their number, shall have all the powers granted to the Directors and shall
discharge all the duties imposed upon the Directors by the Declaration.
The death, declination to serve, resignation, retirement, removal or incapacity of
one or more Directors, or all of them, shall not operate to annul the Focus Funds Series or to
revoke any existing agency created pursuant to the terms of this Declaration of
Focus Funds Series.
Section 7. Temporary Vacancy or Absence. Whenever a vacancy in the Board of Directors shall occur, until such vacancy is filled, or while any
Director is absent from his domicile (unless that Director has made arrangements
to be informed about, and to participate in, the affairs of the Focus Funds Series during
such absence), or is physically or mentally incapacitated, the remaining
Directors shall have all the powers hereunder and their certificate as to such
vacancy, absence, or incapacity shall be conclusive. Any Director may, by power
of attorney, delegate his powers as Director for a period not exceeding six (6) months at any one time to any other Director or Directors.
Section 8. President. The Directors shall appoint one of their number to
be President of the Board of Directors. The President shall preside at all meetings
of the Directors, shall be responsible for the execution of policies established
by the Directors and the administration of the Focus Funds Series, and may be the chief
executive, financial and/or accounting officer of the Focus Funds Series.
Section 9. Action by the Directors. The Directors shall act by majority
vote at a meeting duly called at which a quorum is present, including a meeting
held by conference telephone, teleconference or other electronic media or
communication equipment by means of which all persons participating in the
meeting can communicate with each other; or by written consent of a majority of
Directors (or such greater number as may be required by applicable law) without a
meeting. A majority of the Directors shall constitute a quorum at any meeting.
Meetings of the Directors may be called orally or in writing by the President or
by any one of the Directors. Notice of the time, date and place of all Directors'
meetings shall be given to each Director as set forth in the By-laws; provided,
however, that no notice is required if the Directors provide for regular or
stated meetings. Notice need not be given to any Director who attends the meeting
without objecting to the lack of notice or who signs a waiver of notice either
before or after the meeting. The Directors by majority vote may delegate to any
Director or Directors or committee authority to approve particular matters or take
particular actions on behalf of the Focus Funds Series. Any written consent or waiver may be
provided and delivered to the Focus Funds Series by facsimile or other similar electronic
mechanism.
Section 10. Ownership of Focus Funds Series Property. The Focus Funds Series A is Property of the Focus Funds Series and of each Fund shall be held separate and apart from any assets now or hereafter held in any capacity other than as Director hereunder by the Directors or any successor Directors. Legal title in and beneficial ownership of all of the
assets of the Focus Funds Series shall at all times be considered as vested in the Focus Funds
Series, except that the Directors may cause legal title in and beneficial ownership of
any Focus Funds Series Property to be held by, or in the name of one or more of the Directors
acting for and on behalf of the Focus Funds Series, or in the name of any person as nominee
acting for and on behalf of the Focus Funds Series. No Shareholder shall be deemed to have a
severable ownership in any individual asset of the Focus Funds Series or of any Series or any right of partition or possession thereof, but each Shareholder shall have, as
provided in Article V, a proportionate undivided beneficial interest in the
Focus Funds Series A or Class thereof represented by Shares. The Shares shall be personal property giving only the rights specifically set forth in this Focus Funds Series
Instrument. The Focus Funds Series, or at the determination of the Directors one or more of
the Directors or a nominee acting for and on behalf of the Focus Funds Series, shall be deemed
to hold legal title and beneficial ownership of any income earned on securities
of the Focus Funds Series issued by any business entities formed, organized, or existing
under the laws of any jurisdiction, including the laws of any foreign country.
Upon the resignation or removal of a Director, or his otherwise ceasing to be a
Director, he shall execute and deliver such documents as the remaining Directors
shall require for the purpose of conveying to the Focus Funds Series or the remaining
Directors any Focus Funds Series Property held in the name of the resigning or removed
Director. Upon the incapacity or death of any Director, his legal representative
shall execute and deliver on his behalf such documents as the remaining Directors
shall require as provided in the preceding sentence.
Section 11. Effect of Directors Not Serving. The death, resignation,
retirement, removal, incapacity or inability or refusal to serve of the
Directors, or any one of them, shall not operate to annul the Focus Funds Series or to revoke
any existing agency created pursuant to the terms of this Declaration.
Section 12. Directors, etc. as Shareholders. Subject to any restrictions
in the By-laws, any Director, officer, agent or independent contractor of the
Focus Funds Series may acquire, own and dispose of Shares to the same extent as any other
Shareholder; the Directors may issue and sell Shares to and buy Shares from any
such person or any firm or company in which such person is interested, subject
only to any general limitations herein.
Section 13. Series Directors. In connection with the establishment of
one or more Funds or Classes, the Directors establishing such Fund or Class
may appoint, to the extent permitted by the Nevada Act, separate Directors with
respect to such Funds or Classes (the "Series Directors"). Series Directors may,
but are not required to, serve as Directors of the Focus Funds Series A or
Class of the Focus Funds Series. The Series Directors shall have, to the exclusion of any
other Director of the Focus Funds Series, all the powers and authorities of Directors hereunder
with respect to such Fund or Class, but shall have no power or authority with
respect to any other Fund or Class. Any provision of this Declaration relating
to election of Directors by Shareholders only shall entitle the Shareholders of a
Fund or Class for which Series Directors have been appointed to vote with
respect to the election of such Series Directors and the Shareholders of any
other Fund or Class shall not be entitled to participate in such vote. In the
event that Series Directors are appointed, the Directors initially appointing such Series Directors shall, without the approval of any Outstanding Shares, amend
either the Declaration or the By-laws to provide for the respective
responsibilities of the Directors and the Series Directors in circumstances where
an action of the Directors or Series Directors affects all Series of the Focus Funds Series
or two or more Series represented by different Directors.
ARTICLE III
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Underwriting Contract. The Directors may in their discretion
from time to time enter into an exclusive or non-exclusive distribution contract
or contracts providing for the sale of the Shares whereby the Directors may
either agree to sell the Shares to the other party to the contract or appoint
such other party as their sales agent for the Shares, and in either case on such
terms and conditions, if any, as may be prescribed in the By-laws, and such
further terms and conditions as the Directors may in their discretion determine
not inconsistent with the provisions of this Article III or of the By-laws; and
such contract may also provide for the repurchase of the Shares by such other
party as agent of the Directors.
