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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 18, 1997
1933 Act Registration No. 33_______
1940 Act Registration No. 811______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM N-1A EL
REGISTRATION STATEMENT UNDER THE [X]
SECURITIES ACT OF 1933
Pre-Effective Amendment No. [ ]
Post-Effective Amendment No. [ ]
and/or
REGISTRATION STATEMENT UNDER THE [X]
INVESTMENT COMPANY ACT OF 1940
Amendment No. [ ]
(Check appropriate box or boxes)
IMPACT MANAGEMENT INVESTMENT TRUST
(exact name of Registrant as Specified in Charter)
1875 Ski Time Square Drive, Suite One
Steamboat Springs, CO 80487
(Address of Principal Executive Office) (Zip Code)
Registrant's Telephone Number, including Area Code: (970) 879-1189
Charles R. Clark
Chairman
Impact Management Investment Trust
1875 Ski Time Square Drive, Suite One
Steamboat Springs, CO 80487
(Name and Address of Agent for Service)
Registrant is registering an indefinite number of its shares under the
Securities Act of 1933, as amended, pursuant to Rule 24f-2 under the Investment
Company Act of 1940, as amended. Approximate date of proposed sale to the
public: immediately upon effectiveness.
It is proposed that this filing will become effective (check appropriate
box)
-- immediately upon filing pursuant to paragraph (b)
-- on (date) pursuant to paragraph (b)
-- 60 days after filing pursuant to paragraph (a)(1)
-- on (date) pursuant to paragraph (a)(1)
-- 75 days after filing pursuant to paragraph (a)(2)
-- on (date) pursuant to paragraph (a)(2) of Rule 485
If appropriate, check the following box:
-- this post-effective amendment designates a new effective date
for a previously filed post-effective amendment
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
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IMPACT MANAGEMENT INVESTMENT TRUST
IMPACT MANAGEMENT GROWTH PORTFOLIO
CROSS-REFERENCE SHEET
BETWEEN ITEMS ENUMERATED IN PART A
OF FORM N-1A AND PROSPECTUS
ITEM NUMBER
OF FORM N-1A LOCATION IN PROSPECTUS
------------ ----------------------
1. Cover Page...........................Cover Page
2. Synopsis.............................Summary of Trust Expenses
3. Condensed Financial Information......Inapplicable
4. General Description of Registrant....Trust Information, The Trust
5. Management of the Fund...............Trust Information
5A. Management's Discussion of
Fund Performance.....................Inapplicable
6. Capital Stock and Other Securities...The Trust
7. Purchase of Securities Being
Offered..............................How to Purchase Shares
8. Redemption or Repurchase.............How the Redeem Shares
9. Legal Proceedings....................Inapplicable
<PAGE> 3
IMPACT MANAGEMENT INVESTMENT TRUST
IMPACT MANAGEMENT GROWTH PORTFOLIO
CROSS-REFERENCE SHEET
BETWEEN ITEMS ENUMERATED IN PART B
OF FORM N-1A AND STATEMENT OF ADDITIONAL INFORMATION
ITEM NUMBER LOCATION IN STATEMENT OF
OF FORM N-1A ADDITIONAL INFORMATION
------------ ------------------------
10. Cover Page...........................Cover Page
11. Table of Contents....................Table of Contents
12. General Information and History......General Information About The Trust
13. Investment Objectives and Policies...Investment Objective and Policies;
Types of Investments
14. Management of the Fund...............Impact Management Investment Trust
Management
15. Control Persons and Principal
Holders of Securities................Impact Management Investment Trust
Management
16. Investment Advisory and Other
Services.............................Investment Advisor Services
17. Brokerage Allocation.................Brokerage Transactions
18. Capital Stock and Other Securities...The Trust (in the Prospectus)
19. Purchase, Redemption and Pricing of
Securities Being Offered.............Purchasing Shares; Determining Net
Asset Value; Redeeming Shares
20. Tax Status...........................Tax Status
21. Underwriters.........................Principal Distributor
22. Calculation of Performance Data......Total Return; Yield; Performance
Comparisons
23. Financial Statements.................Inapplicable
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===============================================================================
IMPACT MANAGEMENT INVESTMENT TRUST
IMPACT MANAGEMENT GROWTH PORTFOLIO
===============================================================================
Impact Management Investment Trust (the "Trust") is a no-load, open-end
management investment company that offers a convenient and economical means of
investing in professionally managed portfolios of securities. This Prospectus
offers shares (the "Shares") of Impact Management Growth Portfolio (the
"Portfolio") which represent interests in a diversified portfolio of the Trust.
The investment objective of the Portfolio is to provide capital appreciation
through investing primarily in equity securities of companies believed to have
prospects for above-average growth in earnings, or where significant, positive
fundamental changes are taking place.
THE SHARES OFFERED BY THIS PROSPECTUS ARE NOT DEPOSITS OR OBLIGATIONS OF ANY
BANK, ARE NOT ENDORSED OR GUARANTEED BY ANY BANK, AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE BOARD, OR ANY OTHER
GOVERNMENT AGENCY. INVESTMENT IN THESE SHARES INVOLVES INVESTMENT RISK,
INCLUDING THE POSSIBLE LOSS OF PRINCIPAL.
This prospectus contains the information you should read and know before you
invest in Shares of the Portfolio. Please read this prospectus carefully and
keep this prospectus for future reference. The Trust has filed a Statement of
Additional Information dated _______________, 1997, with the Securities and
Exchange Commission. The information contained in the Statement of Additional
Information is incorporated by reference into this prospectus. You may request
a copy of the Statement of Additional Information, free of charge, or make
inquiries about the Trust by contacting Impact Management Services, Inc., the
Trust's Administrator by calling 1-888-467-2284.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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PROSPECTUS DATED _________________, 1997
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CONTENTS
SUMMARY OF TRUST EXPENSES...............................................1
GENERAL INFORMATION.....................................................2
INVESTMENT INFORMATION..................................................2
Investment Objective..............................................2
Investment Policies...............................................2
Acceptable Investments............................................3
Portfolio Turnover................................................4
Temporary Defensive Positions.....................................4
Risk factors......................................................5
Investment Limitations............................................6
NET ASSET VALUE.........................................................7
HOW TO PURCHASE SHARES..................................................7
Investing in the Portfolio........................................7
Minimum Investment Required.......................................8
Shareholder Inquiries and Services................................8
Certificates and Confirmations....................................8
Dividends and Distributions.......................................8
HOW TO REDEEM SHARES.....................................................8
Accounts With Low Balances.........................................9
TRUST INFORMATION........................................................10
Management of the Trust............................................10
Distribution of Shares.............................................11
Administration of the Trust........................................11
Expenses of the Trust..............................................11
Brokerage Transactions.............................................11
THE TRUST................................................................12
General Information................................................12
Voting Rights......................................................12
Massachusetts Partnership Law......................................12
TAX INFORMATION..........................................................12
Federal Income Tax.................................................13
PERFORMANCE ADVERTISING..................................................14
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SUMMARY OF FUND EXPENSES
SHAREHOLDER TRANSACTION EXPENSE
Maximum Sales Load Imposed on Purchases.................................None
Maximum Sales Load Imposed on Reinvested Dividends......................None
Deferred Sales Charges..................................................None
Redemption Fees.........................................................None
Exchange Fee............................................................None
ANNUAL FUND OPERATING EXPENSES
(as a percentage of average net assets)
Management Fees...................................................... 2.25%
12b-1 Fees........................................................... None
Other Expenses*...................................................... 0.22%
Administrative Fees+........................................ 0.22%
Total Fund Operating Expenses*....................................... 2.47%
*estimatedted
+ The Administration Fee is an annual fee of $165 per account. Because there is
no way to accurately predict the number of accounts which will exist, the
percentage of net assets is estimated based on an estimated average account
value of $75,000. The actual percentage of net asset value may be more or less
than the estimate shown.
The purpose of the tables is to help you understand all expenses and fees that
you would bear directly or indirectly as a Fund shareholder. However, because
neither the Trust nor the Portfolio have an operating history, only percentage
fees which are set by contract can be accurately predicted. Because of the
difficulty of predicting the size of the Portfolio, the number of shareholder
accounts, or the exact level of expenses, the fees and expenses shown above as
estimated are not necessarily reflective of the experience the Portfolio will
have during the first year of operations and are subject to potential
significant material deviation. The expenses and fees shown are estimated for
the fiscal year starting on the date the Portfolio commences business and
ending on September 30, 1997.
EXAMPLE
You would pay the following expenses on a $1,000 investment, assuming (1) 5%
annual return, (2) redemption at the end of each time period and (3)
reinvestment of all dividends and capital distribution.
1 Year 3 Years
------ -------
$_____ $______
THIS EXAMPLE SHOULD NOT BE CONSIDERED A REPRESENTATION OF PAST OR FUTURE
EXPENSES OR PERFORMANCE. ACTUAL EXPENSES IN THE FUTURE MAY BE GREATER OR LESSER
THAN THOSE SHOWN.
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===============================================================================
GENERAL INFORMATION
===============================================================================
The Trust was established as a Massachusetts business trust under a Declaration
of Trust dated December 18, 1996. The Declaration of Trust permits the Trust to
offer separate series of shares of beneficial interest representing interests
in separate portfolios of securities. The Trust is an open-end investment
company. As of the date of this prospectus, the Trust currently has only one
portfolio known as Impact Management Growth Portfolio.
The Portfolio seeks appreciation of capital through investment in equity
securities of companies determined by the investment advisor to have prospects
for above-average growth in earnings, or where significant positive fundamental
changes are taking place. There is no assurance the Portfolio can meet its
investment objective.
For information on how to purchase Shares, please refer to "How to Purchase
Shares." The minimum initial investment for the Portfolio is $5,000.00.
Subsequent investments must be in amounts of at least $1,000.00. There is no
minimum investment or subsequent investment requirement for qualified
retirement plans (not including individual retirement accounts). Shares are
sold at net asset value without any sales load. Shares are redeemed at net
asset value. For a more complete description, see "How to Redeem Shares."
Additional information pertaining to the Trust may be obtained by writing the
Trust's Administrator, Impact Management Services, Inc., Arrott Building, Third
Floor, 401 Wood Street, Pittsburgh, PA 15219, or by calling 1-888-467-2284.
===============================================================================
INVESTMENT INFORMATION
===============================================================================
INVESTMENT OBJECTIVE
The investment objective of the Portfolio is to provide capital appreciation.
The investment objective cannot be changed without approval of shareholders.
While there is no assurance that the Portfolio will achieve its investment
objective, it endeavors to do so by following the investment policies described
in this prospectus.
INVESTMENT POLICIES
The Portfolio pursues this investment objective by investing primarily in
equity securities of companies with small and medium market capitalization and,
in the view of its Advisor, prospects for above-average growth in earnings, or
where significant, positive fundamental changes are taking place. Unless
indicated otherwise, the investment policies of the Portfolio may be changed by
the Board of Trustees without the approval of shareholders. Shareholders will
be notified before any material changes in these policies become effective.
The Advisor's investment process in managing the assets of the Portfolio is
both quantitative and fundamental, and is significantly focused on quality
earnings growth. In seeking to identify
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investment opportunities for the Portfolio, the Advisor begins by defining a
universe of rapidly growing companies with market capitalizations within the
parameters described for the Portfolio and with certain quality
characteristics. Using proprietary analysis methods and research models that
incorporate important attributes of successful growth, such as positive
earnings surprises, upward earnings estimate revisions, and accelerating sales
and earnings growth, the Advisor creates a pool of growing companies for
further analysis. Then, using fundamental research, the Advisor evaluates each
company's current growth trends. Through this process, the Advisor seeks to
identify companies for inclusion in the Portfolio that possess strong growth
characteristics. Because the stock prices of these kinds of companies will
undoubtedly fluctuate both up and down over time, it is important that
investors in the Portfolio should be long-term investors. The Portfolio is not
suitable for short-term investors or those looking for current income. Of
course, there can be no assurance that use of these techniques will be
successful, even over the long term.
Under normal market conditions, the Portfolio will invest primarily in common
securities of small and medium sized growth companies (market capitalization or
annual revenues up to $5 billion). The average market capitalizations or annual
revenues of holdings in the Portfolio may, however, fluctuate over time as a
result of market valuation levels and the availability of specific investment
opportunities. In addition, the Portfolio may continue to hold securities of
companies whose market capitalizations or annual revenues grow above $5 billion
subsequent to purchase, if the company continues to satisfy the other
investment policies of the Portfolio.
Securities will be sold when the Advisor believes that significant appreciation
is no longer probable, alternative investments offer superior appreciation
prospects, or it is believed that the risk of a decline in market price is too
great. Because of its policy with respect to the sales of investments, the
Portfolio may from time to time realize short-term gains or losses. The
Portfolio will likely have somewhat greater volatility (both up and down) than
the stock market in general, as measured by the S&P 500 Index.
Normally, the Portfolio will purchase only securities traded in the United
States or Canada on registered exchanges or in the over-the-counter market. The
Portfolio may invest up to 15% of its net assets in illiquid securities. This
limitation does not include any Rule 144A security that has been determined to
be liquid pursuant to procedures established by the Board.
ACCEPTABLE INVESTMENTS
SMALL AND MEDIUM CAPITALIZATION STOCKS. The Portfolio invests primarily in
equity securities of companies selected by the Advisor on the basis of
traditional and proprietary research techniques, including assessment of
earnings growth prospects and of the risk and volatility of each company's
business. The Portfolio generally invests in companies in the smaller to
mediumcapitalization range (up to $5,000,000,000 market capitalization at the
time of purchase); however, the Portfolio may invest in larger capitalization
companies from time to time when the Advisor deems it appropriate. The positive
fundamental changes which the Advisor will seek to identify in companies
include, for example, restructuring of basic businesses or reallocations of
assets which present opportunities for significant share price appreciation. At
times, the Portfolio will invest in securities of companies which are deemed by
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the Advisor to be candidates for acquisition by other entities as indicated by
changes in ownership, changes in standard price-to-value ratios, and an
examination of other standard analytical indices. The Portfolio may invest in
preferred stocks, corporate bonds, debentures, notes, warrants, and put and
call options on stocks. (See "Risk Factors" below.)
PUT AND CALL OPTIONS. The Portfolio may purchase put and call options on
stocks. A put option gives the Portfolio, in return for a premium, the right
to sell the underlying security to the writer (seller) at a specified price
during the term of the option. A call option gives the Portfolio the right
(upon exercise of the option during the option period) to require the writer of
the call option to sell the underlying security to the Portfolio upon payment
of the exercise price.
Although the Advisor will consider liquidity before entering into option
transactions, there is no assurance that a liquid secondary market will exist
for any particular option or at any particular time. The Portfolio reserves the
right to attempt to enhance the performance of, or to hedge, the portfolio by
buying or selling financial futures and by buying put and call options on stock
index futures and financial futures.
SECURITIES OF OTHER INVESTMENT COMPANIES. The Portfolio may invest up to 10% of
its assets in securities of other investment companies. It should be noted that
investment companies incur certain expenses, such as management fees and
accounting fees, similar to the expenses of the Portfolio, and, therefore, any
investment by the Portfolio in shares of other investment companies would be
subject to such duplicate expenses.
PORTFOLIO TURNOVER
Although the Portfolio does not intend to invest for the purpose of seeking
short-term profits, securities held by it will be sold whenever the Advisor
believes it is appropriate to do so in light of the Portfolio's investment
objectives, without regard to the length of time a particular security may have
been held.
The Portfolio does not attempt to set or meet any specific portfolio turnover
rate, since turnover is incidental to transactions undertaken in an attempt to
achieve the Portfolio's investment objective. A higher turnover rate (100% or
more) increases transaction costs (e.g., brokerage commissions) and increases
realized gains and losses. It is expected that under normal market conditions,
the annual turnover rate for the Portfolio will not exceed 100%.
TEMPORARY DEFENSIVE POSITIONS
For temporary defensive purposes, when the Advisor determines that market
conditions may warrant, the Portfolio may invest up to 100% of its assets in
cash, cash items, and money market instruments (consisting of securities issued
or guaranteed by the United States government, its agencies or
instrumentalities; certificates of deposit; time deposits; and bankers'
acceptances issued by banks or savings and loans associations having net assets
of at least $500 million as stated on their most recently published financial
statements; commercial paper rated in one of the two highest categories by at
least one Nationally Recognized Statistical Rating Organization ("NRSRO");
repurchase agreements involving such securities; and, to the extent permitted
by
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applicable law, shares of other investment companies investing solely in money
market securities). To the extent that the Portfolio is invested in temporary
defensive investments, it will not be pursuing its primary investment
objective.
RISK FACTORS
The Portfolio is being managed with a view to long-term capital appreciation.
It is not a suitable investment for short-term investors or for those seeking
current income. The Portfolio's net asset value will fluctuate to reflect the
investment performance of the securities held by the Portfolio. The value a
shareholder receives upon redemption may be greater or lesser than the value of
such shares when purchased. The use of investment techniques such as investing
in repurchase agreements and trading in put and call options involves greater
risk than does an investment in a fund that does not engage in these
activities.
SMALL AND MEDIUM CAPITALIZATION STOCKS. Investments in common stocks in general
are subject to market risks that may cause their prices to fluctuate over time.
