AmeriPrime Funds
Agreement and Declaration of Trust
August ____, 1995
AmeriPrime Funds
Agreement and Declaration of Trust
TABLE OF CONTENTS
ARTICLE I - NAME AND DEFINITIONS............................................. 1
Section 1.1 Name......................................... 1
Section 1.2 Definitions.................................. 1
(a) The "Trust"...................................... 1
(b) "Trustees"....................................... 1
(c) "Shares"......................................... 1
(d) "Series".......................................... 1
(e) "Class".......................................... 1
(f) "Shareholder".................................... 2
(g) The "1940 Act"................................... 2
(h) "Commission"..................................... 2
(i) "Declaration of Trust"........................... 2
(j) "By-Laws"........................................ 2
ARTICLE II - PURPOSE OF TRUST............................................... 2
ARTICLE III - THE TRUSTEES.................................................. 2
Section 3.1 Number, Designation, Election, Term, etc...... 2
(a) Initial Trustees.................................. 2
(b) Number........................................... 2
(c) Term............................................. 2
(d) Resignation and Retirement....................... 3
(e) Removal.......................................... 3
(f) Vacancies........................................ 3
(g) Effect of Death, Resignation, etc................ 3
(h) No Accounting.................................... 3
Section 3.2 Powers of Trustees............................ 3
(a) Investments....................................... 4
(b) Disposition of Assets............................. 4
(c) Ownership Powers.................................. 4
(d) Subscription..................................... 4
(e) Form of Holding................................... 5
(f) Reorganization, etc............................... 5
(g) Voting Trusts, etc................................ 5
(h) Compromise....................................... 5
(i) Partnerships, etc................................. 5
(j) Borrowing and Security........................... 5
(k) Guarantees, etc.................................. 5
(l) Insurance........................................ 5
(m) Pensions, etc.................................... 6
Section 3.3 Certain Contracts............................ 6
(a) Advisory......................................... 6
(b) Administration.................................... 6
(c) Distribution..................................... 7
(d) Custodian and Depository......................... 7
(e) Transfer and Dividend Disbursing Agency........... 7
(f) Shareholder Servicing............................ 7
(g) Accounting...................................... 7
Section 3.4 Payment of Trust Expenses and Compensation of
Trustees................................... 8
Section 3.5 Ownership of Assets of the Trust............. 8
ARTICLE IV - SHARES......................................................... 8
Section 4.1 Description of Shares........................ 8
Section 4.2 Establishment and Designation of Series...... 10
(a) Assets Belonging to Series....................... 10
(b) Liabilities Belonging to Series.................. 10
(c) Dividends.........................................11
(d) Liquidation...................................... 11
(e) Voting........................................... 12
(f) Redemption by Shareholder........................ 12
(g) Redemption by Trust.............................. 12
(h) Net Asset Value.................................. 13
(i) Transfer......................................... 13
(j) Equality......................................... 13
(k) Fractions.........................................13
(l) Conversion Rights................................ 14
Section 4.3 Ownership of Shares.......................... 14
Section 4.4 Investments in the Trust..................... 14
Section 4.5 No Preemptive Rights..........................14
Section 4.6 Status of Shares and Limitation of
Personal Liability......................... 14
ARTICLE V - SHAREHOLDERS' VOTING POWERS AND MEETINGS........................ 14
Section 5.1 Voting Powers...................................... 14
Section 5.2 Meetings..................................... 15
Section 5.3 Record Dates................................. 15
Section 5.4 Quorum and Required Vote..................... 16
Section 5.5 Action by Written Consent.....................16
Section 5.6 Inspection of Records........................ 16
Section 5.7 Additional Provisions........................ 16
ARTICLE VI - LIMITATION OF LIABILITY; INDEMNIFICATION....................... 16
Section 6.1 Trustees, Shareholders, etc.
Not Personally Liable; Notice.............. 16
Section 6.2 Trustee's Good Faith Action;
Expert Advice; No Bond or Surety........... 17
Section 6.3 Indemnification of Shareholders.............. 17
Section 6.4 Indemnification of Trustees, Officers, etc... 18
Section 6.5 Advances of Expenses......................... 18
Section 6.6 Indemnification Not Exclusive, etc........... 18
Section 6.7 Liability of Third Persons
Dealing with Trustees.......................18
ARTICLE VII - MISCELLANEOUS................................................. 18
Section 7.1 Duration and Termination of Trust............ 18
Section 7.2 Reorganization................................19
Section 7.3 Amendments................................... 19
Section 7.4 Filing of Copies; References; Headings........20
Section 7.5 Applicable Law............................... 20
ARTICLE I - NAME AND DEFINITIONS............................................. 1
Section 1.1 Name......................................... 1
Section 1.2 Definitions................................... 1
(a) The "Trust"...................................... 1
(b) "Trustees"....................................... 1
(c) "Shares"......................................... 1
(d) "Series"......................................... 1
(e) "Shareholder".................................... 2
(f) The "1940 Act"................................... 2
(g) "Commission"..................................... 2
(h) "Declaration of Trust"........................... 2
(i) "By-Laws"........................................ 2
ARTICLE II - PURPOSE OF TRUST............................................... 2
ARTICLE III - THE TRUSTEES................................................... 2
Section 3.1 Number, Designation, Election, Term, etc...... 2
(a) Initial Trustees................................. 2
(b) Number............................................ 2
(c) Term............................................. 2
(d) Resignation and Retirement........................ 3
(e) Removal............................................3
(f) Vacancies......................................... 3
(g) Effect of Death, Resignation, etc................ 3
(h) No Accounting.................................... 3
Section 3.2 Powers of Trustees............................ 4
(a) Investments....................................... 4
(b) Disposition of Assets............................. 4
(c) Ownership Powers................................. 4
(d) Subscription..................................... 5
(e) Form of Holding.................................. 5
(f) Reorganization, etc............................... 5
(g) Voting Trusts, etc............................... 5
(h) Compromise....................................... 5
(i) Partnerships, etc................................ 5
(j) Borrowing and Security........................... 5
(k) Guarantees, etc................................... 5
(l) Insurance......................................... 5
(m) Pensions, etc..................................... 6
Section 3.3 Certain Contracts............................. 6
(a) Advisory......................................... 6
(b) Administration................................... 7
(c) Distribution..................................... 7
(d) Custodian and Depository......................... 7
(e) Transfer and Dividend Disbursing Agency.......... 7
(f) Shareholder Servicing............................. 7
(g) Accounting........................................ 7
Section 3.4 Payment of Trust Expenses
and Compensation of Trustees................ 8
Section 3.5 Ownership of Assets of the Trust.............. 8
ARTICLE IV - SHARES
Section 4.1 Description of Shares.......................... 8
Section 4.2 Establishment and Designation of Series........10
(a) Assets Belonging to Series........................ 10
(b) Liabilities Belonging to Series................... 11
(c) Dividends......................................... 11
(d) Liquidation....................................... 12
(e) Voting............................................ 12
(f) Redemption by Shareholder......................... 12
(g) Redemption by Trust................................13
(h) Net Asset Value................................... 13
(i) Transfer.......................................... 13
(j) Equality...........................................13
(k) Fractions..........................................14
(l) Conversion Rights..................................14
Section 4.3 Ownership of Shares........................... 14
Section 4.4 Investments in the Trust...................... 14
Section 4.5 No Preemptive Rights.......................... 14
Section 4.6 Status of Shares and Limitation of
Personal Liability......................... 14
ARTICLE V - SHAREHOLDERS' VOTING POWERS AND MEETINGS......................... 15
Section 5.1. Voting Powers..................................15
Section 5.2 Meetings...................................... 15
Section 5.3 Record Dates.................................. 16
Section 5.4 Quorum and Required Vote.......................16
Section 5.5 Action by Written Consent..................... 16
Section 5.6 Inspection of Records......................... 16
Section 5.7 Additional Provisions......................... 16
ARTICLE VI - LIMITATION OF LIABILITY; INDEMNIFICATION.........................17
Section 6.1 Trustees, Shareholders, etc.