Section 2. Advisory or Management Contract. The Directors may in their
discretion from time to time enter into one or more investment advisory or
management contracts or, if the Directors establish multiple Series, separate
investment advisory or management contracts with respect to one or more Series
whereby the other party or parties to any such contracts shall undertake to
furnish the Focus Funds Series or such Series management, investment advisory,
administration, accounting, legal, statistical and research facilities and
services, promotional or marketing activities, and such other facilities and
services, if any, as the Directors shall from time to time consider desirable and
all upon such terms and conditions as the Directors may in their discretion
determine. Notwithstanding any provisions of the Declaration, the Directors may
authorize the Investment Advisers or persons to whom the Investment Adviser
delegates certain or all of their duties, or any of them, under any such
contracts (subject to such general or specific instructions as the Directors may
from time to time adopt) to effect purchases, sales, loans or exchanges of
portfolio securities and other investments of the Focus Funds Series on behalf of the
Directors or may authorize any officer, employee or Director to effect such
purchases, sales, loans or exchanges pursuant to recommendations of such
Investment Advisers, or any of them (and all without further action by the
Directors). Any such purchases, sales, loans and exchanges shall be deemed to
have been authorized by all of the Directors.
Section 3. Administration Agreement. The Directors may in their
discretion from time to time enter into an administration agreement or, if the
Directors establish multiple Funds or Classes, separate administration
agreements with respect to each Fund or Class, whereby the other party to such
agreement shall undertake to manage the business affairs of the Focus Funds Series Equity
Cash Fund or Class thereof of the Focus Funds Series and furnish the Focus Funds Series A or a Fund or a Class thereof with office facilities, and shall be responsible for the ordinary clerical, bookkeeping and recordkeeping services at such office facilities, and
other facilities and services, if any, and all upon such terms and conditions as the Directors may in their discretion determine.
Section 4. Service Agreement. The Directors may in their discretion from
time to time enter into service agreements with respect to one or more Fundss or
Classes of Shares whereby the other parties to such Service Agreements will
provide administration and/or support services pursuant to administration plans
and service plans, and all upon such terms and conditions as the Directors in
their discretion may determine.
Section 5. Transfer Agent. The Directors may in their discretion from
time to time enter into a transfer agency and shareholder service contract
whereby the other party to such contract shall undertake to furnish transfer
agency and shareholder services to the Focus Funds Series. The contract shall have such terms
and conditions as the Directors may in their discretion determine not
inconsistent with the Declaration. Such services may be provided by one or more
Persons.
Section 6. Custodian. The Directors may appoint or otherwise engage one
or more banks or Focus Funds Series companies, each having aggregate capital, surplus and
undivided profits (as shown in its last published report) of at least two
million dollars ($2,000,000), or any other entity satisfying the requirements of
the 1940 Act, to serve as Custodian with authority as its agent, but subject to
such restrictions, limitations and other requirements, if any, as may be
contained in the By-laws of the Focus Funds Series. The Directors may also authorize the
Custodian to employ one or more sub-custodians, including such foreign banks and
securities depositories as meet the requirements of applicable provisions of the
1940 Act, and upon such terms and conditions as may be agreed upon between the
Custodian and such sub-custodian, to hold securities and other assets of the
Focus Funds Series and to perform the acts and services of the Custodian, subject to
applicable provisions of law and resolutions adopted by the Directors.
Section 7. Affiliations of Directors or Officers, Etc. The fact that:
(i) any of the Shareholders, Directors or officers of the
Focus Funds Series or any Series thereof is a shareholder, director,
officer, partner, director, employee, manager, adviser or
distributor of or for any partnership, corporation, Focus Funds Series,
association or other organization or of or for any parent or
affiliate of any organization, with which a contract of the
character described in this Article III or for services as
Custodian, Transfer Agent or disbursing agent or for related services may have been
or may hereafter be made, or that any
such organization, or any parent or affiliate thereof, is a
Shareholder of or has an interest in the Focus Funds Series, or that
(ii) any partnership, corporation, Focus Funds Series, association or
other organization with which a contract of the character
described in Sections 1, 2, 3 or 4 of this Article III or for
services as Custodian, Transfer Agent or disbursing agent or
for related services may have been or may hereafter be made
also has any one or more of such contracts with one or more
other partnerships, corporations, Focus Funds Series, associations or
other organizations, or has other business or interests, shall
not affect the validity of any such contract or disqualify any
Shareholder, Director or officer of the Focus Funds Series from voting upon
or executing the same or create any liability or
accountability to the Focus Funds Series or its Shareholders.
ARTICLE IV
COMPENSATION, LIMITATION OF
LIABILITY AND INDEMNIFICATION
Section 1. Compensation. The Directors as such shall be entitled to
reasonable compensation from the Focus Funds Series, and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Director for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Focus Funds Series.
Section 2. Limitation of Liability. All persons contracting with or
having any claim against the Focus Funds Series or a particular Series shall look only to the
assets of all Series or such particular Series for payment under such contract
or claim; and neither the Directors nor, when acting in such capacity, any of the
Focus Funds Series's officers, employees or agents, whether past, present or future, shall be
personally liable therefor. Every written instrument or obligation on behalf of
the Focus Funds Series or any Series shall contain a statement to the foregoing effect, but
the absence of such statement shall not operate to make any Director or officer
of the Focus Funds Series liable thereunder. Provided they have exercised reasonable care and
have acted under the reasonable belief that their actions are in the best
interest of the Focus Funds Series, the Directors and officers of the Focus Funds Series shall not be
responsible or liable for any act or omission or for neglect or wrongdoing of
them or any officer, agent, employee, investment adviser or independent
contractor of the Focus Funds Series, but nothing contained in this Declaration or in the Nevada Act shall protect any Director or officer of the Focus Funds Series against liability
to the Focus Funds Series or to Shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office.