Therefore, an investment in the Portfolio is most suitable for long-term
investors who can bear the risk of these fluctuations. The Portfolio invests
extensively in securities of issuers with small or medium market
capitalizations. This increased risk may be due to the greater business risks
of small size, limited markets and financial resources, narrow product lines
and frequent lack of management depth or a combination of those factors. The
securities of small and medium capitalization companies are often traded in the
over-the-counter market, and may be traded in volumes which are significantly
smaller than those typical of securities traded on a national securities
exchange. Thus, the securities of small and medium capitalization companies are
likely to be less liquid, and may be subject to more abrupt or erratic market
movements, than securities of larger, more established companies.
OVER-THE-COUNTER MARKET. The Portfolio may invest in over-the-counter stocks.
In contrast to the securities exchanges, the over-the-counter market is not a
centralized facility which limits trading activity to securities of companies
which initially satisfy certain defined standards. Generally, the volume of
trading in an unlisted or over-the-counter common stock is less than the volume
of trading in a listed stock. This means that the depth of market liquidity of
some stocks in which the Portfolio may invest may not be as great as that of
other securities, which means that selling large numbers of those shares may be
more difficult in a short period of time and purchases or sales of other than a
small amount of those shares may adversely affect the price thereof. If the
Portfolio was to dispose of such a stock, it might have to offer the shares at
a discount from recent prices, or sell the shares in small lots over an
extended period of time.
LACK OF EXPERIENCE OF THE ADVISOR. While the Portfolio's Advisor does have a
great deal of experience managing money for its clients, it has limited
experience as an investment advisor to a registered investment company, having
served in such capacity for the Integrity Portfolios, Inc. in 1991 and 1992.
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INVESTMENT LIMITATIONS
The investment objectives of the Portfolio and the investment limitations set
forth herein and certain investment limitations contained in the Trust's
Combined Statement of Additional Information are fundamental policies of the
Portfolio. The Portfolio's fundamental policies can not be changed without the
consent of the holders of a majority of the Trust's outstanding shares.
The Portfolio may not:
o borrow money directly or through reverse repurchase agreements
(arrangements in which the Portfolio sells a portfolio security for a
percentage of its cash value with an agreement to buy it back on a set
date) except, under certain circumstances, the Portfolio may borrow up to
one-third of the value of its net assets; or
o sell securities short except, under strict limitations, the Portfolio may
maintain open short positions so long as not more than 10% of the value of
its net assets is held as collateral for those positions.
The above investment limitations cannot be changed without shareholder
approval. The following limitations, however, may be changed by the Trustees
without shareholder approval. Shareholders will be notified before any material
change in these limitations becomes effective.
The Portfolio may not:
o purchase securities of other investment companies, except in open market
transactions limited to not more than 10% of its total net assets, or
except as part of a merger, consolidation, or other acquisition;
o invest more than 15% of its total assets in securities of issuers that
have records of less than three years of continuous operations or in
equity securities of any issuer which are not readily marketable;
o commit more than 5% of its total net assets to premiums on open put and
call option positions;
o invest more than 5% of its total net assets in securities of one issuer
(except cash and cash items, repurchase agreements, and U.S. government
obligations) or acquire more than 10% of any class of voting securities of
any one issuer; or
o invest more than 5% of its total net assets in warrants.
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===============================================================================
NET ASSET VALUE
===============================================================================
The Portfolio's net asset value per Share fluctuates. The net asset value for
Shares of the Portfolio is determined by adding the market value of all
securities and other assets of the Portfolio, subtracting the liabilities of
Portfolio, and dividing the remainder by the total number of Shares
outstanding. The net asset value of Shares of the Portfolio is determined as
of the close of trading (normally 4:00 p.m., Eastern time) on the New York
Stock Exchange, Monday through Friday, except on: (i) days on which there are
not sufficient changes in the value of the Portfolio's portfolio securities
that its net asset value might be materially affected; (ii) days during which
no Shares are tendered for redemption and no orders to purchase Shares are
received; or (iii) the following holidays: New Year's Day, President's Day,
Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and
Christmas Day.
================================================================================
HOW TO PURCHASE SHARES
================================================================================
INVESTING IN THE PORTFOLIO
Shares of the Portfolio are sold on days on which the New York Stock Exchange
is open. To purchase shares of the Portfolio, call Impact Management Services,
Inc. (the Portfolio's Administrator) at 1-888-467-2284. Information needed to
establish an account will be taken over the telephone.
The Trust reserves the right to reject any purchase request. Shares may also be
purchased through a financial institution (such as a bank or broker/dealer)
which has a sales agreement with Management Securities, Inc., or through
Management Securities Inc., directly.
In connection with any sale, Management Securities, Inc. may from time to time
offer certain items of nominal value to any shareholder or investor.
No sales load is imposed for Shares purchased through bank trust departments,
investment advisors registered under the Investment Advisors Act of 1940, as
amended, or retirement plans where the third party administrator has entered
into certain arrangements with Management Securities, Inc. However, investors
who purchase Shares through a trust department, investment advisor, or
retirement plan may be charged an additional service fee by the institution.
The purchase price of shares of the Portfolio is the net asset value per share
determined at the end of the day on which a purchase order is effective.
Purchases will be made in full and fractional shares of the Portfolio
calculated to three decimal places. The Portfolio will not issue certificates
representing shares of the Portfolio.
PURCHASING BY MAIL. To purchase shares by mail, send a check (in the amount of
at least $5,000 for an initial investment or $1,000 for a subsequent
investment) made payable to IMPACT MANAGEMENT GROWTH PORTFOLIO to: IMPACT
MANAGEMENT GROWTH PORTFOLIO c/o Fifth Third Bank, P.O. Box 632164, Cincinnati,
OH 45263-2164. Orders by mail are considered received after payment by check
is converted by Impact
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Management Services, Inc. into federal funds. This is normally the next
business day after the check is received.
MINIMUM INVESTMENT REQUIRED
The minimum initial investment in shares is $5,000, plus any non-affiliated
broker's fee, if applicable. An institutional investor's minimum investment
will be calculated by combining all of the accounts it maintains with the
Portfolio. Accounts established through a non-affiliated bank or broker may,
therefore, be subject to a smaller minimum investment. Accounts established
through a qualified retirement plan (not including Individual Retirement
Accounts "IRAs") are not subject to the minimum investment requirement.
Additional investments can be made in amounts of at least $1000.00. No minimum
applies to subsequent purchases effected through reinvestment of dividends and
capital gains or for subsequent purchases through qualified retirement plans
(not including IRAs).
SHAREHOLDER INQUIRIES AND SERVICES
The Trust reserves the right to change the shareholder services described below
or to change the terms or conditions relating to such services upon 60 days'
notice to shareholders.
CERTIFICATES AND CONFIRMATIONS.
As transfer agent for the Trust, Impact Management Services, Inc. maintains a
share account for each shareholder. Share certificates will not be issued.
Quarterly account statements will be sent to each shareholder. In addition,
detailed confirmations of each purchase or redemption are sent to each
shareholder. Semi-annual confirmations are sent to each shareholder to report
dividends paid during that period.
DIVIDENDS AND DISTRIBUTIONS
Substantially all of the net investment income (exclusive of capital gains) of
the Portfolio is distributed by the Trust at least annually.
Shareholders automatically receive all dividends and capital gain distributions
in additional shares at the net asset value determined on the next Business Day
after the record date, unless the shareholder has elected to take such payment
in cash. Shareholders may receive payments for cash distributions in the form
of a check.
Dividends and distributions of the Portfolio are paid on a per share basis. The
value of each share will be reduced by the amount of the payment. If shares are
purchased shortly before the record date for a dividend or distribution of
capital gains, a shareholder will pay the full price for the shares and receive
some portion of the price back as a taxable dividend or distribution.
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===============================================================================
HOW TO REDEEM SHARES
===============================================================================
The Portfolio redeems shares at their net asset value as determined at the
close of the day on which the Portfolio receives the redemption request.
Redemption requests must be received in proper form and can be made by written
request.
WRITTEN REQUESTS. Shares may be redeemed by sending a written request to the
Transfer Agent. Call the Portfolio for specific instructions before redeeming
by letter. The shareholder will be asked to provide in the request his name,
the Portfolio name, his account number, and the share or dollar amount
requested.
SIGNATURES. Shareholders requesting a redemption of $50,000 or more, a
redemption of any amount to be sent to an address other than that on record
with the Portfolio, or a redemption payable other than to the shareholder of
record must have signatures on written redemption requests guaranteed by:
o a trust company or commercial bank whose deposits are insured by the
Bank Insurance Fund ("BIF"), which is administered by the Federal
Deposit Insurance Corporation ("FDIC");
o a member of the New York, American, Boston, Midwest, or Pacific Stock
Exchange;
o a savings bank or savings and loan association whose deposits are
insured by the Savings Association Insurance Fund ("SAIF"), which is
administered by the FDIC; or
o any other "eligible guarantor institution," as defined in the
Securities Exchange Act of 1934.
The Portfolio does not accept signatures guaranteed by a notary public.
The Portfolio and its transfer agent have adopted standards for accepting
signature guarantees from the above institutions. The Portfolio may elect in
the future to limit eligible signature guarantors to institutions that are
members of a signature guarantee program. The Portfolio and its transfer agent
reserve the right to amend these standards at any time without notice.
RECEIVING PAYMENT. Normally, a check for the redemption proceeds is mailed
within one business day, but in no event more than seven business days after
the receipt of a proper written redemption request.
ACCOUNTS WITH LOW BALANCES
Due to the high cost of maintaining accounts with low balances, the Trust may
redeem shares in any account and pay the proceeds to the shareholder if the
balance falls below the required
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minimum of $5,000 due to shareholder redemptions. This procedure would not
apply, however, if the balance falls below $5,000 solely because of a decline
in the Portfolio's net asset value.
===============================================================================
TRUST INFORMATION
===============================================================================
MANAGEMENT OF THE TRUST
BOARD OF TRUSTEES.
The Trust is managed by a Board of Trustees. The Trustees are responsible for
managing the Trust's business affairs and for exercising all the Trust's powers
except those reserved for the shareholders.
INVESTMENT ADVISOR
Jordan American Holdings, Inc., d/b/a Equity Assets Management (the "Advisor")
is the Portfolio's investment advisor. The Advisor continually conducts
investment research and supervision for the Trust and is responsible for the
purchase or sale of portfolio instruments, for which it receives an annual fee
from the Trust.
ADVISORY FEES. The Advisor receives an annual investment advisory fee equal to
2.25% of the Portfolio's average daily net assets. Under the investment
advisory contract, which provides for the voluntary waiver of the advisory fee
by the Advisor, the Advisor may voluntarily waive some or all of its fee. The
advisory fee is calculated and paid to the Advisor on a monthly basis.
ADVISOR'S BACKGROUND. The Advisor is a professional investment manager and a
registered investment advisor, which was founded in 1972 under the name Equity
Assets Management. Jordan American Holdings, Inc. d/b/a Equity Assets
Management, is a publicly held company which trades on NASDAQ under the symbol
"JAHI". The Advisor's principle place of business is located at 1875 Ski Time
Square Drive, Suite One, Steamboat Springs, Colorado 80487. In addition to
advising the Portfolio, the Advisor provides investment advisory services to
individuals, corporations, foundations, limited partnerships, a commodity pool
and individual retirement, corporate, and group pension and profit-sharing
plans. The Advisor currently has discretionary management authority with
respect to approximately $95 million in assets.
The Advisor serves as the investment advisor to the Portfolio under an
Investment Advisory Agreement with the Trust (the "Advisory Agreement"). The
Advisor makes investment decisions with respect to the assets of the Portfolio
and continuously reviews, supervises and administers the investment program of
the Portfolio, subject to the supervision of, and policies established by, the
Board of Trustees of the Trust.
W. NEAL JORDAN, Senior Portfolio Manager of Jordan American Holdings, Inc., is
the company's founder and has been Senior Portfolio Manager since the company's
inception in 1972.
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<PAGE> 16
CHARLES R. CLARK, Senior Assistant Portfolio Manager of Jordan American
Holdings, Inc. since 1993, has been with the company since 1991. From October
1991 through the end of 1993, he was a Technical Research Analyst for Jordan
American Holdings, Inc.
DISTRIBUTION OF SHARES
Management Securities, Inc. is the principal distributor for Shares of the
Trust. Management Securities, Inc. is located at 1875 Ski Time Square Drive,
Suite One, Steamboat Springs, CO 80487. It is a Florida corporation organized
on March 7, 1986, and is a subsidiary of Jordan American Holdings, Inc., the
Trust's Advisor. The Distributor's fees will be paid by the Advisor from its
Advisory fee.
ADMINISTRATION OF THE TRUST
ADMINISTRATIVE SERVICES. Impact Management Services, Inc., Pittsburgh,
Pennsylvania, provides administrative personnel and services (including
financial reporting services) necessary to operate the Trust. Impact Management
Services, Inc. provides these services, as well as transfer agent and dividend
disbursing agent services for a fee in an amount of to $165.00 per account, per
year.
CUSTODIAN. The custodian for the securities and cash of the Trust is Fifth
Third Bank, 38 Fountain Square Plaza, Cincinnati, OH 45263. The Custodian's fee
is paid by Impact Management Services, Inc. from its administrative services
fee.
TRANSFER AGENT AND DIVIDEND DISBURSING AGENT. Impact Management Services, Inc.,
is transfer agent and dividend disbursing agent for the Shares of the Trust.
Impact Management Services, Inc. provides these services for an annual fee
which is included in the fee paid to Impact Management Services, Inc. for its
administrative services.
INDEPENDENT AUDITORS. The independent auditors for the Trust are Arthur F.
Bell, Jr. & Associates, L.L.C., Heaver Plaza, Suite 200, 1301 York Road,
Lutherville, MD 21093.
EXPENSES OF THE TRUST
The Portfolio pays its own expenses relating to its operation, including fees
for its service providers (the advisory fee and the administration fee), ,
brokerage fees, interest charges, and taxes. Fees for custodial, transfer
agent, dividend disbursing agent, administration and accounting services, audit
and legal expenses, expense of preparing prospectuses, proxy solicitation
material and reports to shareholders, cost of pricing and insurance expenses
and registering the shares under federal and state securities laws will be paid
by Impact Management Services, Inc. from its administrative services fee.
BROKERAGE TRANSACTIONS
When selecting brokers to handle the purchase and sale of portfolio
instruments, the Advisor looks for prompt execution of the order at a favorable
price. The Advisor may give consideration to those firms which have sold or are
selling Shares of the Trust. The Advisor makes decisions on portfolio
transactions and selects brokers. It is anticipated that the majority
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<PAGE> 17
of brokerage transactions will be effected through Management Securities, Inc.,
the Trust's Distributor and a wholly-owned subsidiary of the Advisor.
===============================================================================
THE TRUST
===============================================================================
GENERAL INFORMATION
The Trust is a Massachusetts business trust. The Shares offered by this
prospectus are shares of the Impact Management Growth Portfolio. The Trust
intends to offer other portfolios from time to time. All consideration received
by the Trust for shares of any portfolio and all assets of each portfolio
belong only to that portfolio and would be subject to only the liabilities
related thereto.
VOTING RIGHTS
Each share of the Portfolio gives the shareholder one vote in Trustee elections
and all other matters submitted to shareholders for a vote. All shares in the
Trust have equal voting rights. If and when the Trust creates other portfolios,
shares in any such portfolios will also be able to vote in elections of
Trustees and in certain Trust matters. Only holders of shares of a portfolio
will be able to vote on matters relating solely to that portfolio.
As a Massachusetts business trust, the Trust is not required to hold annual
shareholder meetings. Shareholder approval will be sought only for certain
changes in the Trust's operation and for the election of Trustees under certain
circumstances.
Trustees may be removed by the Board of Trustees or by shareholders at a
special meeting. A special meeting of shareholders may be called by the Board
of Trustees at any time and will be called by the Trustees upon the written
request of shareholders owning at least 10% of the Trust's outstanding shares
of all series entitled to vote.
MASSACHUSETTS PARTNERSHIP LAW
Under certain circumstances, shareholders may be held personally liable as
partners under Massachusetts law for obligations of the Trust. To protect its
shareholders, the Trust has filed legal documents with Massachusetts that
expressly disclaim the liability of its shareholders for acts or obligations of
the Trust. These documents require notice of this disclaimer to be given in
each agreement, obligation, or instrument the Trust or its Trustees enter into
or sign.
In the unlikely event a shareholder is held personally liable for the Trust's
obligations, the Trust is required by its Declaration of Trust to use its
property to protect or compensate the shareholder. On request, the Trust will
defend any claim made and pay any judgment against a shareholder for any act or
obligation of the Trust. Therefore, financial loss resulting from liability as
a shareholder will occur only if the Trust itself cannot meet its obligations
to indemnify shareholders and pay judgments against them.
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<PAGE> 18
===============================================================================
TAX INFORMATION
===============================================================================
FEDERAL INCOME TAX
The following summary of federal income tax consequences is based on current
tax laws and regulations, which may be changed by legislative, judicial or
administrative action. No attempt has been made to present a detailed
explanation of the federal, state or local income tax treatment of the Trust or
its shareholders. Accordingly, you are urged to consult your tax Advisors
regarding specific questions as to federal, state and local income taxes. See
also the Statement of Additional Information.