Not Personally Liable; Notice................ 17
Section 6.2 Trustee's Good Faith Action;
Expert Advice; No Bond or Surety............. 17
Section 6.3 Indemnification of Shareholders............... 18
Section 6.4 Indemnification of Trustees, Officers, etc.... 18
Section 6.5 Advances of Expenses.......................... 18
Section 6.6 Indemnification Not Exclusive, etc............ 18
Section 6.7 Liability of Third Persons Dealing
with Trustees................................18
ARTICLE VII - MISCELLANEOUS...................................................19
Section 7.1 Duration and Termination of Trust..............19
Section 7.2 Reorganization.................................19
Section 7.3 Amendments.................................... 19
Section 7.4 Filing of Copies; References; Headings........ 20
Section 7.5 Applicable Law................................ 20
AmeriPrime Funds
Agreement and Declaration of Trust
AGREEMENT AND DECLARATION OF TRUST made at Southlake, Texas, this 26th
day of July, 1995, by the Trustees hereunder, and by the holders of Shares of
beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH:
WHEREAS, this Trust is being formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of an Ohio business trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same upon
the following terms and conditions for the benefit of the holders from time to
time of shares of beneficial interest in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
. This Trust shall be known as "AmeriPrime Funds" and the Trustees shall conduct
the business of the Trust under that name or any other name as they may from
time to time determine.
. Whenever used herein, unless otherwise required by the context or
specifically provided: refers to the Ohio business trust established by this
Agreement and Declaration of Trust, as amended from time to time; refers to the
Trustees of the Trust named herein or elected in accordance with Article III;
refers to the transferable units of interest into which the
beneficial interest in the Trust, shall be divided from time
to time, including the shares of any and all Series or Classes
which may be established by the Trustees, and includes
fractions of Shares as well as whole Shares;
refers to Series of Shares established and designated under or in accordance
with the provisions of Article IV; refers to a class or sub-series of any
Series of Shares established and designated under and in accordance with the
provisions of Article IV;
means a record owner of Shares;
refers to the Investment Company Act of 1940 and the Rules and Regulations
thereunder, all as amended from time to time; shall have the meaning given it in
the 1940 Act;
shall mean this Agreement and Declaration of Trust as amended or restated
from time to time; and shall mean the By-Laws of the Trust as amended from time
to time.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company, to
offer Shareholders one or more investment programs primarily in securities and
debt instruments and to engage in any and all lawful acts or activities for
which business trusts may be formed under Chapter 1746 of the Ohio Revised Code.
ARTICLE III
THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc.
. Upon his execution of this Declaration of Trust or a
counterpart hereof or some other writing in which he accepts
such Trusteeship and agrees to the provisions hereof, Xxxxxxx
X. Xxxxxxxxxxxx shall become Trustee hereof.
. The Trustees serving as such, whether named above or hereafter
becoming a Trustee, may increase or decrease the number of
Trustees to a number other than the number theretofore
determined. No decrease in the number of Trustees shall have
the effect of removing any Trustee from office prior to the
expiration of his term, but the number of Trustees may be
decreased in conjunction with the removal of a Trustee
pursuant to subsection (e) of this Section 3.1.
. Each Trustee shall serve as a Trustee during the lifetime of the Trust
and until its termination as hereinafter provided or until such Trustee sooner
dies, resigns, retires or is removed. The Trustees may elect their own
successors and may, pursuant to Section 3.1(f) hereof, appoint Trustees to fill
vacancies; provided that, immediately after filling a vacancy, at least
two-thirds of the Trustees then holding office shall have been elected to such
office by the Shareholders at an annual or special meeting. If at any time less
than a majority of the Trustees then holding office were so elected, the
Trustees shall forthwith cause to be held as promptly as possible, and in any
event within 60 days, a meeting of Shareholders for the purpose of electing
Trustees to fill any existing vacancies.
. Any Trustee may resign his trust or retire as a Trustee, by
written instrument signed by him and delivered to the other
Trustees or to any officer of the Trust, and such resignation
or retirement shall take effect upon such delivery or upon
such later date as is specified in such instrument.
. Any Trustee may be removed with or without cause at any time:
(i) by written instrument, signed by at least two-thirds of
the number of Trustees prior to such removal, specifying the
date upon which such removal shall become effective, (ii) by
vote of the Shareholders holding not less than two-thirds of
the Shares then outstanding, cast in person or by proxy at any
meeting called for the purpose, or (iii) by a declaration in
writing signed by Shareholders holding not less than
two-thirds of the Shares then outstanding and filed with the
Trust's Custodian.