Section 3. Indemnification. (a) Subject to the exceptions and
limitations contained in subsection (b) below:
(i) every person who is, or has been, a Director or an
officer, employee or agent of the Focus Funds Series (including any
individual who serves at its request as director, officer,
partner, director or the like of another organization in which
it has any interest as a shareholder, creditor or otherwise)
("Covered Person") shall be indemnified by the Focus Funds Series or the
appropriate Series to the fullest extent permitted by law
against liability and against all expenses reasonably incurred
or paid by him in connection with any claim, action, suit or
proceeding in which he becomes involved as a party or
otherwise by virtue of his being or having been a Covered
Person and against amounts paid or incurred by him in the
settlement thereof; and
(ii) as used herein, the words "claim," "action," "suit,"
or "proceeding" shall apply to all claims, actions, suits or
proceedings (civil, criminal or other, including appeals),
actual or threatened, and the words "liability" and "expenses"
shall include, without limitation, attorneys' fees, costs,
judgments, amounts paid in settlement, fines, penalties and
other liabilities.
(b) No indemnification shall be provided hereunder to a
Covered Person:
(i) who shall have been adjudicated by a court or body
before which the proceeding was brought (A) to be liable to
the Focus Funds Series or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office, or (B)
not to have acted in good faith in the reasonable belief that
his action was in the best interest of the Focus Funds Series; or
(ii) in the event of a settlement, unless there has been
a determination that such Covered Person did not engage in
willful misfeasance, bad faith, gross negligence or reckless disregard of the
involved in the conduct of his office: duties
(A) by the court or other body approving the settlement;
(B) by at least a majority of those Directors who are neither
Interested Persons of the Focus Funds Series nor are parties to the matter
based upon a review of readily available facts (as opposed to
a full trial-type inquiry); (C) by written opinion of
independent legal counsel based upon a review of readily
available facts (as opposed to a full trial-type inquiry) or
(D) by a vote of a majority of the Outstanding Shares entitled
to vote (excluding any Outstanding Shares owned of record or
beneficially by such individual).
(c) The rights of indemnification herein provided may be
insured against by policies maintained by the Focus Funds Series, shall be
severable, shall not be exclusive of or affect any other rights to
which any Covered Person may now or hereafter be entitled, and shall
inure to the benefit of the heirs, executors and administrators of a
Covered Person.
(d) To the maximum extent permitted by applicable law,
expenses in connection with the preparation and presentation of a
defense to any claim, action, suit or proceeding of the character
described in subsection (a) of this Section may be paid by the Focus Funds Series or
applicable Series from time to time prior to final disposition thereof
upon receipt of an undertaking by or on behalf of such Covered Person
that such amount will be paid over by him to the Focus Funds Series or applicable
Series if it is ultimately determined that he is not entitled to
indemnification under this Section; provided, however, that either (i)
such Covered Person shall have provided appropriate security for such
undertaking, (ii) the Focus Funds Series is insured against losses arising out of
any such advance payments or (iii) either a majority of the Directors
who are neither Interested Persons of the Focus Funds Series nor parties to the
matter, or independent legal counsel in a written opinion, shall have
determined, based upon a review of readily available facts (as opposed
to a full trial-type inquiry) that there is reason to believe that such
Covered Person will not be disqualified from indemnification under this
Section.
(e) Any repeal or modification of this Article IV by the
Shareholders, or adoption or modification of any other provision of the
Declaration or By-laws inconsistent with this Article, shall be
prospective only, to the extent that such repeal, or modification
would, if applied retrospectively, adversely affect any limitation on the liability of any Covered Person or indemnification available to any
Covered Person with respect to any act or omission which occurred prior
to such repeal, modification or adoption.
Section 3. Indemnification of Shareholders. If any Shareholder or former Shareholder of any Series shall be held personally liable solely by
reason of his being or having been a Shareholder and not because of his acts or
omissions or for some other reason, the Shareholder or former Shareholder
(or his heirs, executors, administrators or other legal representatives or in
the case of any entity, its general successor) shall be entitled out of the
assets belonging to the applicable Series to be held harmless from and
indemnified against all loss and expense arising from such liability. The Focus Funds Series,
on behalf of the affected Series, shall, upon request by such Shareholder,
assume the defense of any claim made against such Shareholder for any act or
obligation of the Series and satisfy any judgment thereon from the assets of the
Series.
Section 4. No Bond Required of Directors. No Director shall be obligated
to give any bond or other security for the performance of any of his duties
hereunder.
Section 5. No Duty of Investigation; Notice in Focus Funds Series Instruments, Etc.
No purchaser, lender, transfer agent or other Person dealing with the Directors
or any officer, employee or agent of the Focus Funds Series or a Series thereof shall be
bound to make any inquiry concerning the validity of any transaction purporting
to be made by the Directors or by said officer, employee or agent or be liable
for the application of money or property paid, loaned, or delivered to or on the
order of the Directors or of said officer, employee or agent. Every obligation,
contract, instrument, certificate, Share, other security of the Focus Funds Series or a
Series thereof or undertaking, and every other act or thing whatsoever executed
in connection with the Focus Funds Series shall be conclusively presumed to have been
executed or done by the executors thereof only in their capacity as Directors
under this Declaration or in their capacity as officers, employees or agents of
the Focus Funds Series or a Series thereof. Every written obligation, contract, instrument,
certificate, Share, other security of the Focus Funds Series or a Series thereof or
undertaking made or issued by the Directors may recite that the same is executed
or made by them not individually, but as Directors under the Declaration, and
that the obligations of the Focus Funds Series or a Series thereof under any such instrument
are not binding upon any of the Directors or Shareholders individually, but bind
only the Focus Funds Series Property or the Focus Funds Series Property of the applicable Series, and may contain any further recital which they may deem appropriate, but the omission of such recital shall not operate to bind the Directors individually. The Directors
shall at all times maintain insurance for the protection of the Focus Funds Series Property
or the Focus Funds Series Property of the applicable Series, its Shareholders, Directors,
officers, employees and agents in such amount as the Directors shall deem
adequate to cover possible tort liability, and such other insurance as the
Directors in their sole judgment shall deem advisable.