TAX STATUS OF THE TRUST. Each Portfolio (to the extent there is more than one)
will be treated as a separate entity for federal income tax purposes and is not
combined with the Trust's other portfolios. The Trust intends to qualify or to
continue to qualify for the special tax treatment afforded regulated investment
companies as defined under Subchapter M of the Internal Revenue Code of 1986,
as amended. So long as the Trust qualifies for this special tax treatment, it
will be relieved of federal income tax on that part of its net investment
income and net capital gain (the excess of net long-term capital gain over net
short-term capital loss) which it distributes to shareholders.
TAX STATUS OF DISTRIBUTIONS. The Trust will distribute all of its net
investment income (including, for this purpose, net short-term capital gain) to
shareholders. Dividends from net investment income will be taxable to
shareholders as ordinary income whether received in cash or in additional
shares. Distributions from net investment income will qualify for the
dividends-received deduction for corporate shareholders only to the extent such
distributions are derived from dividends paid by domestic corporations. It can
be expected that only certain dividends of the Portfolio will qualify for that
deduction. Any net capital gains will be distributed annually and will be taxed
to shareholders as long-term capital gains, subject to certain limitations
regardless of how long the shareholder has held shares and regardless of
whether the distributions are received in cash or in additional shares. The
Trust will make annual reports to shareholders of the federal income tax status
of all distributions, including the amount of dividends eligible for the
dividends-received deduction.
Certain securities purchased by the Portfolio may be sold with original issue
discount and thus would not make periodic cash interest payments. If the
Portfolio acquired such securities, it would be required to include as part of
its current net investment income the accrued discount on such obligations for
purposes of the distribution requirement even though the Portfolio has not
received any interest payments on such obligations during that period. Because
the Portfolio distributes all of its net investment income to its shareholders,
the Portfolio may have to sell portfolio securities to distribute such accrued
income, which may occur at a time when the Advisor would not have chosen to
sell such securities and which may result in taxable gain or loss.
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<PAGE> 19
Income received on direct U.S. obligations is exempt from income tax at the
state level when received directly by the Portfolio and may be exempt,
depending on the state, when received by a shareholder as income dividends from
the Portfolio provided certain state-specific conditions are satisfied. Not all
states permit such income dividends to be as exempt and some require that a
certain minimum percentage of an investment company's income be derived from
state tax-exempt interest. The Portfolio will inform shareholders annually of
the percentage of income and distributions derived from direct U.S.
obligations. You should consult your tax Advisor to determine whether any
portion of the income dividends received from the Portfolio is considered tax
exempt in your particular state.
TAX TREATMENT OF TRANSACTIONS. Each sale or redemption of the Portfolio's
shares is a taxable event to the shareholder. Shareholders are urged to consult
their own tax Advisors regarding the status of their accounts under state and
local tax laws.
===============================================================================
PERFORMANCE ADVERTISING
===============================================================================
From time to time, the Portfolio advertises its total return and yield. These
figures will be based on historical earnings and are not intended to indicate
future performance. No representations can be made regarding actual future
returns or yields.
Total return represents the change, over a specific period of time, in the
value of an investment in the Portfolio after reinvesting all income and
capital gains distributions. It is calculated by dividing that change by the
initial investment and is expressed as a percentage.
The yield of the Portfolio is calculated by dividing the net investment income
per share (as defined by the Securities and Exchange Commission) earned by each
class of Shares over a thirty-day period by the maximum offering price per
share of each class on the last day of the period. This number is then
annualized using semi-annual compounding. The yield does not necessarily
reflect income actually earned by the Portfolio and, therefore, may not
correlate to the dividends or other distributions paid to shareholders.
From time to time, advertisements for the Portfolio may refer to ratings,
rankings, and other information in certain financial publications and/or
compare the performance of the Portfolio to certain indices.
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<PAGE> 20
===============================================================================
IMPACT MANAGEMENT
INVESTMENT TRUST
IMPACT GROWTH PORTFOLIO
IMPACT MANAGEMENT
INVESTMENT TRUST
1875 Ski Time Square Drive, Suite One
Steamboat Springs, CO 80487
INVESTMENT ADVISOR
Jordan American Holdings, Inc.
d/b/a Equity Assets Management
1875 Ski Time Square Drive, Suite One
Steamboat Springs, CO 80487
DISTRIBUTOR
Management Securities, Inc.
1875 Ski Time Square Drive, Suite One
Steamboat Springs, CO 80487
TRANSFER AGENT AND
DIVIDEND DISBURSING AGENT
Impact Management Services Inc.
Arrott Building, Third Floor
401 Wood Street
Pittsburgh, PA 15222
ADMINISTRATOR
Impact Management Services Inc.
Arrott Building, Third Floor
401 Wood Street
Pittsburgh, PA 15222
CUSTODIAN
The Fifth Third Bank
38 Fountain Square Plaza
Cincinnati, OH 45263
INDEPENDENT AUDITORS
Arthur F. Bell, Jr. & Associates, L.L.C.
Heaver Plaza, Suite 200
1301 York Road
Lutherville, MD 21093
LEGAL COUNSEL
Plummer, Beaman & DeWalt, L.L.P.
38th Floor, Gulf Tower
Pittsburgh, PA 15219
===============================================================================
PROSPECTUS
[DATE]
===============================================================================
IMPACT MANAGEMENT
INVESTMENT TRUST
IMPACT GROWTH PORTFOLIO
1-888-467-2284
(LOGO)
IMGT (___/97)
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<PAGE> 21
===============================================================================
IMPACT o MANAGEMENT o INVESTMENT o TRUST
IMPACT MANAGEMENT GROWTH PORTFOLIO
STATEMENT OF ADDITIONAL INFORMATION
===============================================================================
Impact Management Growth Portfolio (the "Portfolio") is a diversified portfolio
of Impact Management Investment Trust (the "Trust"). The Trust is an open-end
management investment company that offers a convenient and economical means of
investing in professionally managed portfolios of securities. This Statement of
Additional Information should be read with the prospectus for Impact Management
Growth Portfolio dated _________________, 1997. This Statement is not a
prospectus itself. To receive a copy of the prospectus, write or call the
Trust.
Statement dated ___________________, 1997
TABLE OF CONTENTS
GENERAL INFORMATION ABOUT THE TRUST......................1
INVESTMENT OBJECTIVE AND POLICIES .......................1
Types of Investments.....................................1
Temporary Investments .................................2
When-Issued and Delayed Delivery Transactions..........2
Lending of Portfolio Securities........................2
Repurchase Agreements..................................3
Reverse Repurchase Agreements..........................3
Portfolio Turnover ....................................3
Investment Limitations.................................3
IMPACT MANAGEMENT INVESTMENT TRUST MANAGEMENT............5
Trust Ownership..........................................6
Trustees' Compensation.................................6
Trustee Liability......................................6
INVESTMENT ADVISORY SERVICES.............................6
Advisor to the Trust.....................................6
Advisory Fees..........................................7
Other Related Services.................................7
ADMINISTRATIVE SERVICES..................................7
TRANSFER AGENT AND DIVIDEND DISBURSING AGENT.............7
BROKERAGE TRANSACTIONS ..................................7
PURCHASING SHARES........................................8
Conversion to Federal Funds..............................8
DETERMINING NET ASSET VALUE..............................8
Determining Market Value of Securities...................8
REDEEMING SHARES.........................................8
Redemption in Kind.......................................8
TAX STATUS...............................................9
The Trust's Tax Status...................................9
Shareholders' Tax Status...............................9
TOTAL RETURN ............................................9
YIELD....................................................9
PERFORMANCE COMPARISONS..................................9
<PAGE> 22
GENERAL INFORMATION ABOUT THE TRUST
- -------------------------------------------------------------------------------
Impact Management Growth Portfolio is a portfolio of Impact Management
Investment Trust (the "Trust"). The Trust was established as a Massachusetts
business trust under a Declaration of Trust dated December 18,1996. The Trust
is an open-end investment company. As of the date of this Statement of
Additional Information, the Trust consists of only one portfolio, the Impact
Management Growth Portfolio, and offers only one class of shares.
INVESTMENT OBJECTIVE AND POLICIES
- -------------------------------------------------------------------------------
The investment objective of the Portfolio is to provide capital appreciation.
The investment objective cannot be changed without approval of shareholders.
While there is no assurance that the Portfolio will achieve its investment
objective, it endeavors to do so by investing primarily in equity securities of
companies with prospects for above-average growth in earnings or of companies
where significant fundamental changes are taking place. Unless indicated
otherwise, the investment policies of the Portfolio may be changed by the Board
of Trustees without the approval of shareholders. Shareholders will be notified
before any material changes in these policies become effective.
TYPES OF INVESTMENTS
- -------------------------------------------------------------------------------
The Portfolio invests primarily in equity securities of companies selected by
the Advisor on the basis of traditional and proprietary research techniques,
including assessment of earnings prospects and of the risk and volatility of
each company's business. The Portfolio generally invests in companies in the
smaller to medium capitalization range (up to $5,000,000,000 market
capitalization at the time of purchase); however, the Portfolio may invest in
larger capitalization companies from time to time when the Advisor deems it
appropriate. The fundamental changes which the Advisor will seek to identify in
companies include, for example, restructuring of basic businesses or
reallocations of assets which present opportunities for significant share price
appreciation. At times, the Portfolio will invest in securities of companies
which are deemed by the Advisor to be candidates for acquisition by other
entities as indicated by changes in ownership, changes in standard
price-to-value ratios, and an examination of other standard analytical indices.
The Portfolio may invest in preferred stocks, corporate bonds, debentures,
notes, warrants, and put and call options on stocks as further described below.
RESTRICTED SECURITIES
The Portfolio expects that any restricted securities would be acquired
either from institutional investors who originally acquired the
securities in private placements or directly from the issuers of the
securities in private placements. Restricted securities and other
securities that are not readily marketable may sell at a discount from
the price they would bring if freely marketable.
PUT AND CALL OPTIONS
The Portfolio may purchase put and call options on stocks. A put
option gives the Portfolio, in return for a premium, the right to sell
the underlying security to the writer (seller) at a specified price
during the term of the option. A call option gives the Portfolio the
right (upon exercise of the option during the option period) to
require the writer of the call option to sell the underlying security
to the Portfolio upon payment of the exercise price.
Although the Advisor will consider liquidity before entering into
option transactions, there is no assurance that a liquid secondary
market will exist for any particular option or at any particular time.
The Portfolio reserves the right to attempt to enhance the performance
of or hedge the portfolio by buying and selling financial futures and
by buying put and call options on stock index futures and financial
futures.
TEMPORARY INVESTMENTS
The Portfolio may also invest in the following temporary investments
from time to time for defensive purposes.
MONEY MARKET INSTRUMENTS
The Portfolio may invest in the following money market instruments:
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<PAGE> 23
o instruments of domestic and foreign banks and savings and loans if
they have capital, surplus, and undivided profits of over
$100,000,000, or if the principal amount of the instrument is
insured in full by the Bank Insurance Fund, which is administered
by the Federal Deposit Insurance Corporation ("FDIC"), or the
Savings Association Insurance Fund, which is administered by the
FDIC; and
o prime commercial paper (rated A-1 by Standard and Poor's
Ratings Group, Prime-1 by Moody's Investors Service, Inc., or F-1
by Fitch Investors Service, Inc.).
US Government Obligations
The types of U.S. government obligations in which the Portfolio may
invest generally include direct obligations of the U.S. Treasury (such
as U.S. Treasury bills, notes, and bonds) and obligations issued or
guaranteed by U.S. government agencies or instrumentalities. These
securities are backed by:
o the full faith and credit of the U.S. Treasury;
o the issuer's right to borrow from the U.S. Treasury;
o the discretionary authority of the U.S. government to purchase
certain obligations of agencies or instrumentalities; or
o the credit of the agency or instrumentality issuing the
obligations.
Examples of agencies and instrumentalities which may not always
receive financial support from the U.S. government are:
o Federal Farm Credit Banks;
o Federal Home Loan Banks;
o Federal National Mortgage Association;
o Student Loan Marketing Association; and
o Federal Home Loan Mortgage Corporation.
WHEN-ISSUED AND DELAYED DELIVERY TRANSACTIONS
These transactions are made to secure what is considered to be an
advantageous price or yield for the Portfolio. No fees or other
expenses, other than normal transaction costs, are incurred. However,
liquid assets of the Portfolio sufficient to make payment for the
securities to be purchased are segregated on the Portfolio's records at
the trade date. These assets are marked to market daily and are
maintained until the transaction has been settled. The Portfolio does
not intend to engage in when-issued and delayed delivery transactions
to an extent that would cause the segregation of more than 20% of the
total value of its assets.
LENDING OF PORTFOLIO SECURITIES
The collateral received when the Portfolio lends portfolio securities
must be valued daily and, should the market value of the loaned
securities increase, the borrower must furnish additional collateral to
the Portfolio. During the time portfolio securities are on loan, the
borrower pays the Portfolio any dividends or interest paid on such
securities. Loans are subject to termination at the option of the
Portfolio or the borrower. The Portfolio may pay reasonable
administrative and custodial fees in connection with a loan and may pay
a negotiated portion of the interest earned on the cash or equivalent
collateral to the borrower or placing broker. The Portfolio does not
have the right to vote securities on loan, but would terminate the loan
and regain the right to vote if that were considered important with
respect to the investment of the Portfolio in the securities on loan.
It is anticipated that the Portfolio will not engage in the lending of
its portfolio securities.
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<PAGE> 24
REPURCHASE AGREEMENTS
The Portfolio or its custodian will take possession of the securities
subject to repurchase agreements, and these securities will be marked
to market daily. In the event that a seller has defaulted by filing
for bankruptcy or has become insolvent, disposition of such securities
by the Portfolio might be delayed pending court action. The Portfolio
believes that under the regular procedures normally in effect for
custody of the Portfolio's portfolio securities subject to repurchase
agreements, a court of competent jurisdiction would rule in favor of
the Portfolio and allow retention or disposition of such securities.
The Portfolio will only enter into repurchase agreements with banks
and other recognized financial institutions, such as broker/dealers,
which are found by the Portfolio's investment advisor to be
creditworthy pursuant to guidelines established by the Board of
Trustees (the "Trustees").
REVERSE REPURCHASE AGREEMENTS
The Portfolio may also enter into reverse repurchase agreements. These
transactions are similar to borrowing cash. In a reverse repurchase
agreement, the Portfolio transfers possession of a portfolio
instrument to another person, such as a financial institution, broker,
or dealer, in return for a percentage of the instrument's market value
in cash, and agrees that on a stipulated date in the future, the
Portfolio will repurchase the portfolio instrument by remitting the
original consideration plus interest at an agreed upon rate. The use
of reverse repurchase agreements may enable the Portfolio to avoid
selling portfolio securities at a time when a sale may be deemed to be
disadvantageous, but the ability to enter into reverse repurchase
agreements does not ensure that the Portfolio will be able to avoid
selling portfolio securities at a disadvantageous time.
When effecting reverse repurchase agreements, liquid assets of the
Portfolio, in a dollar amount sufficient to make payment for the
obligations to be purchased, are segregated at the trade date. These
securities are marked to market daily and are maintained until the
transaction is settled.
PORTFOLIO TURNOVER
Although the Portfolio does not intend to invest for the purpose of
seeking short-term profits, securities in its portfolio will be sold
whenever the investment advisor believes it is appropriate to do so in
light of the Portfolio's investment objective, without regard to the
length of time a particular security may have been held. The Portfolio
will not attempt to set or meet a portfolio turnover rate since any
turnover would be incidental to transactions undertaken in an attempt
to achieve the Portfolio's investment objective.
INVESTMENT LIMITATIONS
CONCENTRATION OF INVESTMENTS
The Portfolio will not purchase securities if, as a result of such
purchase, 25% or more of the value of its total assets would be
invested in any one industry. However, the Portfolio may at times
invest 25% or more of the value of its total net assets in cash or
cash items (not including certificates of deposit), securities issued
or guaranteed by the U.S. government, its agencies or
instrumentalities, or repurchase agreements secured by such
instruments.
INVESTING IN COMMODITIES
The Portfolio will not purchase or sell commodities. The Portfolio
reserves the right to purchase financial futures and put options on
stock index futures and on financial futures.
INVESTING IN REAL ESTATE
The Portfolio will not purchase or sell real estate, although it may
invest in the securities of companies whose business involves the
purchase or sale of real estate, or in securities which are secured by
real estate or interests in real estate.
BUYING ON MARGIN
The Portfolio will not purchase any securities on margin but may
obtain such short-term credits as may be necessary for the clearance
of transactions and may make margin payments in connection with buying
financial futures, put options on stock index futures, and put options
on financial futures.
SELLING SHORT
The Portfolio will not sell securities short unless at all times when
a short position is open, it owns an equal amount of such securities
or securities convertible into or exchangeable, without payment of any
further consideration, for securities of the same issuer as, and equal
in amount to, the securities sold short; and unless not more than 10%
of the value of the Portfolios net assets is held as collateral for
such sales at any one time.