. Any vacancy or anticipated vacancy resulting from any reason, including
without limitation the death, resignation, retirement, removal or incapacity of
any of the Trustees, or resulting from an increase in the number of Trustees by
the Trustees may (but so long as there are at least three remaining Trustees,
need not unless required by the 0000 Xxx) be filled either by a majority of the
remaining Trustees through the appointment in writing of such other person as
such remaining Trustees in their discretion shall determine (unless a
shareholder election is required by the 0000 Xxx) or by the election by the
Shareholders, at a meeting called for the purpose, of a person to fill such
vacancy, and such appointment or election shall be effective upon the written
acceptance of the person named therein to serve as a Trustee and agreement by
such person to be bound by the provisions of this Declaration of Trust, except
that any such appointment or election in anticipation of a vacancy to occur by
reason of retirement, resignation, or increase in number of Trustees to be
effective at a later date shall become effective only at or after the effective
date of said retirement, resignation, or increase in number of Trustees. As soon
as any Trustee so appointed or elected shall have accepted such appointment or
election and shall have agreed in writing to be bound by this Declaration of
Trust and the appointment or election is effective, the Trust estate shall vest
in the new Trustee, together with the continuing Trustees, without any further
act or conveyance.
The death, resignation, retirement, removal, or incapacity of the
Trustees, or any one of them, shall not operate to annul or
terminate the Trust or to revoke or terminate any existing
agency or contract created or entered into pursuant to the
terms of this Declaration of Trust.
. Except to the extent required by the 1940 Act or under
circumstances which would justify his removal for cause, no
person ceasing to be a Trustee as a result of his death,
resignation, retirement, removal or incapacity (nor the estate
of any such person) shall be required to make an accounting to
the Shareholders or remaining Trustees upon such cessation.
. Subject to the provisions of this Declaration of Trust, the business of the
Trust shall be managed by the Trustees, and they shall have all powers necessary
or convenient to carry out that responsibility and the purpose of the Trust.
Without limiting the foregoing, the Trustees may adopt By-Laws not inconsistent
with this Declaration of Trust providing for the conduct of the business and
affairs of the Trust and may amend and repeal them to the extent that such
By-Laws do not reserve that right to the Shareholders; they may as they consider
appropriate elect and remove officers and appoint and terminate agents and
consultants and hire and terminate employees, any one or more of the foregoing
of whom may be a Trustee, and may provide for the compensation of all of the
foregoing; they may appoint from their own number, and terminate, any one or
more committees consisting of two or more Trustees, including without implied
limitation an executive committee, which may, when the Trustees are not in
session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in accordance with
Section 3.3 they may employ one or more Advisers, Administrators, Depositories
and Custodians and may authorize any Depository or Custodian to employ
subcustodians or agents and to deposit all or any part of such assets in a
system or systems for the central handling of securities and debt instruments,
retain transfer, dividend, accounting or Shareholder servicing agents or any of
the foregoing, provide for the distribution of Shares by the Trust through one
or more distributors, principal underwriters or otherwise, set record dates or
times for the determination of Shareholders or number of them with respect to
various matters; they may compensate or provide for the compensation of the
Trustees, officers, advisers, administrators, custodians, other agents,
consultants and employees of the Trust or the Trustees on such terms as they
deem appropriate; and in general they may delegate to any officer of the Trust,
to any committee of the Trustees and to any employee, adviser, administrator,
distributor, principal underwriter, depository, custodian, transfer and dividend
disbursing agent, or any other agent or consultant of the Trust such authority,
powers, functions and duties as they consider desirable or appropriate for the
conduct of the business and affairs of the Trust, including without implied
limitation the power and authority to act in the name of the Trust and of the
Trustees, to sign documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with
the 1940 Act or other applicable law, the Trustees shall have power and
authority:
. To invest and reinvest cash and other property, and to hold
cash or other property uninvested without in any event being
bound or limited by any present or future law or custom in
regard to investments by trustees;
. To sell, exchange, lend, pledge, mortgage, hypothecate, write options on
and lease any or all of the assets of the Trust;
. To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities, debt instruments or
property; and to execute and deliver proxies or powers of
attorney to such person or persons as the Trustees shall deem
proper, granting to such person or persons such power and
discretion with relation to securities, debt instruments or
property as the Trustees shall deem proper;
. To exercise powers and rights of subscription or otherwise which in any
manner arise out of ownership of securities or debt instruments;
. To hold any security, debt instrument or property in a form
not indicating any trust, whether in bearer, unregistered or
other negotiable form, or in the name of the Trustees or of
the Trust or in the name of a custodian, subcustodian or other
depository or a nominee or nominees or otherwise;
To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any
security or debt instrument of which is or was held in the
Trust; to consent to any contract, lease, mortgage, purchase
or sale of property by such corporation or issuer, and to pay
calls or subscriptions with respect to any security or debt
instrument held in the Trust;
To join with other holders of any securities or debt instruments
in acting through a committee, depository, voting trustee or
otherwise, and in that connection to deposit any security or
debt instrument with, or transfer any security or debt
instrument to, any such committee, depository or trustee, and
to delegate to them such power and authority with relation to
any security or debt instrument (whether or not so deposited
or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depository or trustee as the
Trustees shall deem proper;
. To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited to
claims for taxes;
To enter into joint ventures, general or limited partnerships and any other
combinations or associations;
. To borrow funds and to mortgage and pledge the assets of the Trust or any
part thereof to secure obligations arising in connection with such borrowing;
To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
and to mortgage and pledge the Trust property or any part
thereof to secure any of or all such obligations;
. To purchase and pay for entirely out of Trust property such insurance as
they may deem necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the assets of the
Trust and payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, consultants, investment advisers, managers, administrators,
distributors, principal underwriters, or independent contractors, or any thereof
(or any person connected therewith), of the Trust individually against all
claims and liabilities of every nature arising by reason of holding, being or
having held any such office or position, or by reason of any action alleged to
have been taken or omitted by any such person in any such capacity, including
any action taken or omitted that may be determined to constitute negligence;
provided, however, that insurance which protects the Trustees and officers
against liabilities rising from action involving willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
their offices may not be purchased; and
To pay pensions for faithful service, as deemed appropriate by
the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift
and other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and
other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust.
Except as otherwise provided by the 1940 Act or other applicable law,
this Declaration of Trust or the By-Laws, any action to be taken by the Trustees
may be taken by a majority of the Trustees present at a meeting of Trustees (a
quorum, consisting of at least a majority of the Trustees then in office, being
present), within or without Ohio, including any meeting held by means of a
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting, or
by written consents of a majority of the Trustees then in office (or such larger
or different number as may be required by the 1940 Act or other applicable law).