Section 6. Reliance on Experts, Etc. Each Director, officer or employee
of the Focus Funds Series or a Series thereof shall, in the performance of his duties, powers
and discretions hereunder be fully and completely justified and protected with
regard to any act or any failure to act resulting from reliance in good faith
upon the books of account or other records of the Focus Funds Series or a Series thereof,
upon an opinion of counsel, or upon reports made to the Focus Funds Series or a Series
thereof by any of its officers or employees or by the Investment Adviser, the
Administrator, the Distributor, Transfer Agent, selected dealers, accountants,
appraisers or other experts or consultants selected with reasonable care by the
Directors, officers or employees of the Focus Funds Series, regardless of whether such counsel
or expert may also be a Director.
ARTICLE V
FUNDS; CLASSES; SHARES
Section 1. Establishment of Fund or Class. The Focus Funds Series shall consist of
one or more Funds. Without limiting the authority of the Directors to establish
and designate any further Funds, the Directors hereby establish two Funds which
shall be designated Focus Funds Series A. Each additional
Fund shall be established and is effective upon the adoption of a resolution
of a majority of the Directors or any alternative date specified in such
resolution. The Directors may designate the relative rights and preferences of
the Shares of each Series. The Directors may divide the Shares of any Fund into
Classes. Without limiting the authority of the Directors to establish and
designate any further Classes, the Directors hereby establish a single Class of
Shares. The Classes of Shares of the existing Series herein established and
designated and any Shares of any further Funds and Classes that may from time
to time be established and designated by the Directors shall be established and
designated, and the variations in the relative rights and preferences as between
the different Series shall be fixed and determined, by the Directors; provided,
that all Shares shall be identical except for such variations as shall be fixed
and determined between different Funds or Classes by the Directors in
establishing and designating such Class or Funds. In connection therewith with
respect to the existing Classes, the purchase price, the method of determining
the net asset value, and the relative dividend rights of holders shall be as set forth in the Focus Funds Series's Registration Statement on Form N-1A under the Securities
Act of 1933 and/or the 1940 Act and as in effect at the time of issuing Shares
of the existing Classes.
All references to Shares in this Declaration shall be deemed to be
Shares of any or all Funds or Classes as the context may require. The Focus Funds Series
shall maintain separate and distinct records for each Series and hold and
account for the assets thereof separately from the other assets of the Focus Funds Series A or of any other Fund. A Fund may issue any number of Shares or any Class thereof and need not issue Shares. Each Share of a Fund shall represent an
equal beneficial interest in the net assets of such Series. Each holder of
Shares of a Fund or a Class thereof shall be entitled to receive his pro rata
share of all distributions made with respect to such Fund or Class. Upon
redemption of his Shares, such Shareholder shall be paid solely out of the funds
and property of such Series. The Directors may adopt and change the name of any
Fund or Class.
Section 2. Shares. The beneficial interest in the Focus Funds Series shall be
divided into transferable Shares of one or more separate and distinct Funds or
Classes established by the Directors. The number of Shares of each Fund and
Class is unlimited and each Share shall have no par value per Share or such
other amount as the Directors may establish. All Shares issued hereunder shall be
fully paid and nonassessable. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities issued by the
Focus Funds Series. The Directors shall have full power and authority, in their sole
discretion and without obtaining Shareholder approval, to issue original or
additional Shares at such times and on such terms and conditions as they deem
appropriate; to issue fractional Shares and Shares held in the treasury; to
establish and to change in any manner Shares of any Funds or Classes with such
preferences, terms of conversion, voting powers, rights and privileges as the
Directors may determine (but the Directors may not change Outstanding Shares in a
manner materially adverse to the Shareholders of such Shares); to divide or
combine the Shares of any Funds or Classes into a greater or lesser number; to
classify or reclassify any unissued Shares of any Series or Classes into one or
more Funds or Classes of Shares; to abolish any one or more Funds or Classes
of Shares; to issue Shares to acquire other assets (including assets subject to,
and in connection with, the assumption of liabilities) and businesses; and to
take such other action with respect to the Shares as the Directors may deem
desirable. Shares held in the treasury shall not confer any voting rights on the
Directors and shall not be entitled to any dividends or other distributions
declared with respect to the Shares.
Section 3. Investment in the Focus Funds Series. The Directors shall accept
investments in any Fund or Class from such persons and on such terms as they
may from time to time authorize. At the Directors' discretion, such investments, subject to applicable law, may be in the form of cash or securities in which
that Series is authorized to invest, valued as provided in Article VI, Section
3. Investments in a Series shall be credited to each Shareholder's account in
the form of full Shares at the Net Asset Value per Share next determined after
the investment is received or accepted as may be determined by the Directors;
provided, however, that the Directors may, in their sole discretion, (a) impose a
sales charge upon investments in any Fund or Class, (b) issue fractional
Shares, (c) determine the Net Asset Value per Share of the initial capital
contribution or (d) authorize the issuance of Shares at a price other than Net
Asset Value to the extent permitted by the 1940 Act or any rule, order or interpretation
of the Commission thereunder. The Directors shall have the right
to refuse to accept investments in any Series at any time without any cause or
reason therefor whatsoever.
Section 4. Assets and Liabilities of Series. All consideration received
by the Focus Funds Series 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 be held and accounted for separately from the assets of every other
Series and are referred to as "assets belonging to" that Series. The assets
belonging to a Series shall belong only to that Series for all purposes, and to
no other Series, subject only to the rights of creditors of that Series. Any
assets, income, earnings, profits, and proceeds thereof, funds, or payments
which are not readily identifiable as belonging to any particular Series shall
be allocated by the Directors between and among one or more Series as the
Directors deem fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series for all purposes, and such assets,
earnings, income, profits or funds, or payments and proceeds thereof shall be
referred to as assets belonging to that Series. The assets belonging to a Series
shall be so recorded upon the books of the Focus Funds Series, and shall be held by the
Directors in Focus Funds Series for the benefit of the Shareholders of that Series. The assets
belonging to a Series shall be charged with the liabilities of that Series and
all expenses, costs, charges and reserves attributable to that Series, except
that liabilities and expenses allocated solely to a particular Class shall be
borne by that Class. Any general liabilities, expenses, costs, charges or
reserves of the Focus Funds Series which are not readily identifiable as belonging to any
particular Fund or Class shall be allocated and charged by the Directors
between or among any one or more of the Funds or Classes in such manner as the
Directors deem fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Funds or Classes for all purposes.