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<PAGE> 25
ISSUING SENIOR SECURITIES AND BORROWING MONEY
The Portfolio will not issue senior securities, except as permitted by
its investment objective and policies, and except that the Portfolio
may borrow money and engage in reverse repurchase agreements only in
amounts up to one-third of the value of its net assets, including the
amounts borrowed. The Portfolio will not borrow money or engage in
reverse repurchase agreements for investment leverage, but rather as a
temporary, extraordinary, or emergency measure, or to facilitate
management of the portfolio by enabling the Portfolio to meet
redemption requests where the liquidation of portfolio securities is
deemed to be inconvenient or disadvantageous. The Portfolio will not
purchase any securities while any such borrowings (including reverse
repurchase agreements) are outstanding.
LENDING CASH OR SECURITIES
The Portfolio will not lend any of its assets except portfolio
securities. This shall not prevent the purchase or holding of
corporate or government bonds, debentures, notes, certificates of
indebtedness, or other debt securities of an issuer, repurchase
agreements, or other transactions which are permitted by the
Portfolio's investment objective and policies.
UNDERWRITING
The Portfolio will not underwrite any issue of securities, except as
it may be deemed to be an underwriter under the Securities Act of 1933
in connection with the sale of securities in accordance with its
investment objective, policies, and limitations.
INVESTING IN MINERALS
The Portfolio will not purchase interests in oil, gas, or other
mineral exploration or development programs, although it may purchase
the securities of issuers which invest in or sponsor such programs.
DIVERSIFICATION OF INVESTMENTS
The Portfolio will not purchase the securities of any issuer (other
than securities of the U.S. government, its agencies, or
instrumentalities, or instruments secured by securities of such
issuers, such as repurchase agreements) if, as a result, more than 5%
of the value of its total assets would be invested in the securities
of such issuer or acquire more than 10% of any class of voting
securities of any issuer. For these purposes, the Portfolio takes all
common stock and all preferred stock of an issuer each as a single
class, regardless of priorities, series, designations, or other
differences.
The above investment limitations cannot be changed without shareholder
approval. The following limitations, however, may be changed by the Trustees
without shareholder approval. Shareholders will be notified before any material
changes in these limitations become effective.
INVESTING IN ILLIQUID SECURITIES
The Portfolio will not invest more than 15% of the value of its net
assets in illiquid securities, including repurchase agreements
providing for settlement in more than seven days after notice and
certain restricted securities not determined by the Trustees to be
liquid.
INVESTING IN NEW ISSUERS
The Portfolio will not invest more than 5% of the value of its total
net assets in securities of issuers which have records of less than
three years of continuous operations, including the operation of any
predecessor.
INVESTING IN ISSUERS WHOSE SECURITIES ARE OWNED BY OFFICERS AND
TRUSTEES OF THE TRUST
The Portfolio will not purchase or retain the securities of any issuer
if the officers and Trustees of the Trust, or the Advisor, own
individually more than 1/2 of 1% of the issuer's securities, or
together own more than 5% of the issuer's securities.
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<PAGE> 26
PLEDGING ASSETS
The Portfolio will not mortgage, pledge, or hypothecate any assets,
except to secure permitted borrowings. In those cases, it may pledge
assets having a market value not exceeding the lesser of the dollar
amounts borrowed or 10% of the value of total net assets at the time
of the borrowing.
ACQUIRING SECURITIES
The Portfolio will not purchase securities of a company for the
purpose of exercising control or management. However, the Portfolio
may invest in up to 10% of the voting securities of any one issuer and
may exercise its voting powers consistent with the best interests of
the Portfolio. In addition, the Portfolio, other companies advised by
the Advisor, and other affiliated companies may together buy and hold
substantial amounts of voting stock of a company and may vote together
in regard to such company's affairs. In some such cases, the Portfolio
and its affiliates might collectively be considered to be in control
of such company. In some cases, Trustees and other persons associated
with the Trust and its affiliates might possibly become directors of
companies in which the Trust holds stock.
INVESTING IN WARRANTS
The Portfolio will not invest more than 5% of the value of its total
net assets in warrants. No more than 2% of this 5% may be warrants
which are not listed on the New York or American Stock Exchanges.
Warrants acquired in units or attached to securities may be deemed to
be without value for purposes of this policy.
For purposes of its policies and limitations, the Portfolio considers
certificates of deposit and demand and time deposits issued by a U.S. branch of
a domestic bank or savings and loan having capital, surplus, and undivided
profits in excess of $100,000,000 at the time of investment to be "cash items."
Except with respect to borrowing money, if a percentage limitation is adhered
to at the time of investment, a later increase or decrease in percentage
resulting from any change in value or net assets will not result in a violation
of such restriction. The Portfolio has no present intent to borrow money, sell
securities short, or invest in reverse repurchase agreements in excess of 5% of
the value of its total assets.
In addition to the limitations set forth above, the Portfolio will not purchase
or sell real estate limited partnership interests or oil, gas, or other mineral
leases, except that the Portfolio may purchase or sell securities of companies
which invest in or hold the foregoing.
IMPACT MANAGEMENT INVESTMENT TRUST MANAGEMENT
- -------------------------------------------------------------------------------
Officers and Trustees are listed with their addresses, birthdates, present
positions with Impact Management Investment Trust, and principal occupations.
- -------------------------------------------------------------------------------
Name: Charles R. Clark* Birthdate: November 16, 1959
1875 Ski Time Square Drive, Suite One
Steamboat Springs, Colorado 80487
Chairman of the Board of Trustees
Occupation: Chief Operating Officer and Senior Assistant Portfolio Manager of
Jordan American Holdings, Inc. d/b/a Equity Assets Management
- -------------------------------------------------------------------------------
Name: Ronald A. Stiller* Birthdate: March 28, 1956
Arrott Building, Third Floor
401 Wood Street
Pittsburgh, PA 15219
Trustee and President
Founder and President of Impact Financial Networks, Inc.
- --------------------------------------------------------------------------------
5
<PAGE> 27
- -------------------------------------------------------------------------------
Name: Oleen Eagle Birthdate: September 28, 1930
3215 Chestnut Street
Murrysville, PA 15668
Trustee
Occupation: President of Cornerstone TeleVision, President and Director of
Group C, Vice President and Director of Christian Advance
International, Director of International Christian University
of Zaire
- -------------------------------------------------------------------------------
Name: Gerald L. Bowyer Birthdate: August 31, 1962
820 Pine Hollow Road
McKees Rocks, PA 15136
Trustee
Occupation: President, Allegheny Institute, Host of "Focus on the Issues," a
syndicated public affairs television program originating on WPCB,
Cornerstone TeleVision
- -------------------------------------------------------------------------------
Name: Allen L. Zeolla Birthdate: June 19, 1958
Arrott Building, Third Floor
401 Wood Street
Pittsburgh, PA 15219
Treasurer and Secretary
Occupation: Financial Consultant
- -------------------------------------------------------------------------------
*This Trustee is deemed to be an "interested person" as defined in the
Investment Company Act of 1940, as amended.
TRUST OWNERSHIP
Officers and Trustees own less than 1% of the Trust's outstanding Shares. No
person owns of record or beneficially 5% or more of the Trust's outstanding
shares.
TRUSTEES' AND OFFICERS' COMPENSATION
Trustees and Officers will not receive any compensation from the Trust.
TRUSTEE LIABILITY
The Trust's Declaration of Trust provides that the Trustees will not be liable
for errors of judgment or mistakes of fact or law. However, they are not
protected against any liability to which they would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of their office.
INVESTMENT ADVISORY SERVICES
- -------------------------------------------------------------------------------
ADVISOR TO THE TRUST
The Trust's investment advisor is Jordan American Holdings, Inc. d/b/a Equity
Assets Management (the "Advisor"). Jordan American Holdings, Inc. is a publicly
held company which trades on NASDAQ under the symbol "JAHI". The Advisor shall
not be liable to the Trust, the Portfolio, or any shareholder of the Portfolio
for any losses that may be sustained in the purchase, holding, or sale of any
security, or for anything done or omitted by it, except acts or omissions
involving willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties imposed upon it by its contract with the Trust
ADVISORY FEES
For its advisory services, Jordan American Holdings, Inc. receives an annual
investment advisory fee as described in the prospectus.
6
<PAGE> 28
STATE EXPENSE LIMITATIONS
The Advisor has undertaken to comply with the expense limitations established
by certain states for investment companies whose shares are registered for sale
in those states. If the Portfolio's normal operating expenses (including the
investment advisory fee, but not including brokerage commissions, interest,
taxes, and extraordinary expenses) exceed 2-1/2% per year of the first $30
million of average net assets, 2% per year of the next $70 million of average
net assets, and 1-1/2% per year of the remaining average net assets, the
Advisor will reimburse the Portfolio for its expenses over the limitation.
If the Portfolio's monthly projected operating expenses exceed this limitation,
the investment advisory fee paid will be reduced by the amount of the excess,
subject to an annual adjustment. If the expense limitation is exceeded, the
amount to be reimbursed by the Advisor will be limited, in any single fiscal
year, by the amount of the investment advisory fee.
This arrangement is not part of the advisory contract and may be amended or
rescinded in the future.
ADMINISTRATIVE SERVICES
- -------------------------------------------------------------------------------
Impact Management Services, Inc., provides administrative personnel and
services to the Trust for a fee described in the prospectus.
TRANSFER AGENT AND DIVIDEND DISBURSING AGENT
- -------------------------------------------------------------------------------
Impact Management Services, Inc. serves as transfer agent and dividend
disbursing agent for the Trust. The fee paid to the transfer agent is $165.00
per account, per year. Impact Management Services, Inc. also maintains the
Trust's accounting records.
BROKERAGE TRANSACTIONS
- -------------------------------------------------------------------------------
The Advisor may select brokers and dealers who offer brokerage and research
services. These services may be furnished directly to the Trust or to the
Advisor and may include:
o advice as to the advisability of investing in securities;
o security analysis and reports;
o economic studies;
o industry studies;
o receipt of quotations for portfolio evaluations;
o and similar services.
The Advisor and its affiliates exercise reasonable business judgment in
selecting brokers who offer brokerage and research services to execute
securities transactions. They determine in good faith that commissions charged
by such persons are reasonable in relation to the value of the brokerage and
research services provided.
Research services provided by brokers may be used by the Advisor or by
affiliates of Jordan American Holdings, Inc. in advising other accounts. To the
extent that receipt of these services may supplant services for which the
Advisor or its affiliates might otherwise have paid, it would tend to reduce
their expenses.
It is anticipated that the majority of brokerage transactions will be effected
by Management Securities, Inc., the Trust's Distributor and a wholly-owned
subsidiary of the Advisor.
PURCHASING SHARES
- -------------------------------------------------------------------------------
Except under certain circumstances described in the prospectus, Shares are sold
at their net asset value on days the New York Stock Exchange is open for
business. The procedure for purchasing Shares is explained in the Prospectus
under "How To Purchase Shares."
7
<PAGE> 29
CONVERSION TO FEDERAL FUNDS
It is the Trust's policy to be as fully invested as possible so that maximum
return may be earned. To this end, all payments from shareholders must be in
federal funds or be converted into federal funds before being invested. Impact
Management Services, Inc. acts as the shareholder's agent in depositing checks
and converting them to federal funds.
DETERMINING NET ASSET VALUE
- -------------------------------------------------------------------------------
Net asset value generally changes each day. The days on which net asset value
is calculated are described in the prospectus.
DETERMINING MARKET VALUE OF SECURITIES
Market values of the Portfolio's securities, other than options, are determined
as follows:
o for securities listed on a national securities exchange, according to
the last sale price on a national securities exchange, if available;
o in the absence of recorded sales for a listed security, according to
the mean between the last closing bid and asked prices;
o for unlisted equity securities, the latest bid prices and for unlisted
bonds and other fixed income securities as determined by an
independent pricing service; or
o for short-term obligations, according to the mean between bid and
asked prices as furnished by an independent pricing service or at fair
value as determined in good faith by the Board of Trustees.
Options are valued at the market values established by the exchanges on which
they are traded at the close of option trading unless the Trustees determine in
good faith that another method of valuing option positions is necessary.
REDEEMING SHARES
- -------------------------------------------------------------------------------
The Portfolio redeems Shares at the next computed net asset value after the
Portfolio receives the redemption request. Redemption procedures are explained
in the prospectus under "How To Redeem Shares."
REDEMPTION IN KIND
The Trust has elected to be governed by Rule 18f-1 of the Investment Company
Act of 1940, under which the Trust is obligated to redeem Shares for any one
shareholder in cash only up to the lesser of $250,000 or 1% of the respective
class's net asset value during any 90-day period.
Any redemption beyond this amount will also be in cash unless the Trustees
determine that payments should be in kind. In such a case, the Portfolio will
pay all or a portion of the remainder of the redemption in portfolio
instruments, valued in the same way as the Portfolio determines net asset
value. The portfolio instruments will be selected in a manner that the
Trustees deem fair and equitable.
Redemption in kind is not as liquid as a cash redemption. If redemption is made
in kind, shareholders receiving their securities and selling them before their
maturity could receive less than the redemption value of their securities and
could incur certain transaction costs.
TAX STATUS
- -------------------------------------------------------------------------------
THE TRUST'S TAX STATUS
The Trust will pay no federal income tax because it expects to meet the
requirements of Subchapter M of the Internal Revenue Code, as amended,
applicable to regulated investment companies and to receive the special tax
treatment afforded to such companies. To qualify for this treatment, the
Portfolio must, among other requirements:
o derive at least 90% of its gross income from dividends, interest, and
gains from the sale of securities;
o derive less than 30% of its gross income from the sale of securities
held less than three months;
8
<PAGE> 30
o invest in securities within certain statutory limits; and
o distribute to its shareholders at least 90% of its net income earned
during the year.
SHAREHOLDERS' TAX STATUS
Shareholders are subject to federal income tax on dividends and capital gains
received as cash or additional Shares. No portion of any income dividend paid
by the Portfolio is eligible for the dividends received deduction available to
corporations. These dividends, and any short-term capital gains, are taxable as
ordinary income.
CAPITAL GAINS
Shareholders will pay federal tax at capital gains rates on long-term
capital gains distributed to them regardless of how long they have
held the Portfolio Shares.
TOTAL RETURN
- -------------------------------------------------------------------------------
The average annual total return for Shares of the Portfolio is the average
compounded rate of return for a given period that would equate a $1,000 initial
investment to the ending redeemable value of that investment. The ending
redeemable value is computed by multiplying the number of Shares owned at the
end of the period by the net asset value per share at the end of the period.
The number of Shares owned at the end of the period is based on the number of
Shares purchased at the beginning of the period with $1,000, less any
applicable sales load adjusted over the period by any additional Shares,
assuming the quarterly reinvestment of all dividends and distributions.
YIELD
- -------------------------------------------------------------------------------
The yield for Shares of the Portfolio is determined by dividing the net
investment income per share (as defined by the Securities and Exchange
Commission) earned by any class of Shares over a thirty-day period by the
maximum offering price per share of the respective class on the last day of the
period. This value is annualized using semi-annual compounding. This means that
the amount of income generated during the thirty-day period is assumed to be
generated each month over a 12-month period and is reinvested every six months.
The yield does not necessarily reflect income actually earned by the Portfolio
because of certain adjustments required by the Securities and Exchange
Commission and, therefore, may not correlate to the dividends or other
distributions paid to the shareholders.
To the extent that financial institutions and broker/dealers charge fees in
connection with services provided in conjunction with an investment in any
class of Shares, the performance will be reduced for those shareholders paying
those fees.
PERFORMANCE COMPARISONS
- -------------------------------------------------------------------------------
The performance of Shares depends upon such variables as:
o portfolio quality;
o average portfolio maturity;
o type of instruments in which the portfolio is invested;
o changes in interest rates and market value of portfolio securities;
o changes in the Portfolio's expenses;
o and various other factors.
The Portfolio's performance fluctuates on a daily basis largely because net
earnings and offering price per Share fluctuate daily. Both net earnings and
offering price per Share are factors in the computation of yield and total
return.
Investors may use financial publications and/or indices to obtain a more
complete view of the Portfolio's performance. When comparing performance,
investors should consider all relevant factors such as the composition of any
index used, prevailing market conditions, portfolio compositions of other
funds, and methods used to value portfolio securities and compute offering
price.
9
<PAGE> 31
PART C
Other Information
Item 24. Financial Statements and Exhibits
(a) Financial Statements - Impact Management Growth
-----------------------------------------------
Portfolio
---------
(i) Financial Statements included in Part A of the Registration
Statement: None
(ii) Financial Statements included in Part B of the Registration
Statement: None
(b) Exhibits
--------
1. Declaration of Trust Dated December 18, 1997
2. By-Laws
3. Inapplicable
4. Article III of the Declaration of Trust
5. Advisory Contract dated December 20, 1996
6. Underwriting Agreement dated December 20, 1996
7. Inapplicable
8. Form of Custody Agreement
9. (a) Transfer Agency and Service Agreement dated January
7, 1997
(b) Administrative Services Agreement dated January 7, 1997
10. Opinion of Counsel [TO BE FILED WITH PRE-EFFECTIVE
AMENDMENT NO. 1]
11. Consent of Independent Auditors
12. Inapplicable
13. Letter of Intent From Initial Investor
14. Inapplicable
15. Inapplicable
16. Inapplicable
17. Financial Data Schedule
18. Inapplicable
19. Power of Attorney
Item 25. Persons Controlled by or Under Common Control with Registrant
Inapplicable
Item 26. Number of Holders of Securities
As of February 18, 1997, there was 1 holder of record of the shares of
the Trust and the Growth Portfolio.