. Subject to compliance with the provisions of the 1940 Act, but notwithstanding
any limitations of present and future law or custom in regard to delegation of
powers by trustees generally, the Trustees may, at any time and from time to
time and without limiting the generality of their powers and authority otherwise
set forth herein, enter into one or more contracts with any one or more
corporations, trusts, associations, partnerships, limited partnerships, other
type of organizations, or individuals ("Contracting Party") to provide for the
performance and assumption of some or all of the following services, duties and
responsibilities to, for or of the Trust and/or the Trustees, and to provide for
the performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees may
determine appropriate:
. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect
to the investments of the Trust or of the assets belonging to
any Series of Shares of the Trust (as that phrase is defined
in subsection (a) of Section 4.2), to manage such investments
and assets, make investment decisions with respect thereto,
and to place purchase and sale orders for portfolio
transactions relating to such investments and assets;
. Subject to the general supervision of the Trustees and in
conformity with any policies of the Trustees with respect to
the operations of the Trust, to supervise all or any part of
the operations of the Trust, and to provide all or any part of
the administrative and clerical personnel, office space and
office equipment and services appropriate for the efficient
administration and operations of the Trust;
. To distribute the Shares of the Trust, to be principal underwriter of
such Shares, and/or to act as agent of the Trust in the sale of Shares and the
acceptance or rejection of orders for the purchase of Shares;
. To act as depository for and to maintain custody of the property of the
Trust and accounting records in connection therewith;
. To maintain records of the ownership of outstanding Shares,
the issuance and redemption and the transfer thereof, and to
disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the
instructions of any particular Shareholder to reinvest any
such dividends;
. To provide service with respect to the relationship of the Trust and its
Shareholders, records with respect to Shareholders and their Shares, and similar
matters; and
. To handle all or any part of the accounting responsibilities, whether
with respect to the Trust's properties, Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the Trust or a Contracting Party from entering
into subcontractual arrangements relative to any of the matters referred to in
Sections 3.3(a) through (g) hereof.
Subject to the provisions of the 1940 Act, the fact that:
(i) any of the Shareholders, Trustees or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter or distributor or agent of or
for any Contracting Party, or of or for any parent or affiliate of any
Contracting Party or that the Contracting Party or any parent or
affiliate thereof is a Shareholder or has an interest in the Trust, or
that
(ii) any Contracting Party may have a contract providing for
the rendering of any similar services to one or more other
corporations, trusts, associations, partnerships, limited partnerships
or other organizations, or has other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust and/or the
Trustees or disqualify any Shareholder, Trustee or officer of the Trust from
voting upon or executing the same or create any liability or accountability to
the Trust or its Shareholders, provided that in the case of any relationship or
interest referred to in the preceding clause (i) on the part of any Trustee or
officer of the Trust either (l) the material facts as to such relationship or
interest have been disclosed to or are known by the Trustees not having any such
relationship or interest and the contract involved is approved in good faith
reasonably justified by such facts by a majority of such Trustees not having any
such relationship or interest (even though such unrelated or disinterested
Trustees are less than a quorum of all of the Trustees), (2) the material facts
as to such relationship or interest and as to the contract have been disclosed
to or are known by the Shareholders not having such relationship or interest and
who are entitled to vote thereon and the contract involved is specifically
approved in good faith by majority vote of such Shareholders, or (3) the
specific contract involved is fair to the Trust as of the time it is authorized,
approved or ratified by the Trustees or by the Shareholders.
. The Trustees are authorized to pay or to cause to be paid out of the principal
or income of the Trust, or partly out of principal and partly out of income, and
to charge or allocate the same to, between or among such one or more of the
Series and Class that may be established and designated pursuant to Article IV,
as the Trustees deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses and charges for the services of the Trust's officers,
employees, investment adviser, administrator, distributor, principal
underwriter, auditor, counsel, depository, custodian, transfer agent, dividend
disbursing agent, accounting agent, Shareholder servicing agent, and such other
agents, consultants, and independent contractors and such other expenses and
charges as the Trustees may deem necessary or proper to incur. Without limiting
the generality of any other provision hereof, the Trustees shall be entitled to
reasonable compensation from the Trust for their services as Trustees and may
fix the amount of such compensation.
. Title to all of the assets of the Trust shall at all times be considered
as vested in the Trustees.
ARTICLE IV
SHARES
. The beneficial interest in the Trust shall be divided into Shares, all without
par value. The Trustees shall have the authority from time to time to issue or
reissue Shares in one or more Series of Shares (including without limitation the
Series specifically established and designated in Section 4.2), as they deem
necessary or desirable, to establish and designate such Series, and to fix and
determine the relative rights and preferences as between the different Series of
Shares as to right of redemption and the price, terms and manner of redemption,
special and relative rights as to dividends and other distributions and on
liquidation, sinking or purchase fund provisions, conversion rights, and
conditions under which the several Series shall have separate voting rights or
no voting rights.
The Shares of each Series may be issued or reissued from time to time
in one or more Classes, as determined by the Board of Trustees pursuant to
resolution. Each Class shall be appropriately designated, prior to the issuance
of any shares thereof, by some distinguishing letter, number or title. All
Shares within a Class shall be alike in every particular. All Shares of each
Series shall be of equal rank and have the same powers, preferences and rights,
and shall be subject to the same qualifications, limitations and restrictions
without distinction between the shares of different Classes thereof, except with
respect to such differences among such Classes, as the Board of Trustees shall
from time to time determine to be necessary or desirable, including differences
in the rate or rates of dividends or distributions. The Board of Trustees may
from time to time increase the number of Shares allocated to any Class already
created by providing that any unissued Shares of the applicable Series shall
constitute part of such Class, or may decrease the number of Shares allocated to
any Class already created by providing that any unissued Shares previously
assigned to such Class shall no longer constitute part thereof. The Board of
Trustees is hereby empowered to classify or reclassify from time to time any
unissued Shares of each Series by fixing or altering the terms thereof and by
assigning such unissued shares to an existing or newly created Class.
Notwithstanding anything to the contrary in this paragraph the Board of Trustees
is hereby empowered (i) to redesignate any issued Shares of any Series by
assigning a distinguishing letter, number or title to such shares and (ii) to
reclassify all or any part of the issued Shares of any Series to make them part
of an existing or newly created Class.