Without limiting the foregoing, but subject to the right of the
Directors to allocate general liabilities, expenses, costs, charges or reserves
as herein provided, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Series shall
be enforceable against the assets of such Series only, and not against the
assets of any other Series. Notice of this contractual limitation on liabilities
among Series may, in the Directors' discretion, be set forth in the certificate
of Focus Funds Series of the Focus Funds Series (whether originally or by amendment) as filed or to be
filed in the Office of the Secretary of State of the State of Nevada pursuant
to the Nevada Act, and upon the giving of such notice in the certificate of Focus Funds Series, the statutory provisions of Section 3804 of the Nevada Act relating to
limitations on liabilities among Series (and the statutory effect under Section
3804 of setting forth such notice in the certificate of Focus Funds Series) shall become
applicable to the Focus Funds Series and each Series. Any person extending credit to,
contracting with or having any claim against any Series may look only to the
assets of that Series to satisfy or enforce any debt, with respect to that
Series. No Shareholder or former Shareholder of any Series shall have a claim on
or any right to any assets allocated or belonging to any other Series.
Section 5. Ownership and Transfer of Shares. The Focus Funds Series or a transfer or
similar agent for the Focus Funds Series shall maintain a register containing the names and
addresses of the Shareholders of each Fund and Class thereof, the number of
Shares of each Fund and Class held by such Shareholders, and a record of all
Share transfers. The register shall be conclusive as to the identity of
Shareholders of record and the number of Shares held by them from time to time.
The Directors may authorize the issuance of certificates representing Shares and
adopt rules governing their use. The Directors may make rules governing the
transfer of Shares, whether or not represented by certificates. Except as
otherwise provided by the Directors, Shares shall be transferable on the books of
the Focus Funds Series only by the record holder thereof or by his duly authorized agent upon
delivery to the Directors or the Focus Funds Series's transfer agent of a duly executed
instrument of transfer, together with a Share certificate if one is outstanding,
and such evidence or the genuineness of each such execution and authorization
and of such other matters as may be required by the Directors. Upon such
delivery, and subject to any further requirements specified by the Directors or
contained in the By-laws, the transfer shall be recorded on the books of the
Focus Funds Series. Until a transfer is so recorded, the Shareholder of record of Shares
shall be deemed to be the holder of such Shares for all purposes hereunder and
neither the Directors nor the Focus Funds Series, nor any transfer agent or registrar or any
officer, employee or agent of the Focus Funds Series, shall be affected by any notice of a
proposed transfer.
Section 6. Status of Shares; Limitation of Shareholder Liability.
Shares shall be deemed to be personal property giving Shareholders only the
rights provided in this Declaration. Every Shareholder, by virtue of having
acquired a Share, shall be held expressly to have assented to and agreed to be
bound by the terms of this Declaration and to have become a party hereto. No
Shareholder shall be personally liable for the debts, liabilities, obligations
and expenses incurred by, contracted for, or otherwise existing with respect to,
the Focus Funds Series or any Series. The death, incapacity, dissolution, termination or
bankruptcy of a Shareholder during the existence of the Focus Funds Series shall not operate
to terminate the Focus Funds Series, nor entitle the representative of any such Shareholder
to an accounting or to take any action in court or elsewhere against the Focus Funds Series
or the Directors, but entitles such representative only to the rights of such
Shareholder under this Focus Funds Series. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Focus Funds Series 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 Focus Funds Series nor the Directors shall have any power to bind any Shareholder
personally or to demand payment from any Shareholder for anything, other than as
agreed by the Shareholder. Shareholders shall have the same limitation of
personal liability as is extended to shareholders of a private corporation for
profit incorporated in the State of Nevada. Every written obligation of the
Focus Funds Series or any Series shall contain a statement to the effect that such obligation
may only be enforced against the assets of the appropriate Series or all Series;
however, the omission of such statement shall not operate to bind or create
personal liability for any Shareholder or Director.
ARTICLE VI
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Directors or a committee of one or more
Directors and one or more officers may declare and pay dividends and other
distributions, including dividends on Shares of a particular Series and other
distributions from the assets belonging to that Series. No dividend or
distribution, including, without limitation, any distribution paid upon
termination of the Focus Funds Series A or of any Fund (or Class) with respect to, nor any redemption or repurchase of, the Shares of any Fund (or Class) shall be
effected by the Focus Funds Series A other than from the assets held with respect to such Fund, nor shall any Shareholder of any particular Fund otherwise have any
right or claim against the assets held with respect to any other Fund except to the extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Funds. The Directors shall have full discretion 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. The amount and payment of dividends or distributions and their
form, whether they are in cash, Shares or other Focus Funds Series Property, shall be
determined by the Directors. Dividends and other distributions may be paid
pursuant to a standing resolution adopted once or more often as the Directors
determine. All dividends and other distributions on Shares of a particular
Fund shall be distributed pro rata to the Shareholders of that Fund in
proportion to the number of Shares of that Series they held on the record date
established for such payment, except that such dividends and distributions shall
appropriately reflect expenses allocated to a particular Class of such Fund.
The Directors may adopt and offer to Shareholders such dividend reinvestment
plans, cash dividend payout plans or similar plans as the Directors deem
appropriate.
Section 2. Redemptions. Each Shareholder of a Series shall have the
right at such times as may be permitted by the Directors to require the Series to
redeem all or any part of his Shares at a redemption price per Share equal to
the Net Asset Value per Share at such time as the Directors shall have prescribed
by resolution, or, to the extent permitted by the 1940 Act, at such other
redemption price and at such times as the Directors shall prescribe by
resolution. In the absence of such resolution, the redemption price per Share
shall be the Net Asset Value next determined after receipt by the Series of a
request for redemption in proper form less such charges as are determined by the
Directors and described in the Focus Funds Series's Registration Statement for that Series
under the Securities Act of 1933. The Directors may specify conditions, prices,
and places of redemption, may specify binding requirements for the proper form
or forms of requests for redemption and may specify the amount of any deferred
sales charge to be withheld from redemption proceeds. Payment of the redemption
price may be wholly or partly in securities or other assets at the value of such
securities or assets used in such determination of Net Asset Value, or may be in
cash. Upon redemption, Shares may be reissued from time to time. The Directors
may require Shareholders to redeem Shares for any reason under terms set by the
Directors, including, but not limited to, the failure of a Shareholder to supply
a taxpayer identification number if required to do so, or to have the minimum
investment required, or to pay when due for the purchase of Shares issued to
him. To the extent permitted by law, the Directors may retain the proceeds of any
redemption of Shares required by them for payment of amounts due and owing by a
Shareholder to the Focus Funds Series or any Series or Class or any governmental authority.