Item 27. Indemnification
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate
<PAGE> 32
jurisdiction the question as to whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
Item 28. Business and Other Connections of Investment Adviser
Information pertaining to business and other connections of the
Registrant's investment adviser is hereby incorporated by reference to the
section of the Prospectus captioned "Management of the Fund" and to the section
of the Statement of Additional Information captioned "Investment Adviser".
Ronald A. Stiller and Charles R. Clark, Trustees and officers of the Trust are
members of the Board of Directors of the Advisor and Mr. Clark is an officer of
the Advisor. The Advisor has engaged, and is currently engaged, in providing
financial advisement services for individual investors as well as common trust
funds. Mr. Stiller is an officer and director of Impact Financial Network,
which provides financial planning services to individuals.
No director or officer of the Advisor has engaged in any other business during
the past two years.
Item 29. Principal Underwriters
(a) Inapplicable
(b) The following is certain information with respect to the officers
and directors of Management Securities, Inc. the principal distributor for the
Trust and the Impact Management Growth Portfolio:
<TABLE>
<CAPTION>
Positions and
Positions and Offices Offices
Name with Underwriter with Registrant
- ---- --------------------- ---------------
<S> <C> <C>
W. Neal Jordan President/Chief Executive None
1875 Ski Time Square Drive, Ste. One Officer/Director
Steamboat Springs, CO 80487
Charles R. Clark Senior Vice President/Chief Chairman and
1875 Ski Time Square Drive, Ste. One Operating Officer/Director Trustee
Steamboat Springs, CO 80487
Frederick A. Whittlesey Vice President/Chief Financial None
1875 Ski Time Square Drive, Ste. One Officer/Treasurer/Secretary/
Steamboat Springs, CO 80487 Director
Robert J. Flaherty Director None
1875 Ski Time Square Drive, Ste. One
Steamboat Springs, CO 80487
Ronald A. Stiller Director President and
1875 Ski Time Square Drive, Ste. One Trustee
Steamboat Springs, CO 80487
</TABLE>
(c) Inapplicable.
Item 30. Location of Accounts and Records
All such accounts, books and other documents are maintained by Section
31(a) of the Investment Company Act of 1940 and Rules 31a-1 through 31a-3
promulgated thereunder are maintained at one or more of the following
locations:
<PAGE> 33
Registrant 1875 Ski Time Square Drive, Suite One,
Steamboat Springs, CO 80487,
Jordan American Holdings, Inc. 1875 Ski Time Square Drive, Suite One
(Advisor) Steamboat Springs, CO 80487,
Impact Management Services, Inc. Arrott Building, Third Floor
(Administrator and Transfer Agent) 401 Wood Street
Pittsburgh, PA 15222
The Fifth Third Bank 38 Fountain Square Plaza
(Custodian) Cincinnati, Ohio 45263.
Item 31. Management Services
Inapplicable
Item 32. Undertakings
(a) Registrant undertakes to file an amendment to the Registration
Statement with certified financial statements showing the initial
capital received before accepting subscriptions from any persons in
excess of 25 if Registrant proposes to raise its initial capital
pursuant to Section 14(a)(3) of the 1940 Act [15 U.S.C. 80a-14(a)(3)].
(b) Registrant undertakes to file a post-effective amendment, using
financial statements which need not be certified, within four to six
months from the effective date of Registrant's 1933 Act Registration
Statement.
(c) Registrant undertakes to furnish each person to whom a prospectus
is delivered with a copy of the Registrant's latest annual report to
shareholders upon request and without charge.
(d) Registrant undertakes to have a majority of the non-interested
directors determine at least annually that the arrangement concerning
liability insurance for each Series of Impact Management Investment
Trust satisfies the standards contained in Section 17(d)-1(d)(7)(i) and
(ii) of the Investment Company Act of 1940, as amended.
<PAGE> 34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Pittsburgh and the Commonwealth of Pennsylvania
on the 18th day of February, 1997.
Impact Management Investment Trust
By:/s/ RONALD A. STILLER
---------------------
President
Pursuant to the requirement of the Securities Act of 1933, this
amendment to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ CHARLES R. CLARK
-------------------- Chairman of the February 18, 1997
Charles R. Clark Board of Trustees
/s/ RONALD A. STILLER
-------------------- President (Principal February 18, 1997
Ronald A. Stiller Executive Officer)
and Trustee
/s/ OLEEN EAGLE
-------------------- Trustee February 18, 1997
Oleen Eagle
/s/ GERALD L. BOWER
-------------------- Trustee February 18, 1997
Gerald L. Bower
/s/ ALLEN L. ZEOLLA
-------------------- Treasurer February 18, 1997
Allen L. Zeolla (Principal Financial
and Accounting Officer)
<PAGE> 1
EXHIBIT 1
IMPACT MANAGEMENT INVESTMENT TRUST
DECLARATION OF TRUST
DATED AS OF
DECEMBER 18, 1996
i
<PAGE> 2
IMPACT MANAGEMENT INVESTMENT TRUST
DECLARATION OF TRUST
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I. NAMES AND DEFINITIONS 1
Section 1. Names 1
Section 2. Definitions 1
ARTICLE II. PURPOSE OF TRUST 2
ARTICLE III. BENEFICIAL INTEREST 2
Section 1. Shares of Beneficial Interest 2
Section 2. Ownership of Shares 3
Section 3. Investment in the Trust 3
Section 4. No Pre-emptive Rights; Action by Shareholder 3
Section 5. Establishment and Designation of Series or Class 4
ARTICLE IV. THE TRUSTEES 6
Section 1. Management of the Trust 6
Section 2. Election of Trustees by Shareholder 6
Section 3. Term of Office of Trustees 6
Section 4. Termination of Service and Appointment of Trustees 6
Section 5. Number of Trustees 7
Section 6. Effect of Death, Resignation, etc. of Trustee 7
Section 7. Ownership of Assets 7
ARTICLE V. POWERS OF THE TRUSTEES 8
Section 1. Powers 8
Section 2. Principal Transactions 11
Section 3. Trustees and Officers as Shareholders 11
Section 4. Parties to Contact 11
ARTICLE VI. TRUSTEES' EXPENSES AND COMPENSATION 11
Section 1. Trustee Reimbursement 11
Section 2. Trustee Compensation 12
</TABLE>
ii
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE VII. INVESTMENT ADVISER, ADMINISTRATIVE SERVICES,
PRINCIPAL UNDERWRITER AND TRANSFER AGENT 13
Section 1. Investment Adviser 13
Section 2. Administrative Services 13
Section 3. Principal Underwriter 13
Section 4. Transfer Agent 14
ARTICLE VII. SHAREHOLDERS' VOTING POWERS AND MEETINGS 14
Section 1. Voting Powers 14
Section 2. Meetings 15
Section 3. Quorum and Required Vote 15
Section 4. Action by Written Consent 15
Section 5. Additional Provisions 15
ARTICLE IX. CUSTODIAN 16
ARTICLE X. DISTRIBUTIONS AND REDEMPTIONS 16
Section 1. Distributions 16
Section 2. Redemptions and Repurchases 16
Section 3. Net Asset Value of Shares 17
Section 4. Suspension of the Right of Redemption 18
Section 5. Trust's Right to Redeem Shares 18
ARTICLE XI. LIMITATION OF LIABILITY AND INDEMNIFICATION 18
Section 1. Limitation of Personal Liability and Indemnification of Shareholders 18
Section 2. Limitation of Personal Liability and Indemnification of Trustees,
Officers, Employees or Agents of the Trust 19
Section 3. Express Exculpatory Clauses and Instruments 19
ARTICLE XII. MISCELLANEOUS 20
Section 1. Trust is not a Partnership 20
Section 2. Trustee Action Binding, Expert Advice, No Bond or Surety 20
Section 3. Establishment of Record Dates 20
Section 4. Termination of Trust 21
Section 5. Offices of the Trust, Filing of Copies, Headings, Counterparts 22
Section 6. Applicable Law 22
Section 7. Amendments - General 22
Section 8. Amendments - Series and Classes 23
Section 9. Use of Name 24
</TABLE>
iii
<PAGE> 4
IMPACT MANAGEMENT INVESTMENT TRUST
DECLARATION OF TRUST
Dated December 18, 1996
DECLARATION OF TRUST made, by the undersigned and by the holders of shares of
beneficial interest to be issued hereunder as hereinafter provided.
WHEREAS, the Trustees desire to establish a trust fund for the investment and
reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustees declare that all money and property contributed to
the trust fund hereunder shall be held and managed under this Declaration of
Trust IN TRUST as herein set forth below.
ARTICLE I
NAMES AND DEFINITIONS
Section 1. Name. This Trust shall be known as the Impact Management Investment
Trust, and the Trustees may conduct the business of the Trust under
that name or any other name as they may determine from time to time.
Section 2. Definitions. Wherever used herein, unless otherwise required by the
context or specifically provided:
(a) "Affiliated Person," "Assignment," "Commission," "Interested
Person," "Majority Shareholder Vote" (the 67% or 50%
requirement of Section 2(a)(42) of the 1940 Act, whichever
may be applicable) and "Principal Underwriter" shall have the
meanings given them in the 1940 Act, as amended from time to
time;
(b) "Trust" refers to the Massachusetts Business Trust
established by this Declaration of Trust, as amended from
time to time, inclusive of each and every Series and Class
established hereunder;
(c) "Class" refers to a class of Shares established and
designated under or in accordance with the provisions of
Article III;
(d) "Series" refers to a series of Shares established and
designated under or in accordance with the provisions of
Article III;
(e) "Series Company" refers to the form of a registered open-end
investment company described in Section 18(f)(2) of the 1940
Act or in any successor statutory provision;
<PAGE> 5
(f) "Shareholder" means a record owner of Shares of any Series or
Class;
(g) "Trustees" refer to the individual Trustees in their capacity
as Trustees hereunder of the Trust and their successor or
successors for the time being in office as such Trustees;
(h) "Shares" means the equal proportionate units of interest into
which the beneficial interest in the Trust shall be divided
from time to time, or if more than one Series or Class of
Shares is authorized by the Trustees, the equal proportionate
units into which each Series or Class of Shares shall be
divided from time to time and includes fractions of Shares as
well as whole Shares;
(i) The "1940 Act" refers to Investment Company Act of 1940, and
the Rules and Regulations thereunder, (including any
exemptions granted thereunder) as amended from time to time;
and
(j) "Bylaws" shall mean the Bylaws of the Trust as amended from
time to time.
ARTICLE II
PURPOSE OF TRUST
The purpose of this Trust is to operate as an investment company, and provide
investors a continuous source of managed investments by investing
primarily in equity securities, debt instruments, commodities,
commodity contracts and options thereon, and other property.
ARTICLE III
BENEFICIAL INTEREST
Section 1. Shares of Beneficial Interest. The beneficial interest in the Trust
shall at all times be divided into transferable Shares, without par
value. Subject to the provisions of Section 5 of this Article III,
each Share shall have voting rights as provided in Article VIII
hereof, and holders of the Shares of any Series shall be entitled to
receive dividends, when and as declared with respect thereto in the
manner provided in Article X, Section 1 hereof. The Shares of any
Series may be issued in one or more Classes, as the Trustees may
authorize pursuant to Article XII Section 8 hereof. Unless the
Trustees have authorized the issuance of Shares of a Series in two or
more Classes, each Share of a Series shall represent an equal
proportionate interest in the assets and liabilities and the income
and the expenses of the Series with each other Share of the same
Series, none having priority or preference over another. If the
Trustees have authorized the issuance of Shares of a Series in two or
more Classes, then the Classes may have such variations as to
dividend, redemption, and voting rights,
2
<PAGE> 6
net asset values, expenses borne by the Classes, and other matters as
the Trustees have authorized provided that each Share of a Class shall
represent an equal proportionate interest in the assets and liabilities
and the income and the expenses of the Class with each other Share of
the same Class, none having priority or preference over another. The
number of Shares authorized shall be unlimited. The Trustees may from
time to time divide or combine the Shares of any Series or Class into a
greater or lesser number without thereby changing the proportionate
beneficial interests in the Series or Class.
Section 2. Ownership of Shares. The ownership of Shares shall be recorded in
the books of the Trust or a transfer agent which books shall be
maintained separately for the Shares of each Series or Class. The
Trustees may make such rules as they consider appropriate for the
transfer of Shares and similar matters. The record books of the Trust
or any transfer agent, as the case may be, shall be conclusive as to
who are the Shareholders of each Series or Class and as to the number
of Shares of each Series or Class held from time to time by each.
Section 3. Investment in the Trust. The Trustees shall accept investments in
the Trust from such persons and on such terms as they may from time to
time authorize. After the date of the initial contribution of capital
(which shall occur prior to the initial public offering of Shares),
the number of Shares to represent the initial contribution shall be
considered as outstanding and the amount received by Trustees on
account of the contribution shall be treated as an asset of the Trust
to be allocated among any Series or Classes in the manner described in
Section 5(a) of this Article. Subsequent to such initial contribution
of capital, Shares (including Shares which may have been redeemed or
repurchased by the Trust) may be issued or sold at a price which will
net the relevant Series or Class, as the case may be, before paying
any taxes in connection with such issue or sale, not less than the net
asset value (as defined in Article X, Section 3) thereof; provided,
however, that Trustees may in their discretion impose a sales charge
upon investments in or redemptions from the Trust, and upon
reinvestments of dividends and capital gains in Shares.
Section 4. No Pre-emptive Right; Action by Shareholder. Shareholders shall
have no pre-emptive or other right to subscribe to any additional
Shares or other securities issued by the Trust. No action may be
brought by a Shareholder on behalf of the Trust unless a prior demand
regarding such matter has been made on the Trustees of the Trust.
Section 5. Establishment and Designation of Series or Class. Without limiting
the authority of the Trustees set forth in Article XII, Section 8,
inter alia, to establish and designate any additional Series or Class
or to modify the rights and preferences of any existing Series or
Class, the initial Series shall be, and is established and designated
as Impact Management Growth Portfolio.
3
<PAGE> 7
Shares of any Series or Class established in this Section 5 shall have
the following relative rights and preferences:
(a) Assets belonging to Series or Class. All consideration
received by the Trust for the issue or sale of Shares of a
particular Series or Class, together with all assets in which
such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof from whatever source
derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably
belong to that Series or Class for all purposes, subject only
to the rights of creditors, and shall be so recorded upon the
books of account of the Trust. Such consideration, assets,
income, earnings, profits and proceeds thereof, form whatever
source derived, including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may
be, are herein referred to as "assets belonging to" that
Series or Class. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as belonging to
any particular Series or Class (collectively "General
Assets"), the Trustees shall allocate such General Assets to,
between or among any one or more of the Series or Classes
established and designated form time to time in such manner
and on such basis as they, in their sole discretion, deem
fair and equitable, and any General Assets so allocated to a
particular Series or Class shall belong to that Series or
Class. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Series or
Classes for all purposes.
(b) Liabilities Belonging to Series or Class. The assets
belonging to each particular Series or Class shall be charged
with the liabilities of the Trust in respect to that Series
or Class and all expenses, costs, charges and reserves
attributable to that Series or Class, and any general
liabilities of the Trust which are not readily identifiable
as belonging to any particular Series or Class shall be
allocated and charged by the Trustees to and among any one or
more of the Series or Classes established and designated from
time to time in such manner and on such basis as the Trustees
in their sole discretion deem fair and equitable. The
liabilities, expenses, costs, charges and reserves so charged
to a Series or Class are herein referred to as "liabilities
belonging to" that Series or Class. Each allocation of
liabilities belonging to a Series or Class by the Trustees
shall be conclusive and binding upon the Shareholders of all
Series or Classes for all purposes.
(c) Dividends, Distributions, Redemptions, Repurchases and
Indemnification. Notwithstanding any other provisions of this
Declaration of Trust, including, without limitation, Article
X, no dividend or distribution (including, without
limitation, any distribution paid upon termination of the
Trust or of any Series or Class) with respect to, nor any
redemption or repurchase of the Shares of any
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Series or Class shall be effected by the Trust other than
from the assets belonging to such Series or Class, nor except
as specifically provided in Section 1 of Article XI hereof,
shall any Shareholder of any particular Series or Class
otherwise have any right or claim against the assets
belonging to any other Series or Class except to the extent
that such Shareholder has such a right or claim hereunder as
a Shareholder of such other Series or Class.
(d) Voting. Notwithstanding any of the other provisions of this
Declaration of Trust, including, without limitation, Section
1 of Article VIII, only Shareholders of a particular Series
or Class shall be entitled to vote on any matters affecting
such Series or Class. Except with respect to matters as to
which any particular Series or Class is affected materially
differently or as otherwise required by applicable law, all
of the Shares of each Series or Class shall, on matters as to
which such Series or Class is entitled to vote, vote with
other Series or Classes so entitled as a single class.
Notwithstanding the foregoing, with respect to matters which
would otherwise be voted on by two or more Series or Classes
as a single class, the Trustees may, in their sole
discretion, submit such matters to the Shareholders of any or
all such Series or Classes, separately.