The number of authorized Shares and the number of Shares of each Series
and Class that may be issued is unlimited, and the Trustees may issue Shares of
any Series or Class for such consideration and on such terms as they may
determine (or for no consideration if pursuant to a Share dividend or split-up),
all without action or approval of the Shareholders. All Shares when so issued on
the terms determined by the Trustees shall be fully paid and non-assessable (but
may be subject to mandatory contribution back to the Trust as provided in
subsection (h) of Section 4.2). The Trustees may classify or reclassify any
unissued Shares or any Shares previously issued and reacquired of any Series or
Class into one or more Series or Classes that may be established and designated
from time to time. The Trustees may hold as treasury Shares (of the same or some
other Series), reissue for such consideration and on such terms as they may
determine, or cancel, at their discretion from time to time, any Shares of any
Series or Class reacquired by the Trust.
The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the holders of
Shares entitled to be treated as such, to the extent provided or referred to in
Section 5.3.
The establishment and designation of any Series of Shares in addition
to those established and designated in Section 4.2, or of any Class of Shares,
shall be effective upon the execution by a majority of the then Trustees of an
instrument setting forth such establishment and designation and the relative
rights and preferences of such Series or Class, or as otherwise provided in such
instrument. At any time that there are no Shares outstanding of any particular
Series or Class previously established and designated the Trustees may by an
instrument executed by a majority of their number abolish that Series or Class
and the establishment and designation thereof. Each instrument referred to in
this paragraph shall have the status of an amendment to this Declaration of
Trust.
Any Trustee, officer or other agent of the Trust, and any organization
in which any such person is interested may acquire, own, hold and dispose of
Shares to the same extent as if such person were not a Trustee, officer or other
agent of the Trust; and the Trust may issue and sell or cause to be issued and
sold and may purchase Shares from any such person or any such organization
subject only to the general limitations, restrictions or other provisions
applicable to the sale or purchase of Shares generally.
. Without limiting the authority of the Trustees set forth in Section 4.1 to
establish and designate any further Series, the Trustees hereby establish and
designate two Series of Shares: the "AIT Vision U.S. Equity Portfolios" and the
"Domino Equity Income Fund". The Shares of these Series and any Shares of any
further Series or Class that may from time to time be established and designated
by the Trustees shall (unless the Trustees otherwise determine with respect to
some further Series or Class at the time of establishing and designating the
same) have the following relative rights and preferences:
. All consideration received by the Trust for the issuance 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, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to that Series 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, including any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, together with any General Items
allocated to that Series or Class as provided in the following sentence, 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 Items"), the Trustees shall
allocate such General Items 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 they, in their sole discretion, deem fair and equitable; and any
General Items 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 and Classes for all purposes.
The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall
be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding
upon the Shareholders.
. The assets belonging to each particular Series and Class thereof shall be
charged with the liabilities of the Trust in respect of that Series or Class and
all expenses, costs, charges and reserves attributable to that Series or Class,
and any general liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as belonging to any particular Series shall
be allocated and charged by the Trustees to and among any one or more of the
Series and 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 allocated and
so charged to a Series or Class are herein referred to as "liabilities belonging
to" that Series or Class. Each allocation of liabilities, expenses, costs,
charges and reserves by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes.
. Dividends and distributions on Shares of a particular Series may be paid
with such frequency as the Trustees may determine, which may be daily or
otherwise pursuant to a standing resolution or resolutions adopted only once or
with such frequency as the Trustees may determine, to the holders of Shares of
that Series, from such of the estimated income and capital gains, accrued or
realized, from the assets belonging to that Series, as the Trustees may
determine, after providing for actual and accrued liabilities belonging to that
Series. All dividends and distributions on Shares of a particular Series shall
be distributed pro rata to the holders of that Series in proportion to the
number of Shares of that Series held by such holders at the date and time of
record established for the payment of such dividends or distributions, except
that in connection with any dividend or distribution program or procedure the
Trustees may determine that no dividend or distribution shall be payable on
Shares as to which the Shareholder's purchase order and/or payment have not been
received by the time or times established by the Trustees under such program or
procedure, and except that if Classes have been established for any Series, the
rate of dividends or distributions may vary among such Class pursuant to
resolution, which may be a standing resolution, of the Board of Trustees. Such
dividends and distributions may be made in cash or Shares or a combination
thereof as determined by the Trustees or pursuant to any program that the
Trustees may have in effect at the time for the election by each Shareholder of
the mode of the making of such dividend or distribution to that Shareholder. Any
such dividend or distribution paid in Shares will be paid at the net asset value
thereof as determined in accordance with subsection (h) of Section 4.2.
The Trust intends to qualify each Series as a "regulated
investment company" under the Internal Revenue Code of 1954,
as amended, or any successor or comparable statute thereto,
and regulations promulgated thereunder. Inasmuch as the
computation of net income and gains for federal income tax
purposes may vary from the computation thereof on the books of
the Trust, the Board of Trustees shall have the power, in its
sole discretion, to distribute in any fiscal year as
dividends, including dividends designated in whole or in part
as capital gains distributions, amounts sufficient, in the
opinion of the Board of Trustees, to enable each Series to
qualify as a regulated investment company and to avoid
liability of the Series for federal income tax in respect of
that year. However, nothing in the foregoing shall limit the
authority of the Board of Trustees to make distributions
greater than or less than the amount necessary to qualify as a
regulated investment company and to avoid liability of each
Series for such tax.
. In event of the liquidation or dissolution of the Trust, the Shareholders
of each Series or Class that has been established and designated shall be
entitled to receive, as a Series or Class, when and as declared by the Trustees,
the excess of the assets belonging to that Series or Class over the liabilities
belonging to that Series or Class. The assets so distributable to the
Shareholders of any particular Series or Class shall be distributed among such
Shareholders in proportion to the number of Shares of that Series or Class held
by them and recorded on the books of the Trust. The liquidation of any
particular Series or Class may be authorized by vote of a majority of the
Trustees then in office subject to the approval of a majority of the outstanding
voting Shares of that Series or Class, as defined in the 1940 Act.
. All Shares shall have "equal voting rights" as such term is defined in
the Investment Company Act of 1940 and except as otherwise provided by that Act
or rules, regulations or orders promulgated thereunder. On each matter submitted
to a vote of the Shareholders, each Series shall vote as a separate series
except (i) as to any matter with respect to which a vote of all Series voting as
a single series is required by the 1940 Act or rules and regulations promulgated
thereunder, or would be required under the Ohio General Corporation Law if the
Trust were an Ohio corporation; and (ii) to any matter which the Trustees have
determined affects only the interests of one or more Series or Class, only the
holders of Shares of the one or more affected Series or Classes shall be
entitled to vote thereon.