Notwithstanding the foregoing, the Directors may postpone payment of the redemption price and may suspend the right of the Shareholders to require any
Fund or Class to redeem Shares during any period of time when and to the
extent permissible under the 1940 Act.
Section 3. Determination of Net Asset Value. The Directors shall cause
the Net Asset Value of Shares of each Fund or Class to be determined from time
to time in a manner consistent with applicable laws and regulations. The
Directors may delegate the power and duty to determine Net Asset Value per Share
to one or more Directors or officers of the Focus Funds Series or to a custodian, depository
or other agent appointed for such purpose. The Net Asset Value of Shares shall
be determined separately for each Fund or Class at such times as may be
prescribed by the Directors or, in the absence of action by the Directors, as of
the close of regular trading on the New York Stock Exchange on each day for all
or part of which such Exchange is open for unrestricted trading.
Section 4. Suspension of Right of Redemption. If, as referred to in
Section 2 of this Article, the Directors postpone payment of the redemption price and suspend the right of Shareholders to redeem their Shares, such suspension
shall take effect at the time the Directors shall specify, but not later than the
close of business on the business day next following the declaration of
suspension. Thereafter Shareholders shall have no right of redemption or payment
until the Directors declare the end of the suspension. If the right of redemption
is suspended, a Shareholder may either withdraw his request for redemption or
receive payment based on the Net Asset Value per Share next determined after the
suspension terminates.
Section 5. Repurchase by Agreement. The Focus Funds Series may repurchase Shares
directly, or through the Distributor or another agent designated for the
purpose, by agreement with the owner thereof at a price not exceeding the Net
Asset Value per Share determined as of the time when the purchase or contract of
purchase is made or the Net Asset Value as of any time which may be later
determined, provided payment is not made for the Shares prior to the time as of
which such Net Asset Value is determined.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. The Shareholders shall have power to vote
only with respect to (a) the election of Directors as provided in Section 2 of
this Article; (b) the removal of Directors as provided in Article II, Section
3(d); (c) any investment advisory or management contract as provided in Article
VIII, Section 1; (d) any termination of the Focus Funds Series as provided in Article IX,
Section 4; (e) the amendment of this Declaration to the extent and as provided in Article X, Section 8; and (f) such additional matters relating to the Focus Funds Series
as may be required or authorized by law, this Declaration, or the By-laws or any
registration of the Focus Funds Series with the Commission or any State, or as the Directors
may consider desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall
be voted by individual Fund or Class, except (a) when required by the 1940
Act, Shares shall be voted in the aggregate and not by individual Fund or
Class, and (b) when the Directors have determined that the matter affects the
interests of more than one Fund or Class, then the Shareholders of all such
Funds or Classes shall be entitled to vote thereon. As determined by the
Directors without the vote or consent of shareholders, on any matter submitted to
a vote of Shareholders either (i) 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 or (ii) each dollar of net asset
value (number of Shares owned times net asset value per share of such Fund or Class, as applicable) shall be entitled to one vote on any matter on which such
Shares are entitled to vote and each fractional dollar amount shall be entitled
to a proportionate fractional vote. Without limiting the power of the Directors
in any way to designate otherwise in accordance with the preceding sentence, the
Directors hereby establish that 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 Directors. Shares may be voted in person or by proxy or in any
manner provided for in the By-laws. The By-laws may provide that proxies may be
given by any electronic or telecommunications device or in any other manner, but
if a proposal by anyone other than the officers or Directors is submitted to a
vote of the Shareholders of any Fund or Class, or if there is a proxy contest
or proxy solicitation or proposal in opposition to any proposal by the officers
or Directors, Shares may be voted only in person or by written proxy. Until
Shares of a Series are issued, as to that Series the Directors may exercise all
rights of Shareholders and may take any action required or permitted to be taken
by Shareholders by law, this Declaration or the By-laws. Meetings of
Shareholders shall be called and notice thereof and record dates therefor shall
be given and set as provided in the By-laws.
Section 2. Quorum; Required Vote. One-third of the Outstanding Shares
of each Fund or Class, or one-third of the Outstanding Shares of the Focus Funds Series,
entitled to vote in person or by proxy shall be a quorum for the transaction of
business at a Shareholders' meeting with respect to such Fund or Class, or
with respect to the entire Focus Funds Series, respectively. Any lesser number shall be
sufficient for adjournments. Any adjourned session of a Shareholders' meeting
may be held within a reasonable time without further notice. Except when a larger vote is required by law, this Declaration or the By-laws, a majority of
the Shares voting at a Shareholders' meeting in person or by proxy shall decide
any matters to be voted upon with respect to the entire Focus Funds Series and a plurality of
such Shares shall elect a Director; provided, that if this Declaration or
applicable law permits or requires that Shares be voted on any matter by
individual Funds or Classes, then a majority of the Shares of that Fund or
Class (or, if required by law, a majority of the Shares outstanding and entitled
to vote of that Fund or Class) voting at a Shareholders' meeting in person or
by proxy on the matter shall decide that matter insofar as that Fund or Class
is concerned. Shareholders may act as to the Focus Funds Series or any Series or Class by the
written consent of a majority (or such other amount as may be required by
applicable law) of the Outstanding Shares of the Focus Funds Series or of such Fund or
Class, as the case may be.
Section 3. Record Dates. For the purpose of determining the
Shareholders of any Fund (or Class) who are entitled to receive payment of any
dividend or of any other distribution, the Directors may from time to time fix a
date, which shall be before the date for the payment of such dividend or such
other payment, as the record date for determining the Shareholders of such Fund (or Class) having the right to receive such dividend or distribution.
Without fixing a record date, the Directors may for distribution purposes close
the register or transfer books for one or more Funds (or Classes) any time
prior to the payment of a distribution. Nothing in this Section shall be
construed as precluding the Directors from setting different record dates for
different Funds (or Classes).