(e) Fraction. Any fractional Share of a Series or Class shall
carry proportionately all the rights and obligations of a
whole Share of that Series or Class, including rights with
respect to voting, receipt of dividends and distributions,
redemption of shares and termination of the Trust or of any
Series or Class.
(f) Exchange Privilege. The Trustees shall have the authority to
provide that the holders of Shares of any Series or Class
shall have the right to exchange said Shares for Shares of
one or more other Series or Classes in accordance with such
requirements and procedures as may be established by the
Trustees.
(g) Combination of Series or Classes. The Trustees shall have the
authority, without the approval of the Shareholders of any
Series or Class, unless otherwise required by applicable law,
to combine the assets and liabilities belonging to a single
Series or Class with the assets and liabilities of one or
more other Series or Classes.
(h) Elimination of Series or Classes. The Trustee shall have the
authority, without the approval of Shareholders of any Series
or Class, unless otherwise required by applicable law, to
amend this Declaration of Trust to abolish that Series or
Class and to rescind the establishment and designation
thereof.
ARTICLE IV
THE TRUSTEES
Section 1. Management of the Trust. The business and affairs of the Trust
shall be
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managed by the Trustees, and they shall have all powers necessary and
desirable to carry out that responsibility. The Trustees who shall
serve as Trustees are the undersigned.
Section 2. Election of Trustees by Shareholders. Unless otherwise required by
the 1940 Act or any court or regulatory body of competent
jurisdiction, or unless the Trustees determine otherwise, a Trustee
shall be elected by the Trustees, and Shareholders shall have no right
to elect Trustees.
Section 3. Term of Office of Trustees. The Trustees shall hold office during
the lifetime of this Trust, and until its termination as hereinafter
provided; except (a) that any Trustee may resign his office at any
time by written instrument signed by him and delivered to the other
Trustees, which shall take effect upon such delivery or upon such
later date as is specified therein; (b) that any Trustee may be
removed at any time by written instrument signed by at least
two-thirds of the number of Trustees prior to such removal, specifying
the date when such removal shall become effective; (c) that any
Trustee who requests in writing to be retired or who has become
mentally or physically incapacitated may be retired by written
instrument signed by a majority of the other Trustees, specifying the
date of his retirement; and (d) a Trustee may be removed at any
special meeting of Shareholders of the Trust by a vote of two-thirds
of the outstanding Shares. Any removals shall be effective as to the
Trust and each Series and Class hereunder.
Section 4. Termination of Service and Appointment of Trustees. In case of the
death, resignation, retirement, removal or mental or physical
incapacity of any of the Trustees, or in case a vacancy shall, by
reason of an increase in number, or for any other reason, exist, the
remaining Trustees shall fill such vacancy by appointing such other
person as they in their discretion shall see fit. An appointment of a
Trustee may be made by the Trustees then in office in anticipation of
a vacancy to occur by reason of retirement, resignation or increase in
number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date
of said retirement, resignation or increase in number of Trustees. As
soon as any Trustee so appointed shall have accepted this Trust, the
trust estate shall vest in the new Trustee or Trustees, together with
the continuing Trustees, without any further act or conveyance, and he
shall be deemed a trustee hereunder. Any appointment authorized by
this Section 4 is subject to the provisions of Section 16(a)of the
1940 Act.
Section 5. Number of Trustees. The number of Trustees, not less than three (3)
nor more than twenty (20) serving hereunder at any time, shall be
determined by the Trustees themselves.
Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled or while any Trustee is physically or mentally
incapacitated, the other Trustees shall have all the powers hereunder
and the certificate signed by a majority of the other
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Trustees of such vacancy, absence or incapacity shall be conclusive,
provided, however, that no vacancy which reduces the number of
Trustees below three (3) shall remain unfilled for a period longer
than six calendar months.
Section 6. Effect of Death, Resignation, etc. of a Trustee. The death,
resignation, retirement, removal, or mental or physical incapacity of
the Trustees, or any one or more of them, shall not operate to annul
the Trust or to revoke any existing agency created pursuant to the
terms of this Declaration of Trust.
Section 7. Ownership of Assets. The assets belonging to each Series or Class
shall be held separate and apart from any assets now or hereafter held
in any capacity other than as Trustee hereunder by the Trustees or any
successor Trustee. All of the assets belonging to each Series or Class
or owned by the Trust shall at all times be considered as vested in
the Trustees. No Shareholder shall be deemed to have a severable
ownership interest in any individual asset belonging to any Series or
Class or owned by the Trust or any right of partition or possession
thereof, but each Shareholder shall have a proportionate undivided
beneficial interest in a Series or Class.
ARTICLE V
POWERS OF THE TRUSTEES
Section 1. Powers. The Trustees in all instances shall act as principals, and
are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all acts
and to make and execute any and all contracts and instruments that
they may consider necessary or appropriate in connection with the
management of the Trust or a Series or Class. The Trustees shall not
be bound or limited by present or future laws or customs in regard to
trust investments, but shall have full authority and power to make any
and all investments which they, in their uncontrolled discretion,
shall deem proper to accomplish the purpose of this Trust. Without
limiting the foregoing, the Trustees shall have the following specific
powers and authority, subject to any applicable limitation in the 1940
Act or in this Declaration of Trust or in the Bylaws of the Trust:
(a) To buy, and invest funds in their hands in securities and
other property, including, but not limited to, common stocks,
preferred stocks, bonds, debentures, warrants and rights to
purchase securities, options, certificates of beneficial
interest, money market instruments, notes or other evidences
of indebtedness issued by any corporation, trust or
association, domestic or foreign, or issued or guaranteed by
the United States of America or any agency or instrumentality
thereof, by the government of any foreign country, by any
State of the United States, or by any political subdivision
or agency or instrumentality of any State or foreign country,
or "when-issued" or "delayed-delivered" contracts for any
such securities, or any repurchase agreement or reverse
repurchase agreement, or debt instruments, commodities,
commodity contracts and options thereon, or to retain
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assets belonging to each and every Series or Class in cash,
and from time to time change the investments of the assets
belonging to each Series or Class;
(b) To adopt Bylaws of the Trust not inconsistent with the
Declaration of Trust providing for the conduct of the
business of the Trust and to amend and repeal them to the
extent that they do not reserve that right to the
Shareholders;
(c) To elect and remove such officers of the Trust and appoint
and terminate such agents of the Trust as they consider
appropriate;
(d) To appoint or otherwise engage a bank or other entity
permitted by the 1940 Act, as custodian of any assets
belonging to any Series or Class subject to any conditions
set forth in this Declaration of Trust or in the Bylaws;
(e) To appoint or otherwise engage transfer agents, dividend
disbursing agents, Shareholder servicing agents, investment
advisors, sub-investment advisers, principal underwriters,
administrative service agents, and such other agents as the
Trustees may from time to time appoint or otherwise engage;
(f) To provide for the distribution of any Shares of any Series
or Class either through a Principal Underwriter in the manner
hereinafter provided for or by the Trust itself, or both;
(g) To set record dates in the manner hereinafter provided for;
(h) To delegate such authority as they consider desirable to a
committee or committees composed of Trustees, including
without limitation, an Executive Committee, or to any
officers of the Trust and to any agent, custodian or
underwriter;
(i) To sell or exchange any or all of the assets belonging to one
or more Series or Classes, subject to the provisions of
Article XII, Section 4(b) hereof;
(j) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to
execute and deliver powers of attorney to such person or
persons, including the investment adviser of the Trust as the
Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities
or property as the Trustees shall deem proper;
(k) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities or
other property;
(l) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable
form; or either in its own name or in the name of a custodian
or a nominee or nominees, subject in either case to proper
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safeguards according to the usual business practice of
Massachusetts business trusts or investment companies;
(m) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
concern, any security of which belongs to any Series or
Class; to consent to any contract, lease, mortgage, purchase,
or sale of property by such corporation or concern, and to
pay calls or subscriptions with respect to any security which
belongs to any Series or Class;
(n) To engage in and to prosecute, compound, compromise, abandon,
or adjust, by arbitration or otherwise, any actions, suits,
proceedings, disputes, claims, demands, and things relating
to the Trust, and out of the assets belonging to any Series
or Class to pay, or to satisfy, any debts, claims or expenses
incurred in connection therewith, including those of
litigation, upon any evidence that the Trustees may deem
sufficient (such powers shall include without limitation any
actions, suits, proceedings, disputes, claims, demands and
things relating to the Trust wherein any of the Trustees may
be named individually and the subject matter of which arises
by reason of business for or on behalf of the Trust);
(o) To make distributions of income and of capital gains to
Shareholders;
(p) To borrow money;
(q) From time to time to issue and sell the Shares of any Series
or Class either for cash or for property whenever and in such
amounts as the Trustees may deem desirable, but subject to
the limitation set forth in Section 3 of Article III.
(r) To purchase insurance of any kind, including, without
limitation, insurance on behalf of any person who is or was a
Trustee, officer, employee or agent of the Trust, or is or
was serving at the request of the Trust as a trustee,
director, officer, agent or employee of another corporation,
partnership, joint venture, trust or other enterprise,
against any liability asserted against him or incurred by him
in any such capacity or arising out of his status as such;
(s) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options with respect to or otherwise deal in
any property rights relating to any or all of the assets
belonging to any Series or Class;
The Trustees shall have all of the powers set forth in this Section 1
with respect to all assets and liabilities of each Series and Class.
Section 2. Principal Transactions. The Trustees shall not cause the Trust on
behalf of any Series or Class to buy any securities (other than
Shares) from or sell any securities (other than Shares) to, or lend
any assets belonging to any Series or Class to any Trustee or
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officer or employee of the Trust or any firm of which any such Trustee
or officer is a member acting as principal unless permitted by the
1940 Act, but the Trust may employ any such other party or any such
person or firm or company in which any such person is an interested
person in any capacity not prohibited by the 1940 Act.
Section 3. Trustees and Officers as Shareholders. Any Trustee, officer,
employee or other agent of the Trust may acquire, own and dispose of
Shares of any Series or Class to the same extent as if he were not a
Trustee, officer, employee or agent; and the Trustees may issue and
sell or cause to be issued or sold Shares of any Series or Class to
and buy such Shares from any such person or any firm or company in
which he is an interested person subject only to the general
limitations herein contained as to the sale and purchase of such
Shares; and all subject to any restrictions which may be contained in
the Bylaws.
Section 4. Parties to Contract. The Trustees may enter into any contract of
the character described in Article VII or in Article IX hereof or any
other capacity not prohibited by the 1940 Act with any corporation,
firm partnership, trust or association, although one or more of the
shareholders, Trustees, offices, employees or agents of the Trust or
their affiliates may be an officer, director, trustee, partner,
shareholder or interested person of such other party to the contract,
and no such contract shall be invalidated or rendered voidable by
reason of the existence of any such relationship, or shall any person
holding such relationship be liable merely by reason of such
relationship for any loss or expense to the Trust or any Series or
Class under or by reason of said contract or accountable for any
profit realized directly or indirectly therefrom, in the absence of
actual fraud. The same person (including a firm, corporation,
partnership, trust or association) may be the other party to contracts
entered into pursuant to Article VII or Article IX or any other
capacity not prohibited by the 1940 Act, and any individual may be
financially interested or otherwise an interested person of persons
who are parties to any or all of the contracts mentioned in this
Section 4.
ARTICLE VI
TRUSTEES' EXPENSES AND COMPENSATION
Section 1. Trustee Reimbursement. The Trustees shall be reimbursed from the
assets belonging to each particular Series or Class for all of such
Trustees' expenses as such expenses are allocated to and among any one
or more of the Series or Classes pursuant to Article III, Section
5(b), including, without limitation, expenses of organizing the Trust
or any Series or Class and continuing its or their existence; fees and
expenses of Trustees and officers of the Trust; fees for investment
advisory services, administrative services and principal underwriting
services provided for in Article VII, Sections 1, 2 and 3; fees and
expenses of preparing and printing Registration Statements under the
Securities Act of 1993 and the 1940 Act and any amendments thereto;
expenses of registering and qualifying the Trust and any Series or
class and the Shares of any Series or Class under federal and state
laws and regulations; expenses of preparing, printing and distributing
prospectuses and any
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amendments thereto sent to shareholders, underwriters, broker-dealers
and to investors who may be considering the purchase of Shares;
expenses of registering, licensing or other authorization of the Trust
or any Series or Class as a broker-dealer and of its or their officers
as agents and salesman under federal and state laws and regulations;
interest expenses, taxes, fees and commissions of every kind; expenses
of issue (including cost of share certificates), purchases,
repurchases and redemptions of Shares, including expenses attributable
to a program of periodic issue; charges and expenses of custodians,
transfer agents, dividend disbursing agents, Shareholder servicing
agents and registrars; printing and mailing costs; auditing accounting
and legal expenses; reports to Shareholders and governmental officers
and commissions; expenses of meetings of Shareholders and proxy
solicitations therefor; insurance expenses; association membership
dues and nonrecurring items as may arise, including all losses and
liabilities by them incurred in administering the Trust and any Series
or Class, including expenses incurred in connection with litigation,
proceedings and claims and the obligations of the Trust under Article
XI hereof and the Bylaws to indemnify its Trustees, officers,
employees, shareholders and agents, and any contract obligation to
indemnify Principal Underwriters under Section 3 of Article VII; and
for the payment of such expenses, disbursements, losses and
liabilities, the Trustees shall have a lien on the assets belonging to
each Series or Class prior to any rights or interests of the
Shareholders of any Series or Class. This section shall not preclude
the Trust from directly paying any of the aforementioned fees and
expenses.
Section 2. Trustee Compensation. The Trustees shall be entitled to
compensation from the Trust from the assets belonging to any Series or
Class for their respective services as Trustees, to be determined from
time to time by vote of the Trustees, and the Trustees shall also
determine the compensation of all officers, employees, consultants and
agents whom they may elect or appoint. The Trust may pay out of the
assets belonging to any Series or Class any Trustee or any
corporation, firm, partnership, trust or other entity of which a
Trustee is an interested person for services rendered in any capacity
not prohibited by the 1940 Act, and such payments shall not be deemed
compensation for services as a Trustee under the first sentence of
this Section 2 of Article VI.
ARTICLE VII
INVESTMENT ADVISER, ADMINISTRATIVE SERVICES, PRINCIPAL
UNDERWRITER AND TRANSFER AGENT
Section 1. Investment Adviser. Subject to a Majority Shareholder Vote by the
relevant Series or Class to the extent such vote is required by law,
the Trustees may in their discretion from time to time enter into an
investment advisory contract whereby the other party to such contract
shall undertake to furnish the Trustees investment advisory services
for such Series or Class upon such terms and conditions and for such
compensation as the Trustees may in their discretion determine.
Subject to a Majority Shareholder Vote by the relevant Series or Class
to the extent such vote is
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required by law, the investment adviser may enter into a
sub-investment advisory contract to receive investment advice and/or
statistical and factual information from the sub-investment adviser
for such Series or Class upon such terms and conditions and for such
compensation as the Trustees, in their discretion, may agree.
Notwithstanding any provisions of this Declaration of Trust, the
Trustees may authorize the investment adviser or sub-investment
adviser or any person furnishing administrative personnel and services
as set forth in Article VII, Section 2 (subject to such general or
specific instructions as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio securities belonging
to a Series or Class on behalf of the Trustees or may authorize any
officer, employee or Trustee to effect such purchases, sales, or
exchanges pursuant to recommendations of the investment adviser (and
all without further action by the Trustees). Any such purchases, sales
and exchanges shall be deemed to have been authorized by the Trustees.
The Trustees may also authorize the investment adviser to determine
what firms shall be employed to effect transactions in securities for
the account of a Series or Class and to determine what firms shall
participate in any such transactions or shall share in commissions or
fees charged in connection with such transactions.
Section 2. Administrative Services. The Trustees may in their discretion from
time to time contract for administrative personnel and services
whereby the other party shall agree to provide the Trustees
administrative personnel and services to operate the Trust or a Series
or Class on a daily basis, on such terms and conditions as the
Trustees may in their discretion determine. Such services may be
provided by one or more entities.
Section 3. Principal Underwriter. The Trustees may in their discretion from
time to time enter into an exclusive or nonexclusive contract or
contracts providing for the sale of the Shares of a Series or Class to
net such Series or Class not less than the amount provided in Article
III, Section 3 hereof, whereby a Series or Class may either agree to
sell the Shares to the other party to the contract or appoint such
other party its sales agent for such shares. In either case, the
contract shall be on such terms and conditions (including
indemnification of Principal Underwriters allowable under applicable
law and regulation) as the Trustees may in their discretion determine
not inconsistent with the provisions of this Article VII; and such
contract may also provide for the repurchase or sale of Shares of a
Series or Class by such other party as principal or as agent of the
Trust and may provide that the other party may maintain a market for
shares of a Series or Class.
Section 4. Transfer Agent. The Trustees may in their discretion from time to
time enter into transfer agency and Shareholder services contracts
whereby the other party shall undertake to furnish transfer agency and
Shareholder services. The contracts shall be on such terms and
conditions as the Trustees may in their discretion determine not
inconsistent with the provisions of this Declaration of Trust or of
the Bylaws. Such services may be provided by one or more entities.