. Each holder of Shares of a particular Series or Class shall have the
right at such times as may be permitted by the Trust, but no less frequently
than once each week, to require the Trust to redeem all or any part of his
Shares of that Series or Class at a redemption price equal to the net asset
value per Share of that Series or Class next determined in accordance with
subsection (h) of this Section 4.2 after the Shares are properly tendered for
redemption. Payment of the redemption price shall be in cash; provided, however,
that if the Trustees determine, which determination shall be conclusive, that
conditions exist which make payment wholly in cash unwise or undesirable, the
Trust may make payment wholly or partly in securities or other assets belonging
to the Series or Class of which the Shares being redeemed are part at the value
of such securities or assets used in such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of any
Series to require the Trust to redeem Shares of that Series during any period or
at any time when and to the extent permissible under the 1940 Act, and such
redemption is conditioned upon the Trust having funds or property legally
available therefor.
. Each Share of each Series or Class that has been established and
designated is subject to redemption by the Trust at the redemption price which
would be applicable if such Share was then being redeemed by the Shareholder
pursuant to subsection (f) of this Section 4.2:(a) at any time, if the Trustees
determine in their sole discretion that failure to so redeem may have materially
adverse consequences to all or any of the holders of the Shares, or any Series
or Class thereof, of the Trust, or (b) upon such other conditions as may from
time to time be determined by the Trustees and set forth in the then current
Prospectus of the Trust with respect to maintenance of Shareholder accounts of a
minimum amount. Upon such redemption the holders of the Shares so redeemed shall
have no further right with respect thereto other than to receive payment of such
redemption price.
. The net asset value per Share of any Series or Class shall be
the quotient obtained by dividing the value of the net assets
of that Series or Class (being the value of the assets
belonging to that Series or Class less the liabilities
belonging to that Series or Class) by the total number of
Shares of that Series or Class outstanding, all determined in
accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the
Trustees from time to time, and net asset value shall be
determined separately for each Class of a Series.
The Trustees may determine to maintain the net asset value per
Share of any Series or Class at a designated constant dollar
amount and in connection therewith may adopt procedures not
inconsistent with the 1940 Act for the continuing declarations
of income attributable to that Series or Class as dividends
payable in additional Shares of that Series or Class at the
designated constant dollar amount and for the handling of any
losses attributable to that Series or Class . Such procedures
may provide that in the event of any loss each Shareholder
shall be deemed to have contributed to the capital of the
Trust attributable to that Series or Class his pro rata
portion of the total number of Shares required to be canceled
in order to permit the net asset value per Share of that
Series or Class to be maintained, after reflecting such loss,
at the designated constant dollar amount. Each Shareholder of
the Trust shall be deemed to have agreed, by his investment in
any Series with respect to which the Trustees shall have
adopted any such procedure, to make the contribution referred
to in the preceding sentence in the event of any such loss.
. All Shares of each particular Series or Class shall be
transferable, but transfers of Shares of a particular Series
or Class will be recorded on the Share transfer records of the
Trust applicable to that Series or Class only at such times as
Shareholders shall have the right to require the Trust to
redeem Shares of that Series or Class and at such other times
as may be permitted by the Trustees.
. All Shares of each particular Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to the
liabilities belonging to that Series), and each Share of any particular Series
shall be equal to each other Share of that Series; but the provisions of this
sentence shall not restrict any distinctions permissible under this Section 4.2
that may exist with respect to a Class of the same Series. The Trustees may from
time to time divide or combine the Shares of any particular Series or Class into
a greater or lesser number of Shares of that Series or Class without thereby
changing the proportionate beneficial interest in the assets belonging to that
Series or Class or in any way affecting the rights of Shares of any other Series
or Class.
. Any fractional Share of any Series or Class, if any such
fractional Share is outstanding, shall carry proportionately
all the rights and obligations of a whole Share of that Series
or Class, including with respect to voting, receipt of
dividends and distributions, redemption of Shares, and
liquidation of the Trust.
. Subject to compliance with the requirements of the 1940 Act,
the Trustees shall have the authority to provide that holders
of Shares of any Series or Class shall have the right to
convert said Shares into Shares of one or more other Series or
Classes in accordance with such requirements and procedures as
may be established by the Trustees.
. The ownership of Shares shall be recorded on the books of the Trust or of a
transfer or similar agent for the Trust, which books shall be maintained
separately for the Shares of each Series and Class that has been established and
designated. No certificates certifying the ownership of Shares need be issued
except as the Trustees may otherwise determine from time to time. The Trustees
may make such rules as they consider appropriate for the issuance of Share
certificates, the use of facsimile signatures, the transfer of Shares and
similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to who are
the Shareholders and as to the number of Shares of each Series and Class held
from time to time by each such Shareholder.
. The Trustees may accept investments in the Trust from such persons and on such
terms and for such consideration, not inconsistent with the provisions of the
1940 Act, as they from time to time authorize. The Trustees may authorize any
distributor, principal underwriter, custodian, transfer agent or other person to
accept orders for the purchase of Shares that conform to such authorized terms
and to reject any purchase orders for Shares whether or not conforming to such
authorized terms.
. Shareholders shall have no preemptive or other right to subscribe to any
additional Shares or other securities issued by the Trust.
. Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the Trust nor entitle the
representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust. Ownership of Shares shall not entitle
the Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
. The Shareholders shall have power to vote only (i) for the election or removal
of Trustees as provided in Section 3.1, (ii) with respect to any contract with a
Contracting Party as provided in Section 3.3 as to which Shareholder approval is
required by the 1940 Act, (iii) with respect to any termination or
reorganization of the Trust or any Series to the extent and as provided in
Sections 7.1 and 7.2, (iv) with respect to any amendment of this Declaration of
Trust to the extent and as provided in Section 7.3, (v) to the same extent as
the stockholders of an Ohio business corporation as to whether or not a court
action, proceeding or claim should or should not be brought or maintained
derivatively or as a class action on behalf of the Trust or the Shareholders,
and (vi) with respect to such additional matters relating to the Trust as may be
required by the 1940 Act, this Declaration of Trust, the By-Laws or any
registration of the Trust with the Commission (or any successor agency) or any
state, or as the Trustees may consider necessary or desirable. There shall be no
cumulative voting in the election of any Trustee or Trustees. Shares may be
voted in person or by proxy. A proxy with respect to Shares held in the name of
two or more persons shall be valid if executed by any one of them unless at or
prior to exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required by law, this Declaration of Trust or the
By-Laws to be taken by Shareholders.