Section 4. Additional Provisions. The By-laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VIII
EXPENSES OF THE FOCUS FUNDS SERIES AND SERIES
Section 1. Payment of Expenses by the Focus Funds Series. Subject to Article V,
Section 4, the Focus Funds Series A or a particular Fund shall pay, or shall reimburse the Directors from the assets belonging to all Funds or the particular Fund, for
their expenses (or the expenses of a Class of such Fund) and disbursements,
including, but not limited to, interest charges, taxes, brokerage fees and
commissions; expenses of issue, repurchase and redemption of Shares; certain
insurance premiums; applicable fees, interest charges and expenses of third
parties, including the Focus Funds Series's investment advisers, managers, administrators,
distributors, custodians, transfer agents and fund accountants; fees of pricing,
interest, dividend, credit and other reporting services; costs of membership in trade associations; telecommunications expenses; funds transmission expenses;
auditing, legal and compliance expenses; costs of forming the Focus Funds Series and its
Series and maintaining its existence; costs of preparing and printing the
prospectuses of the Focus Funds Series and each Series, statements of additional information
and Shareholder reports and delivering them to Shareholders; expenses of
meetings of Shareholders and proxy solicitations therefor; costs of maintaining
books and accounts; costs of reproduction, stationery and supplies; fees and
expenses of the Directors; compensation of the Focus Funds Series's officers and employees and
costs of other personnel performing services for the Focus Funds Series or any Series; costs
of Director meetings; Commission registration fees and related expenses; state or
foreign securities laws registration fees and related expenses; and for such
non-recurring items as may arise, including litigation to which the Focus Funds Series or a
Series (or a Director or officer of the Focus Funds Series acting as such) is a party, and for
all losses and liabilities by them incurred in administering the Focus Funds Series. The
Directors shall have a lien on the assets belonging to the appropriate Series, or
in the case of an expense allocable to more than one Series, on the assets of
each such Series, prior to any rights or interests of the Shareholders thereto,
for the reimbursement to them of such expenses, disbursements, losses and
liabilities.
Section 2. Payment of Expenses by Shareholders. The Directors shall have the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Series, to pay directly, in advance or
arrears, for charges of the Focus Funds Series's custodian or transfer, shareholder servicing
or similar agent, an amount fixed from time to time by the Directors, by setting
off such charges due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of Shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
ARTICLE IX
MISCELLANEOUS
Section 1. Focus Funds Series Not a Partnership. This Declaration creates a Focus Funds Series and not a partnership. No Director shall have any power to bind personally either
the Focus Funds Series's officers or any Shareholder.
Section 2. Director Action. The exercise by the Directors of their powers
and discretion hereunder in good faith and with reasonable care under the
circumstances then prevailing shall be binding upon everyone interested. Subject
to the provisions of Article IV, the Directors shall not be liable for errors of
judgment or mistakes of fact or law.
Section 3. Record Dates. The Directors may fix in advance a date up to
ninety (90) days before the date of any Shareholders' meeting, or the date for
the payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of such dividend or other distribution, or to
receive any such allotment of rights, or to exercise such rights in respect of
any such change, conversion or exchange of Shares.
Section 4. Termination of the Focus Funds Series.
(a) This Focus Funds Series shall have perpetual existence. Subject to the
vote of a majority of the Shares outstanding and entitled to vote of
the Focus Funds Series or of each Series to be affected, the Directors may
(i) sell and convey all or substantially all of the
assets of all Series or any affected Series to another Series
or to another entity which is an open-end investment company
as defined in the 1940 Act, or is a series thereof, for
adequate consideration, which may include the assumption of
all outstanding obligations, taxes and other liabilities, ccrued or contingent, of the Focus Funds Series or any affected Series, and which may include shares of or interests in such Series, entity, or series thereof; or
(ii) at any time sell and convert into money all or
substantially all of the assets of all Series or any affected
Series.
Upon making reasonable provision for the payment of all known
liabilities of all Series or any affected Series in either (i) or (ii),
by such assumption or otherwise, the Directors shall distribute the
remaining proceeds or assets (as the case may be) ratably among the
Shareholders of all Series or any affected Series; however, the payment
to any particular Class of such Fund may be reduced by any fees,
expenses or charges allocated to that Class.
(b) The Directors may take any of the actions specified in
subsection (a)(i) and (ii) above without obtaining the vote of a
majority of the Shares Outstanding and entitled to vote of the Focus Funds Series or
any Series if a majority of the Directors determines that the
continuation of the Focus Funds Series or Series is not in the best interests of the
Focus Funds Series, such Series, or their respective Shareholders as a result of
factors or events adversely affecting the ability of the Focus Funds Series or such
Series to conduct its business and operations in an economically viable manner. Such factors and events may include the inability of the Focus Funds Series
or a Series to maintain its assets at an appropriate size, changes in
laws or regulations governing the Focus Funds Series or the Series or affecting
assets of the type in which the Focus Funds Series or Series invests, or economic
developments or trends having a significant adverse impact on the
business or operations of the Focus Funds Series or such Series.
(c) Upon completion of the distribution of the remaining
proceeds or assets pursuant to subsection (a), the Focus Funds Series or affected
Series shall terminate and the Directors and the Focus Funds Series shall be
discharged of any and all further liabilities and duties hereunder with
respect thereto and the right, title and interest of all parties
therein shall be canceled and discharged. Upon termination of the
Focus Funds Series, following completion of winding up of its business, the Directors
shall cause a certificate of cancellation of the Focus Funds Series's certificate of
Focus Funds Series to be filed in accordance with the Nevada Act, which
certificate of cancellation may be signed by any one Director.
Section 5.
Reorganization.