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ARTICLE VIII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions set forth in Article III,
Section 5(d), The Shareholders shall have power to vote, (i) for the
election of Trustees as provided in Article IV, Section 2; (ii) for
the removal of Trustees as provided in Article IV, Section 3(d); (iii)
with respect to any investment adviser or sub-investment adviser as
provided in Article VII, Section 1; (iv) with respect to the amendment
of this Declaration of Trust as provided in Article XII, Section 7;
and (v) with respect to such additional matters relating to the Trust
as may be required by law, by this Declaration of Trust, or the Bylaws
of the Trust or any regulation of the Trust or the Securities and
Exchange Commission or any State, or as the Trustees may consider
desirable. Each whole Share shall be entitled to one vote as to any
matter on which it is entitled to vote, and each fractional Share
shall be entitled to a proportionate fractional vote. There shall be
no cumulative voting in the election of Trustees. Shares may be voted
in person or by proxy. 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. At all
meetings of Shareholders, unless inspectors of election have been
appointed, all questions relating to the qualification of votes and
the validity of proxies and the acceptance or rejection of votes shall
be decided by the chairman of the meeting. Unless otherwise specified
in the proxy, the proxy shall apply to all shares of the Trust (or
each Series or Class) owned by the Shareholder. Any proxy may be in
written form, telephonic or electronic form, including facsimile, and
all such forms shall be valid when in conformance with procedures
established and implemented by the officers of the Trust. Until Shares
of a Series or Class are issued, the Trustees may exercise all rights
of Shareholders of such Series or Class with respect to matters
affecting such Series or Class, and may take any action with respect
to the Trust or such Series or Class required or permitted by law,
this Declaration of Trust or any Bylaws of the Trust to be taken by
Shareholders.
Section 2. Meetings. A Shareholders' meeting shall be held as specified in
Section 2 of Article IV at the principal office of the Trust or such
other place as the Trustees may designate. Special meetings of the
Shareholders may be called by the Trustees or the Chief Executive
Officer of the Trust and shall be called by the Trustees upon the
written request of Shareholders owning at least one-tenth of the
outstanding Shares of all Series and Classes entitled to vote.
Shareholders shall be entitled to at least fifteen days' notice of any
meeting.
Section 3. Quorum and Required Vote. Except as otherwise provided by law, the
presence in person or by proxy of the holders of (a) one-half of the
Shares of the Trust on all matters requiring a Majority Shareholder
Vote, as defined in the Investment Company
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Act of 1940, or (b) one-third of the Shares of the Trust on all other
matters permitted by law, in each case, entitled to vote without
regard to Class shall constitute a quorum at any meeting of the
Shareholders, except with respect to any matter which by law requires
the separate approval of one or more Series or Classes, in which case
the presence in person or by proxy of the holders of one-half or
one-third, as set forth above, of the Shares of each Series or Class
entitled to vote separately on the matter shall constitute a quorum.
When any one or more Series or Class is entitled to vote as a single
Series or Class, more than one-half, or one-third, as appropriate, of
the Shares of each such Series or Class entitled to vote shall
constitute a quorum at a Shareholders' meeting of that Series or
Class. If a quorum shall not be present for the purpose of any vote
that may properly come before the meeting, the Shares present in
person or by proxy and entitled to vote at such meeting, by plurality
vote, adjourn the meeting from time to time to such place and time
without further notice than by announcement to be given at the meeting
on such matter may, by plurality vote, adjourn the meeting from time
to time to such place and time without further notice than by
announcement to given at the meeting until a quorum entitled to vote
on such matter shall be present, whereupon any such matter may be
voted upon at the meeting as though held when originally convened.
Subject to any applicable requirement of law or of this Declaration of
Trust or the Bylaws, a plurality of the votes cast shall elect a
Trustee, and all other matters shall be decided by a majority of the
votes cast and entitled to vote thereon.
Section 4. Action by Written Consent. Subject to the provisions of the 1940
Act and other applicable law, any action taken by Shareholders may be
taken without a meeting if a majority of Shareholders entitled to vote
on the matter (or such larger proportion thereof as shall be required
by applicable law or by any express provision of this Declaration of
Trust or the Bylaws) consents to the action in writing. Such consents
shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
Section 5. Additional Provisions. The Bylaws may include further provisions
for Shareholders' votes and meetings and related matters.
ARTICLE IX
CUSTODIAN
The Trustees may, in their discretion, from time to time enter into contracts
providing for custodial and accounting services to the Trust or any Series or
Class. The contracts shall be on the terms and conditions as the Trustees may
in their discretion determine not inconsistent with the provisions of this
Declaration of Trust or of the Bylaws. Such services may be provided by one or
more entities, including one or more sub-custodians.
ARTICLE X
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions.
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(a) The Trustees may from time to time declare and pay dividends
to the Shareholders of any Series or Class, and the amount of
such dividends and the payment of them shall be wholly in the
discretion of the Trustees. The frequency of dividends and
distributions to Shareholders may be determined by the
Trustees pursuant to a standing resolution, or otherwise.
Such dividends may be accrued and automatically reinvested in
additional Shares (or fractions thereof) of the relevant
Series or Class or another Series or Class, or paid in cash,
or additional shares of the relevant Series or Class, all
upon such terms and conditions as the Trustees may prescribe.
(b) The Trustees may distribute in respect of any fiscal year as
dividends and as capital gains distributions, respectively,
amounts sufficient to enable any Series or Class to qualify
as a regulated investment company and to avoid any liability
for federal income or excise taxes in respect of that year.
(c) The decision of the Trustees as to what constitutes income
and what constitutes principal shall be final, and except as
specifically provided herein the decision of the Trustees as
to what expenses and charges of any Series or Class shall be
charged against principal and what against the income shall
be final. Any income not distributed in any year may be
permitted to accumulate and as long as not distributed may be
invested form time to time in the same manner as the
principal funds any Series or Class.
(d) All dividends and distributions on Shares of a particular
Series or Class shall be distributed pro rata to the holders
of that Series or Class in proportion to the number of Shares
of that Series or Class held by such holders and recorded on
the books of the Trust or its transfer agent at the date and
time of record established for that payment.
Section 2. Redemptions and Repurchases.
(a) In case any Shareholder of record of any Series or Class at
any time desires to dispose of Shares of such Series of Class
recorded in his name, he may deposit a written request (or
such other form of request as the Trustees may from time to
time authorize) requesting that the Trust purchase his
Shares, together with such other instruments or
authorizations to effect the transfer as the Trustees may
from time to time require, at the office of the transfer
agent, or as otherwise provided by the Trustees and the Trust
shall purchase his Shares out of assets belonging to such
Series or Class. The purchase price shall be the net asset
value of his shares reduced by any redemption charge or
deferred sales charge as the Trustees from time to time may
determine.
Payment for such Shares shall be made by the Trust to the
Shareholder of record within that time period required under
the 1940 Act after the request (and, if required, such other
instruments or authorizations of transfer) is received,
subject to the right of the Trustees to postpone the date of
payment pursuant to Section 4 of this Article X. If the
redemption is postponed beyond the date on which it would
normally occur by reason of a declaration by the Trustees
suspending the right of redemption pursuant to
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Section 4 of this Article X, the right of the Shareholder to
have his Shares purchased by the Trust shall be similarly
suspended, and he may withdraw his request (or such other
instruments or authorizations of transfer) from deposit if he
so elects; or , if he does not so elect, the purchase price
shall be the net asset value of his Shares determined next
after termination of such suspension (reduced by any
redemption charge or deferred sales charge), and payment
therefor shall be made within the time period required under
the 1940 Act.
(b) The Trust may purchase Shares of a Series or Class by
agreement with the owner thereof at a purchase price not
exceeding the net asset value per Share (reduced by any
redemption charge or deferred sales charge) determined (1)
next after the purchase or contract of purchase is made or
(2) at some later time.
(c) The Trust may pay the purchase price (reduced by any
redemption charge or deferred sales charge) in whole or in
part by a distribution in kind of securities from the
portfolio of the relevant Series or Class, taking such
securities at the same value employed in determining net
asset value, and selecting the securities in such manner as
the Trustees may deem fair and equitable.
Section 3. Net Asset Value of Shares. The net asset value of each Share of a
Series or Class outstanding shall be determined at such time or times
as may be determined by or on behalf of the Trustees. The power and
duty to determine net asset value may be delegated by the Trustees
form time to time to one or more of the Trustees or officers of the
Trust, to the other party to any contract entered into pursuant to
Section 1 or 2 of Article VII or to the custodian or to a transfer
agent or other person designated by the Trustees.
The net asset value of each Share of a Series or Class as of any
particular time shall be the quotient (adjusted to the nearer cent)
obtained by dividing the value, as of such time, of the net assets
belonging to such Series or Class (i.e., the value of the assets
belonging to such Series or Class less the liabilities belonging to
such series or class exclusive of capital and surplus) by the total
number of Shares outstanding of the Series or Class at such time in
accordance with the requirements of the 1940 Act and applicable
provisions of the Bylaws of the Trust in conformity with generally
accepted accounting practices and principles.
The Trustees may declare a suspension of the determination of net
asset value for the whole or any part of any period in accordance with
the 1940 Act.
Section 4. Suspension of the Right of Redemption. The Trustees may declare a
suspension of the right of redemption or postpone the date of payment
for the whole or any part of any period in accordance with the 1940
Act.
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Section 5. Trust's Right to Redeem Shares. The Trust shall have the right to
cause the redemption of Shares of any Series or Class in any
Shareholder's account for their then current net asset value and
promptly make payment to the shareholder (which payment may be reduced
by any applicable redemption charge or deferred sales charge), if (a)
at any time the total investment in the account does not have a
minimum dollar value determined from time to time by the Trustees in
their sole discretion, (b) at any time a Shareholder fails to furnish
certified Social Security or Tax Identification Numbers, or (c) at any
time the Trustees determine in their sole discretion that failure to
so redeem may have materially adverse consequences to the other
Shareholders or the Trust or any Series or Class thereof.
ARTICLE XI
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Limitation of Personal Liability and Indemnification of
Shareholders. The Trustees, officers, employees or agents of the Trust
shall have no power to bind any Shareholder of any Series or Class
personally or to call upon such Shareholder for the payment of any sum
of money or assessment whatsoever, other that such as the Shareholder
may at any time agree to pay by way of subscription for any Shares or
otherwise.
No Shareholder or former Shareholder of any Series or Class shall be
liable solely by reason of his being or having been a Shareholder for
any debt, claim, action, demand, suit, proceeding, judgment, decree,
liability or obligation of any kind, against or with respect to the
Trust or any series or Class arising out of any action taken or
omitted for or on behalf of the Trust or such Series or Class, and the
Trust or such Series or Class shall be solely liable therefor and
resort shall be had solely to the property of the relevant Series or
Class of the Trust for the payment or performance thereof.
Each Shareholder or former Shareholder of any Series or Class (or
their heirs, executors, administrators or other legal representatives
or, in case of a corporation or other entity, its corporate or other
general successor) shall be entitled to be held harmless from and
indemnified against to the full extent of such liability and the costs
of any litigation or other proceedings in which such liability shall
have been determined, including, without limitation, the fees and
disbursements of counsel if, contrary to the provisions hereof, such
Shareholder or former Shareholder of such Series or Class shall be
held to be personally liable. Such indemnification shall come
exclusively from the assets of the relevant Series or Class.
The Trust shall, upon request by a Shareholder or former Shareholder,
assume the defense of any claim made against any Shareholder for any
act or obligation of the Trust or any Series or Class and satisfy any
judgment thereon.
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Section 2. Limitation of Personal Liability and Indemnification of Trustees,
Officers, Employees or Agents of the Trust. No Trustee, officer,
employee or agent of the Trust shall have the power to bind any other
Trustee, officer, employee or agent of the Trust personally. The
Trustees, officers, employees or agents of the Trust in incurring any
debts, liabilities or obligations, or in taking or omitting any other
actions for or in connection with the Trust, are, and each shall be
deemed to be, acting as Trustee, officer, employee or agent of the
Trust and not in his own individual capacity.
Trustees and officers of the Trust shall be liable for their willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee or officer, as
the case may be, and for nothing else.
Each person who is or was a Trustee, officer, employee or agent of the
Trust shall be entitled to indemnification out of the assets of the
Trust (or of any Series or Class) to the extent provided in, and
subject to the provisions of, the Bylaws, provided that no
indemnification shall be granted in contravention of the 1940 Act.
Section 3. Express Exculpatory Clauses and Instruments.
(a) All persons extending credit to, contracting with or having
any claim against the Trust or a particular Series or Class
shall only look to the assets of the Trust or the assets of
that Particular Series or Class 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 liable
therefor.
(b) The Trustees shall use every reasonable means to assure that
all persons having dealings with the Trust or any Series or
Class shall be informed that the property of the Shareholders
and the Trustees, officers, employees and agents of the trust
or any Series or Class shall not be subject to claims against
or obligations of the Trust or any other Series or Class to
any extent whatsoever. The Trustees shall cause to be
inserted in any written agreement, undertaking or obligation
made or issued on behalf of the Trust or any Series or Class
(including certificates for Shares of any Series or Class) an
appropriate reference to the provisions of this Declaration
of Trust, providing that neither the Shareholders, the
Trustees, the officers, the employees nor any agent of the
Trust or any Series or Class shall be liable thereunder, and
that the other parties to such instrument shall look solely
to the assets belonging to the relevant Series or Class for
the payment of any claim thereunder or for the performance
thereof; but the omission of such provisions from any such
instrument shall not render any Shareholder, Trustee,
officer, employee or agent liable, nor shall the Trustee, or
any officer, agent or employee of the Trust or any Series or
Class be liable to anyone for such omission. If,
notwithstanding this provision, any Shareholder, Trustee,
officer, employee or agent shall be held liable to any other
person by reason of the omission of such provision from any
such agreement, undertaking or obligation, the Shareholder,
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Trustee, officer, employee or agent shall be indemnified and
reimbursed by the Trust.
ARTICLE XII
MISCELLANEOUS
Section 1. Trust is not a Partnership. It is hereby expressly declared that a
trust and not a partnership is created hereby.
Section 2. Trustee Action Binding, Expert Advice, No Bond or Surety. The
exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. Subject to the provisions
of Article XI, the Trustees shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or
other experts with respect to the meaning and operation of this
Declaration of Trust, and subject to the provisions of Article XI,
shall be under no liability for any act or omission in accordance with
such advice or for failing to follow such advice. The Trustees shall
not be required to give any bond as such, nor any surety if a bond is
required.
Section 3. Establishment of Record Dates. The Trustees may close the Share
transfer books of the Trust maintained with respect to any Series or
Class for a period not exceeding ninety (90) days preceding the date
of any meeting of Shareholders of the Trust or any Series or Class, or
the date for the payment of any dividend or the making of any
distribution to Shareholders, or the date for the allotment of rights,
or the date when any change or conversion or exchange of Shares of any
Series or Class shall go into effect or the last day on which the
consent or dissent of Shareholders of any Series or Class may be
effectively expressed for any purpose; or in lieu of closing the Share
transfer books as a aforesaid, the Trustees may fix in advance a date,
not exceeding ninety (90) days preceding the date of any meeting of
Shareholders of the Trust or any Series or Class, or the date for the
payment of any dividend or the making of any distribution to
Shareholders of any Series or Class, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
Shares of any Series or Class shall go into effect, or the last day on
which the consent or dissent of Shareholders of any Series or Class
may be effectively expressed for any purpose, as a record date for the
determination of the Shareholders entitled to notice of, and, to vote
at, any such meeting and any adjournment thereof, or entitled to
receive payment of any such dividend or distribution, or to any such
allotment of rights, or to exercise the rights respect of any such
change, conversion or exchange of shares, or to exercise the right to
give such consent or dissent, and in such case such Shareholders and
only such Shareholders as shall be Shareholders of record on the date
so fixed shall be entitled to such notice of, and to vote at, such
meeting, or to receive payment of such dividend or distribution, or to
receive such allotment or rights, or to change, convert or exchange
Shares of any Series or Class, or to exercise such rights, as the case
may be, notwithstanding, after such date fixed aforesaid, any transfer
of any Shares on the
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books of the Trust maintained with respect to any Series or Class.
Nothing in the foregoing sentence shall be construed as precluding the
Trustees from setting different record dates for different Series or
Classes.
Section 4. Termination of Trust.
(a) This Trust shall continue without limitation of time but
subject to the provisions of paragraphs (b), (c) and (d) of
this Section 4.
(b) The Trustees may, by majority action, with the approval of a
Majority Shareholder Vote of each Series or Class entitled to
vote as determined by the Trustees under Section 5(d) of
Article III, sell and convey the assets of the Trust or any
Series or Class to another trust or corporation. Upon making
provision for the payment of all outstanding obligations,
taxes and other liabilities, accrued or contingent, belonging
to each Series or Class, the Trustees shall distribute the
remaining assets belonging to each Series or Class ratably
among the holders of the outstanding Shares of that Series or
Class. The Trustees shall make a good faith determination
that a conveyance of a part of the assets of a Series or
Class is in the best interest of Shareholders of the relevant
Series or Class.
(c) The Trustees may at any time sell and convert into money all
the assets of the Trust or any Series or Class without
Shareholder approval, unless otherwise required by applicable
law. Upon making provision for the payment of all outstanding
obligations, taxes and other liabilities, accrued or
contingent, belonging to each Series or Class, the Trustees
shall distribute the remaining assets belonging to each
Series or Class ratably among the holders of the outstanding
Shares of that Series or Class.