. Meetings (including meetings involving only the holders of Shares of one or
more but less than all Series or Classes) of Shareholders may be called by the
Trustees from time to time for the purpose of taking action upon any matter
requiring the vote or authority of the Shareholders as herein provided or upon
any other matter deemed by the Trustees to be necessary or desirable. Written
notice of any meeting of Shareholders shall be given or caused to be given by
the Trustees by mailing such notice at least seven days before such meeting,
postage prepaid, stating the time, place and purpose of the meeting, to each
Shareholder at the Shareholder's address as it appears on the records of the
Trust. If the Trustees shall fail to call or give notice of any meeting of
Shareholders (including a meeting involving only the holders of Shares of one or
more but less than all Series or Classes) for a period of 30 days after written
application by Shareholders holding at least 25% of the Shares then outstanding
requesting a meeting be called for any other purpose requiring action by the
Shareholders as provided herein or in the By-Laws, then Shareholders holding at
least 25% of the Shares then outstanding may call and give notice of such
meeting, and thereupon the meeting shall be held in the manner provided for
herein in case of call thereof by the Trustees.
. For the purpose of determining the Shareholders who are entitled to vote or
act at any meeting or any adjournment thereof, or who are entitled to
participate in any dividend or distribution, or for the purpose of any other
action, the Trustees may from time to time close the transfer books for such
period, not exceeding 30 days (except at or in connection with the termination
of the Trust), as the Trustees may determine; or without closing the transfer
books the Trustees may fix a date and time not more than 60 days prior to the
date of any meeting of Shareholders or other action as the date and time of
record for the determination of Shareholders entitled to vote at such meeting or
any adjournment thereof or to be treated as Shareholders of record for purposes
of such other action, and any Shareholder who was a Shareholder at the date and
time so fixed shall be entitled to vote at such meeting or any adjournment
thereof or (subject to any provisions permissible under subsection (c) of
Section 4.2 with respect to dividends or distributions on Shares that have not
been ordered and/or paid for by the time or times established by the Trustees
under the applicable dividend or distribution program or procedure then in
effect) to be treated as a Shareholder of record for purposes of such other
action, even though he has since that date and time disposed of his Shares, and
no Shareholder becoming such after that date and time shall be so entitled to
vote at such meeting or any adjournment thereof or to be treated as a
Shareholder of record for purposes of such other action.
. A majority of the Shares of each Series, or of all Series if voting as a
single series is required, which are entitled to vote shall be a quorum for the
transaction of business at a Shareholders' meeting, but any lesser number shall
be sufficient for adjournments. Any adjourned session or sessions may be held,
within a reasonable time after the date set for the original meeting without the
necessity of further notice. A majority of the Shares voted, at a meeting of
which a quorum is present, shall decide any questions and a plurality shall
elect a Trustee, except when a different vote is required or permitted by any
provision of the 1940 Act or other applicable law or by this Declaration of
Trust or the By-Laws.
. Subject to the provisions of the 1940 Act and other applicable law, any action
taken by Shareholders may be taken without a meeting if a majority of
Shareholders entitled to vote on the matter (or such other proportion thereof as
shall be required by the 1940 Act or by any express provision of this
Declaration of Trust or the By-Laws) consent to the action in writing and such
written consents are filed with the records of the meetings of Shareholders.
Such consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
. The records of the Trust shall be open to inspection by Shareholders to the
same extent as is permitted stockholders of an Ohio corporation under the Ohio
General Corporation Law.
. The By-Laws may include further provisions for Shareholders' votes and
meetings and related matters not inconsistent with the provisions hereof.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
. All persons extending credit to, contracting with or having any claim against
any Series of the Trust (or the Trust on behalf of any Series) shall look only
to the assets of that Series for payment under such credit, contract or claim;
and neither the Shareholders nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be personally liable
therefor. Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only by or for the Trust or
the Trustees and not personally. Nothing in this Declaration of Trust shall
protect any Trustee or officer against any liability to the Trust or the
Shareholders to which such Trustee or officer would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee or of such
officer.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officers or officer shall give notice that
this Declaration of Trust is on file with the Secretary of the State of Ohio and
shall recite to the effect that the same was executed or made by or on behalf of
the Trust or by them as Trustees or Trustee or as officers or officer and not
individually and that the obligations of such instrument are not binding upon
any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust, but the omission thereof shall not operate to
bind any Trustees or Trustee or officers or officer or Shareholders or
Shareholder individually.
. The exercise by the Trustees of their powers and discretions hereunder shall
be binding upon everyone interested. A Trustee shall be liable for his own
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee, and for nothing else,
and shall not be liable for errors of judgment or mistakes of fact or law.
Subject to the foregoing, (a) the Trustees shall not be responsible or liable in
any event for any neglect or wrongdoing of any officer, agent, employee,
consultant, adviser, administrator, distributor or principal underwriter,
custodian or transfer, dividend disbursing, Shareholder servicing or accounting
agent of the Trust, nor shall any Trustee be responsible for the act or omission
of any other Trustee; (b) the Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust
and their duties as Trustees, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such advice;
and (c) in discharging their duties, the Trustees, when acting in good faith,
shall be entitled to rely upon the books of account of the Trust and upon
written reports made to the Trustees by any officer appointed by them, any
independent public accountant, and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of a Contracting
Party appointed by the Trustees pursuant to Section 3.3. The Trustees as such
shall not be required to give any bond or surety or any other security for the
performance of their duties. Nothing stated herein is intended to detract from
the protection accorded to Trustees by Ohio Revised Code Sections 1746.08 and
1701.59, as amended from time to time.
. In case any Shareholder or former Shareholder shall be charged or held to be
personally liable for any obligation or liability of the Trust solely by reason
of being or having been a Shareholder and not because of such Shareholder's acts
or omissions or for some other reason, the Trust (upon proper and timely request
by the Shareholder) shall assume the defense against such charge and satisfy any
judgment thereon, and the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives or in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled out of the assets of the Trust estate to be held harmless from and
indemnified against all loss and expense arising from such liability; provided
that, in the event the Trust shall consist of more than one Series, Shareholders
of a particular Series who are faced with claims or liabilities solely by reason
of their status as Shareholders of that Series shall be limited to the assets of
that Series for recovery of such loss and related expenses. The rights accruing
to a Shareholder under this Section 6.3 shall not exclude any other right to
which such Shareholder may be lawfully entitled, nor shall anything herein
contained restrict the right of the Trust to indemnify or reimburse a
Shareholder in any appropriate situation even though not specifically provided
herein.