(a) Notwithstanding anything else herein, to change the
Focus Funds Series's form or place of organization the Directors may, without
Shareholder approval unless such approval is required by applicable
law, (i) cause the Focus Funds Series to merge or consolidate with or into one or
more entities, if the surviving or resulting entity is the Focus Funds Series or
another open-end management investment company under the 1940 Act, or a
series thereof, that will succeed to or assume the Focus Funds Series's registration
under the 1940 Act, (ii) cause the Shares to be exchanged under or
pursuant to any state or federal statute to the extent permitted by
law, or (iii) cause the Focus Funds Series to incorporate under the laws of Nevada
or any other U.S. jurisdiction. Any agreement of merger or
consolidation or certificate of merger may be signed by a majority of
Directors and facsimile signatures conveyed by electronic or
telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of
Section 3815(f) of the Nevada Act, an agreement of merger or
consolidation approved by the Directors in accordance with this Section
5 may effect any amendment to the Declaration or effect the adoption of
a new Focus Funds Series instrument of the Focus Funds Series if it is the
surviving or resulting Focus Funds Series in the merger or consolidation.
(c) The Directors may create one or more business Focus Funds Series to
which all or any part of the assets, liabilities, profits or losses of
the Focus Funds Series or any Fund or Class thereof may be transferred and may provide for the conversion of Shares in the Focus Funds Series A
or any Fund or Class thereof into beneficial interests in any such newly created
Focus Series A or any funds or classes thereof.
Section 6. Declaration of Focus Funds Series. The original or a copy of this
Declaration of Focus Funds Series and of each amendment hereto or Declaration of Focus Funds Series
supplemental shall be kept at the office of the Focus Funds Series where it may be inspected
by any Shareholder. Anyone dealing with the Focus Funds Series may rely on a certificate by a
Director or an officer of the Focus Funds Series as to the authenticity of the Declaration of
Focus Funds Series or any such amendments or supplements and as to any matters in connection
with the Focus Funds Series. The masculine gender herein shall include the feminine and
neuter genders. Headings herein are for convenience only and shall not affect
the construction of this Declaration of Focus Funds Series. This Declaration of Focus Funds Series may be
executed in any number of counterparts, each of which shall be deemed an
original.
Section 7. Applicable Law. This Declaration and the Focus Funds Series created
hereunder are governed by and construed and administered according to the Nevada Act and the applicable laws of the State of Nevada; provided,
however, that there shall not be applicable to the Focus Funds Series, the Directors or this
Declaration of Focus Funds Series (a) the provisions of Section 3540 of Title 12 of the
Nevada Code, or (b) any provisions of the laws (statutory or common) of the
State of Nevada (other than the Nevada Act) pertaining to Focus Funds Series which
relate to or regulate (i) the filing with any court or governmental body or
agency of director accounts or schedules of director fees and charges, (ii)
affirmative requirements to post bonds for directors, officers, agents or
employees of a Focus Funds Series, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (iv) fees or other sums payable to directors, officers,
agents or employees of a Focus Funds Series, (v) the allocation of receipts and expenditures
to income or principal, (vi) restrictions or limitations on the permissible
nature, amount or concentration of Focus Funds Series investments or requirements relating to
the titling, storage or other manner of holding of Focus Funds Series assets, or (vii) the
establishment of fiduciary or other standards of responsibilities or limitations
on the acts or powers of directors, which are inconsistent with the limitations
or liabilities or authorities and powers of the Directors set forth or referenced
in this Declaration. The Focus Funds Series shall be of the type commonly called a Nevada
business Focus Funds Series, and, without limiting the provisions hereof, the Focus Funds Series may exercise all powers which are ordinarily exercised by such a Focus Funds Series under Nevada law. The Focus Funds Series specifically reserves the right to exercise any of the
powers or privileges afforded to Focus Funds Series or actions that may be engaged in by Focus Funds Series under the Nevada Act, and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the Focus Funds Series may not
exercise such power or privilege or take such actions.
Section 8. Amendments. The Directors may, without any Shareholder vote,
amend or otherwise supplement this Declaration by making an amendment, a
Declaration of Focus Funds Series supplemental hereto or an amended and restated Focus Funds Series instrument; provided, that Shareholders shall have the right to vote on any
amendment (a) which would affect the voting rights of Shareholders granted in
Article VII, Section l, (b) to this Section 8, (c) required to be approved by
Shareholders by law or by the Focus Funds Series's registration statement(s) filed with the
Commission, and (d) submitted to them by the Directors in their discretion. Any
amendment submitted to Shareholders which the Directors determine would affect
the Shareholders of any Series shall be authorized by vote of the Shareholders
of such Series and no vote shall be required of Shareholders of a Series not
affected. Notwithstanding anything else herein, any amendment to Article IV
which would have the effect of reducing the indemnification and other rights
provided thereby to Directors, officers, employees, and agents of the Focus Funds Series or to
Shareholders or former Shareholders, and any repeal or amendment of this
sentence shall each require the affirmative vote of the holders of two-thirds of
the Outstanding Shares of the Focus Funds Series entitled to vote thereon.
Section 9. Derivative Actions. In addition to the requirements set forth in Section 3816 of the Nevada Act, a Shareholder may bring a derivative action on behalf of the Focus Funds Series only if the following conditions are met:
(a)
Shareholders eligible to bring such derivative action under the Nevada Act who hold at least 10% of the Outstanding Shares of the Fund or Class to which such action relates, shall join in the request for the Directors to commence such action; and
(b)
The Directors must be afforded a reasonable amount of time to consider such shareholder request to investigate the basis of such claim. The Directors shall be entitled to retain counsel or other advisers in considering the merits of the request and shall require an undertaking by the Shareholders making such request to reimburse the Focus Funds Series for the expense of any such advisers in the event that the Directors determine not to bring such action.
Section 10. Fiscal Year. The fiscal year of the Focus Funds Series shall end on a specified date as set forth in the By-laws. The Directors may change the fiscal year of the Focus Funds Series without Shareholder approval.
Section 11. Severability. The provisions of this Declaration are severable. If the Directors determine, with the advice of counsel, that any provision hereof conflicts with the 1940 Act, the regulated investment company provisions of the Internal Revenue Code or with other applicable laws and regulations, the conflicting provision shall be deemed never to have constituted as part of this Declaration; provided, however, that such determination shall not affect any of the remaining provisions of this Declaration or render invalid or improper any action taken or
omitted prior to such determination. If any provision hereof shall be held invalid or unenforceable in any jurisdiction, such invalidity or unenforceablity shall attach only to such provision only in such jurisdiction and shall not affect any other provision of this Declaration.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of the date first written above.
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