Subject to and except as otherwise provided in the Securities Act of 1933, as
amended, and the 1940 Act, the Trust shall indemnify each of its Trustees and
officers (including persons who serve at the Trust's request as directors,
officers or trustees of another organization in which the Trust has any interest
as a shareholder, creditor or otherwise (hereinafter referred to as a "Covered
Person") against all liabilities, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any action, suit
or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or may
have been involved as a party or otherwise or with which such person may be or
may have been threatened, while in office or thereafter, by reason of being or
having been such a Trustee or officer, director or trustee, and except that no
Covered Person shall be indemnified against any liability to the Trust or its
Shareholders to which such Covered Person would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Covered Person's office.
. The Trust shall advance attorneys' fees or other expenses incurred by a
Covered Person in defending a proceeding to the full extent permitted by the
Securities Act of 1933, as amended, the 1940 Act, and Ohio Revised Code Chapter
1707, as amended. In the event any of these laws conflict with Ohio Revised Code
Section 1701.13(E), as amended, these laws, and not Ohio Revised Code Section
1701.13(E), shall govern.
The right of indemnification provided by this Article VI shall not be
exclusive of or affect any other rights to which any such Covered Person may be
entitled. As used in this Article VI, "Covered Person" shall include such
person's heirs, executors and administrators. Nothing contained in this article
shall affect any rights to indemnification to which personnel of the Trust,
other than Trustees and officers, and other persons may be entitled by contract
or otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of any such person.
. No person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Trustees or
to see to the application of any payments made or property transferred to the
Trust or upon its order.
ARTICLE VII
MISCELLANEOUS
. Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by a majority of the
Trustees then in office subject to a favorable vote of a majority of the
outstanding voting Shares, as defined in the 1940 Act, of each Series voting
separately by Series.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with the
provisions of subsection (d) of Section 4.2.
. The Trustees may sell, convey and transfer the assets of the Trust, or the
assets belonging to any one or more Series, to another trust, partnership,
association or corporation organized under the laws of any state of the United
States, or to the Trust to be held as assets belonging to another Series of the
Trust, in exchange for cash, shares or other securities (including, in the case
of a transfer to another Series of the Trust, Shares of such other Series) with
such transfer being made subject to, or with the assumption by the transferee
of, the liabilities belonging to each Series the assets of which are so
transferred; provided, however, that if shareholder approval is required by the
1940 Act, no assets belonging to any particular Series shall be so transferred
unless the terms of such transfer shall have first been approved at a meeting
called for the purpose by the affirmative vote of the holders of a majority of
the outstanding voting Shares, as defined in the 1940 Act, of that Series.
Following such transfer, the Trustees shall distribute such cash, shares or
other securities (giving due effect to the assets and liabilities belonging to
and any other differences among the various Series the assets belonging to which
have so been transferred) among the Shareholders of the Series the assets
belonging to which have been so transferred; and if all of the assets of the
Trust have been so transferred, the Trust shall be terminated.
. All rights granted to the Shareholders under this Declaration of Trust are
granted subject to the reservation of the right to amend this Declaration of
Trust as herein provided, except that no amendment shall repeal the limitations
on personal liability of any Shareholder or Trustee or repeal the prohibition of
assessment upon the Shareholders without the express consent of each Shareholder
or Trustee involved. Subject to the foregoing, the provisions of this
Declaration of Trust (whether or not related to the rights of Shareholders) may
be amended at any time by an instrument in writing signed by a majority of the
then Trustees (or by an officer of the Trust pursuant to the vote of a majority
of such Trustees), when authorized so to do by the vote in accordance with
subsection (e) of Section 4.2 of Shareholders holding a majority of the Shares
entitled to vote, except that amendments either (a) establishing and designating
any new Series of Shares not established and designated in Section 4.2, or any
Class or (b) having the purpose of changing the name of the Trust or the name of
any Shares theretofore established and designated or of supplying any omission,
curing any ambiguity or curing, correcting or supplementing any provision hereof
which is internally inconsistent with any other provision hereof or which is
defective or inconsistent with the 1940 Act or with the requirements of the
Internal Revenue Code and applicable regulations for the Trust's obtaining the
most favorable treatment thereunder available to regulated investment companies,
shall not require authorization by Shareholder vote. If Shares have been issued
in Series or Classes and such amendment would not affect Shares of all Series or
Classes equally, no such amendment may be made except with the vote or consent
of the holders of a majority of the Shares of each Series or Class affected by
such amendment. Subject to the foregoing, any such amendment shall be effective
as provided in the instrument containing the terms of such amendment or, if
there is no provision therein with respect to effectiveness, upon the execution
of such instrument and of a certificate (which may be a part of such instrument)
executed by a Trustee or officer of the Trust to the effect that such amendment
has been duly adopted.
20
. The original or a copy of this instrument and of each amendment hereto shall
be kept at the office of the Trust where it may be inspected by any Shareholder.
A copy of this instrument and of each amendment hereto shall be filed by the
Trust with the Secretary of the State of Ohio, as well as any other governmental
office where such filing may from time to time be required, but the failure to
make any such filing shall not impair the effectiveness of this instrument or
any such amendment. Anyone dealing with the Trust may rely on a certificate by
an officer of the Trust as to whether or not any such amendments have been made,
as to the identities of the Trustees and officers, and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument, and all expressions like "herein",
"hereof" and "hereunder" shall be deemed to refer to this instrument as a whole
as the same may be amended or affected by any such amendments. The masculine
gender shall include the feminine and neuter genders. Headings are placed herein
for convenience of reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts each of which shall be
deemed an original.
. This Declaration of Trust is made in the State of Ohio, and it is created
under and is to be governed by and construed and administered according to the
laws of said State, including the Ohio General Corporation Law as the same may
be amended from time to time, but the reference to said Corporation Law is not
intended to give the Trust, the Trustees, the Shareholders or any other person
any right, power, authority or responsibility available only to or in connection
with an entity organized in corporate form. The Trust shall be of the type
referred to in Section 1746.01 of the Ohio Revised Code, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand in
Southlake, Texas for himself and his assigns, as of the day and year first above
written.
/s/
Xxxxxxx X. Xxxxxxxxxxxx
STATE OF TEXAS )
) ss:
COUNTY OF TARRANT )
Before me, a Notary Public in and for said county and state, personally
appeared the above named Xxxxxxx X. Xxxxxxxxxxxx, who acknowledged that he did
sign the foregoing instrument and that the same is his free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on this 8th day of August, 1995.
/s/
Xxxxxxx X. Xxxx
Notary Public
My Commission Expires: 11-12-97