(d) Upon completion of the distribution of the remaining proceeds
of the remaining assets as provided in paragraphs (b) and
(c), the Trust or the applicable Series or Class shall
terminate and the Trustees shall be discharged of any and all
further liabilities and duties hereunder or with respect
thereto and the right, title and interest of all parties
shall be canceled and discharged.
Section 5. Offices of the Trust, Filing of Copies, Headings, Counterparts. The
Trust shall Maintain a usual place of business in Massachusetts,
which, initially, shall be c/o CT CORPORATION SYSTEM, 2 Oliver Street,
Boston, Massachusetts 02109, and shall continue to maintain an office
at such address unless changed by the Trustees to another location in
Massachusetts. The Trust may maintain other offices as the Trustees
may from time to time determine. The original or a copy of this
instrument and of each declaration to trust supplemental hereto shall
be kept at the office of the Trust where it may be inspected by any
Shareholder. A copy of this instrument and of each supplemental
declaration of trust shall be filed by the Trustees with the
Massachusetts Secretary of State and the Boston City Clerk, as well as
any other
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governmental office where such filing may from time to time be
required. Headings are placed herein for convenience of reference only
and in case of any conflict, the text of this instrument, rather than
the headings shall control. This instrument may be executed in any
number of counterparts each of which shall be deemed an original.
Section 6. Applicable Law. The Trust set forth in this instrument is created
under and is to be governed by and construed and administered
according to the laws of The Commonwealth of Massachusetts. The Trust
shall be of the type commonly called a Massachusetts business trust,
and without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust.
Section 7. Amendments - General. 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, so long as such
amendment does not adversely affect the rights of any Shareholder with
respect to which such amendment is or purports to be applicable and so
long as such amendment is not in contravention of applicable law,
including the 1940 Act, 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). Any amendment to this
Declaration of Trust that adversely affects the rights of Shareholders
may be adopted at any time by an instrument signed in writing by a
majority of the then Trustees (or by any officer of the Trust pursuant
to the vote of a majority of such Trustees) when authorized to do so
by the vote of the Shareholders holding a majority of the Shares
entitled to vote. Subject to the foregoing, any such amendment shall
be effective as provided in the instrument containing the terms of
such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a
certificate (which may be a part of such instrument) executed by a
Trustee or officer to the effect that such amendment has been duly
adopted. Copies of the amendment to this Declaration of Trust shall be
filed as specified in Section 5 of this Article XII. A restated
Declaration of Trust, integrating into single instrument all of the
provisions of the Declaration of Trust which are then in effect and
operative, may be executed from time to time by a majority of the
Trustees and shall be effective upon filing as specified in Section 5.
Section 8. Amendments - Series and Classes. The establishment and designation
of any Series or Class of Shares in addition to those established and
designated in Section 5 of Article III hereof shall be effective upon
the execution by a majority of the then Trustees, without the need for
Shareholder approval, of an amendment to this Declaration of Trust,
taking the form of a complete restatement or otherwise, setting forth
such establishment and designation and the relative rights and
preferences of any such Series or Class, or as otherwise provided in
such instrument.
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Without limiting the generality of the foregoing, the Declaration of
the Trust may be amended without the need for Shareholder approval to:
(a) create one or more Series or Classes of Shares (in addition
to any Series or Classes already existing or otherwise) with
such rights and preferences and such eligibility requirements
for investment therein as the Trustees shall determine and
reclassify any or all outstanding Shares as Shares of
particular Series or Classes in accordance with such
eligibility requirements;
(b) combine two or more Series or Classes of Shares into a single
Series or Class on such terms and conditions as the Trustees
shall determine;
(c) change or eliminate any eligibility requirements for
investment in Shares of any Series or Class, including
without limitation the power to provide for the issue of
Shares of any Series or Class in connection with any merger
or consolidation of the Trust with another trust or company
or any acquisition by the Trust of part or all of the assets
of another trust or company;
(d) change the designation of any Series or Class of Shares;
(e) change the method of allocating dividends among the various
Series and Classes of Shares;
(f) allocate any specific assets or liabilities of the Trust or
any specific items of income or expense of the Trust to one
or more Series and Classes of Shares; and
(g) specifically allocate assets to any or all Series or Classes
of Shares or create one or more additional Series or Classes
of Shares which are preferred over all other Series or
Classes of Shares in respect of assets specifically allocated
thereto or any dividends paid by the Trust with respect to
any net income, however determined, earned from the
investment and reinvestment of any assets so allocated or
otherwise and provide for any special voting or other rights
with respect to such Series or Classes.
Section 9. Use of Name. The Trust acknowledges that Impact Networks has
reserved the right to grant the non-exclusive use of the name "Impact
Management Investment Trust" or any derivative thereof to any other
investment company, investment company portfolio, investment adviser,
distributor, or other business enterprise, and to withdraw from the
Trust or one or more Series or Classes any right to the use of the
name "Impact Management Investment Trust".
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IN WITNESS WHEREOF, THE UNDERSIGNED HAVE EXECUTED THIS INSTRUMENT AS OF THE DAY
AND YEAR FIRST ABOVE WRITTEN.
/S/ CHARLES R. CLARK /S/ RONALD STILLER
- ------------------------------------- ----------------------------------
Charles R. Clark, Settlor and Trustee Ronald Stiller, Settlor and
Trustee
/S/ OLEEN EAGLE /S/ GERALD BOWYER
- ------------------------------------- ----------------------------------
Oleen Eagle, Settlor and Trustee Gerald Bowyer, Settlor and Trustee
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<PAGE> 27
COMMONWEALTH OF PENNSYLVANIA )
) : ss
COUNTY OF ALLEGHENY )
I hereby certify that on December 18, 1996, before me, the subscriber, a Notary
Public of the Commonwealth of Pennsylvania, in for the County of Allegheny,
personally appeared Charles R. Clark, Ronald Stiller, Oleen Eagle, and Gerald
Bowyer who acknowledged the foregoing Declaration of Trust to be their act.
Witness my hand and notarial seal the day and year above written.
/S/ DARLENE F. SCHIFFER Notarial Seal
- ------------------------------- Darlene F. Schiffer, Notary Public
Notary Public Pittsburgh, Allegheny County
My Commission Expires June 29, 1998
Member, Pennsylvania Association of Notaries
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<PAGE> 1
EXHIBIT 2
BYLAWS
OF
IMPACT MANAGEMENT INVESTMENT TRUST
A MASSACHUSETTS BUSINESS TRUST
FORMED ON DECEMBER 18, 1996 AND
REGISTERED WITH THE COMMONWEALTH
OF MASSACHUSETTS ON JANUARY 2, 1997
DATED: JANUARY 2, 1997
<PAGE> 2
BYLAWS
OF
IMPACT MANAGEMENT INVESTMENT TRUST
ARTICLE I
SHAREHOLDERS
SECTION 1.1 ANNUAL MEETING. Pursuant to Massachusetts law, there shall
be no requirement for annual meetings of the shareholders.
SECTION 1.2 SPECIAL MEETINGS. Special meetings of the shareholders may
be called at any time by (i) the Board of Trustees or (ii) by shareholders
entitled to cast at least twenty percent (20%) of the votes that all
shareholders are entitled to cast at the particular meeting. Upon written
request of any person who has duly called a special meeting, the secretary
shall fix the time of the meeting which shall be held not more than sixty (60)
days after the receipt of the request. If the secretary neglects or refuses to
fix the time of the meeting, the person or persons duly calling the meeting may
do so.
SECTION 1.3 PLACE OF MEETING. All meetings of the shareholders shall
be held at the principal office of the Trust, its Administrator or at such
other place, within or without the Commonwealth of Massachusetts, as may be
designated by the Board of Trustees from time to time.
SECTION 1.4 NOTICE. Except as provided in Section 1.6 of these bylaws,
written notice of every meeting of the shareholders shall be given by, or at
the direction of, the secretary or other authorized person or, if he or she
neglects or refuses to do so, may be given by the person or persons calling the
meeting, to each shareholder of record entitled to vote at the meeting, at
least thirty (30), but not more than sixty (60) days prior to the day named for
a meeting called to consider a fundamental transaction. The notice of meeting
shall specify the place, day and hour of the meeting and, in the case of a
special meeting, the general nature of the business to be transacted, and, if
applicable, the notice shall state that the purpose, or one of the purposes, of
the meeting is to consider the adoption, amendment or repeal of the bylaws in
which case the notice shall include, or be accompanied by, a copy of the
proposed amendment or a summary of the changes to be effected thereby.
SECTION 1.5 QUORUM. A shareholders' meeting duly called shall not be
organized for the transaction of business unless a quorum is present. The
presence in person or by proxy of shareholders entitled to cast at least a
majority of the votes that all shareholders are entitled to cast on a
particular matter to be acted upon at the meeting shall constitute a quorum for
the purposes of consideration and action on such matter. The shareholders
present at a duly organized meeting can continue to do business until
adjournment
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notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. If a meeting cannot be organized because a quorum has not attended,
those present may adjourn the meeting to such time and place as they may
determine. Those shareholders entitled to vote who attend a meeting called for
the election of Trustees that has previously been adjourned for lack of a
quorum, although less than a quorum as fixed herein, shall nevertheless
constitute a quorum for the purpose of electing Trustees. In other cases, those
shareholders entitled to vote who attend a meeting of shareholders that has
been previously adjourned for one or more periods aggregating at least fifteen
(15) days because of an absence of a quorum, although less than a quorum as
fixed herein, shall nevertheless constitute a quorum for the purpose of acting
upon any matter set forth in the notice of the meeting, provided that the
notice of the meeting states that those shareholders who attend such adjourned
meeting shall nevertheless constitute a quorum for the purpose of acting upon
the matter set forth in the notice.
SECTION 1.6 ADJOURNMENTS. Adjournment or adjournments of any annual or
special meeting of shareholders, other than one at which Trustees are to be
elected, may be taken for such period or periods as the presiding officer of
the meeting or the shareholders present in person or by proxy and entitled to
vote shall direct. A meeting at which Trustees are to be elected shall be
adjourned only from day to day, or for such longer periods not exceeding
fifteen (15) days each as the shareholders present and entitled to vote shall
direct, until the Trustees have been elected. When a meeting of shareholders is
adjourned, it shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted at the adjourned meeting other than
by announcement at the meeting at which the adjournment is taken, unless the
Board of Trustees fixes a new record date for the adjourned meeting.
SECTION 1.7 ACTION BY SHAREHOLDERS. Whenever any Trust action is to be
taken by vote of the shareholders, it shall be authorized upon receiving the
affirmative vote of a majority of the votes cast by all shareholders entitled
to vote thereon, and if any shareholders are entitled to vote thereon as a
class, upon receiving the affirmative vote of a majority of the votes cast by
the shareholders entitled to vote as a class thereon, except where a different
vote is required by law or the Declaration of Trust or these bylaws.
SECTION 1.8 VOTING RIGHTS OF SHAREHOLDERS. Unless otherwise provided
in the Declaration of Trust, every shareholder shall be entitled to one vote
for every share outstanding in such shareholder's name on the books of the
Trust.
SECTION 1.9. PROXIES. Every shareholder entitled to vote at a meeting
of shareholders or to express consent or dissent to Trust action in writing
without a meeting may authorize another person or persons to act for such
shareholder by proxy. The presence of, or vote or other action at a meeting of
shareholders, or the expression of consent or dissent to Trust action in
writing, by a proxy of a shareholder shall constitute the presence of, or vote
or action by, or written consent or dissent of the shareholder.
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SECTION 1.10 VOTING LIST. The officer or agent having charge of the
transfer books for shares of the Trust shall make a complete list of the
shareholders entitled to vote at any meeting of shareholders, arranged in
alphabetical order, with the address of and the number of shares held by each.
The list shall be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting for the purposes thereof. Failure to comply with the
requirements of this bylaw shall not affect the validity of any action taken at
a meeting prior to a demand at the meeting by any shareholder entitled to vote
thereat to examine the list.
SECTION 1.11 DETERMINATION OF SHAREHOLDERS OF RECORD.
(A) The Board of Trustees may fix a time prior to the date of any
meeting of shareholders as a record date for the determination of the
shareholders entitled to notice of, or to vote at, the meeting, which time,
except in the case of an adjourned meeting, shall be not more than ninety (90)
days prior to the date of the meeting of shareholders. Only shareholders of
record on the date fixed shall be entitled to notice of, or to vote at, such
meeting, notwithstanding any transfer of shares on the books of the Trust after
the record date so fixed. The Board of Trustees may similarly fix a record date
for the determination of shareholders of record for payment of dividends or for
any other purpose. When a determination of shareholders of record has been made
as provided in this bylaw for purposes of a meeting, the determination shall
apply to any adjournment thereof unless the board fixes a new record date for
the adjourned meeting.
(B) If a record date is not fixed:
(i) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day immediately preceding the
day on which the meeting is held.
(ii) The record date for determining shareholders entitled to
express consent or dissent to Trust action in writing without a meeting, when
prior action by the Board of Trustees is not necessary, or to call a special
meeting of the shareholders or to propose an amendment of the Declaration of
Trust, shall be the close of business on the day on which the first written
consent or dissent, request for special meeting or petition proposing an
amendment of the Declaration of Trust is filed with the secretary of the Trust.
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(iii) The record date for determining shareholders for any
other purpose shall be at the close of business on the day on which the Board
of Trustees adopts the resolution relating thereto.
SECTION 1.12 PRESIDING OFFICER. All meetings of the shareholders shall
be called to order and presided over by the chairperson of the board, if any,
or, if there is no chairperson or in the chairperson's absence, by the
president, or, in the absence of the president, by a chairperson of the meeting
elected by the shareholders.
SECTION 1.13 ELECTION OF TRUSTEES. In elections for Trustees, voting
need not be by ballot, unless required by vote of the shareholders, before the
voting for election of Trustees begins. The candidates receiving the highest
number of votes entitled to elect Trustees shall be elected.
SECTION 1.14 JUDGES OF ELECTION. In advance of any meeting of
shareholders, the Board of Trustees may appoint judges of election, who need
not be shareholders, to act at such meeting or any adjournment thereof. If
judges of election are not so appointed, the presiding officer of any such
meeting may, and on the request of any shareholder shall, make such appointment
at the meeting. The number of judges shall be one or three. No person who is a
candidate for office to be filled at the meeting shall act as a judge. In case
any person appointed as a judge fails to appear or fails or refuses to act, the
vacancy may be filled by appointment made by the Board of Trustees in advance
of the convening of the meeting or at the meeting by the presiding officer
thereof. The judge or judges of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect
of proxies, shall receive votes or ballots, shall hear and determine all
challenges and questions in any way arising in connection with the right to
vote, shall count and tabulate all votes and determine the result and shall do
such acts as may be proper to conduct the election or vote with fairness to all
shareholders. The judge or judges of election shall perform their duties
impartially, in good faith, to the best of their ability, and as expeditiously
as is practical. If there are three judges in election, the decision, act or
certificate of a majority shall be effective in all respects as the decision,
act or certificate of all. On request of the presiding officer of the meeting,
or of any shareholder, the judge or judges shall make a report in writing of
any challenge or question or matter determined by them and execute a
certificate of any fact found by them. Any report or certificate made by them
shall be prima facie evidence of the facts stated therein.
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ARTICLE II
BOARD OF TRUSTEES
SECTION 2.1 GENERAL. All powers vested by law in the Trust shall be
exercised by or under the authority of, and the business and affairs of the
Trust shall be managed under the direction of, the Board of Trustees.
SECTION 2.2 NUMBER, QUALIFICATIONS, TERM OF OFFICE. The Board of
Trustees of the Trust shall consist of at least three (3) and not more than
seven (7) Trustees, the exact number to be set from time to time by resolution
of the Board of Trustees of the Trust. Each Trustee shall be a natural person
of full age but need not be a resident of Pennsylvania or a shareholder of the
Trust. Each Trustee shall hold office until the expiration of the term for
which he or she was elected and until said Trustee's successor has been
selected and qualified or until said Trustee's earlier death, resignation or
removal. A decrease in the number of Trustees shall not have the effect of
shortening the term of any incumbent Trustee.
SECTION 2.3 ELECTION. Trustees of the Trust shall be elected by the
shareholders except as provided in Section 2.4 hereof.
SECTION 2.4 VACANCIES. Vacancies in the Board of Trustees, including
vacancies resulting from an increase in the number of Trustees, may be filled
by a majority vote of the remaining members of the board though less than a
quorum, or by a sole remaining Trustee, and each person so selected shall be a
Trustee to serve for the balance of the unexpired term and until his or her
successor has been selected and qualified or until his or her earlier death,
resignation or removal.
SECTION 2.5 REMOVAL AND RESIGNATION.
(A) Removal by action of shareholders. The entire Board of Trustees or
any individual Trustee may be removed from office without assigning any cause
by the vote of shareholders entitled to elect Trustees provided, however, that
an individual Trustee shall not be removed (unless the entire board is removed)
if sufficient votes are cast against the resolution for his or her removal
which, if cumulatively voted at an annual or other regular election of
Trustees, would be sufficient to elect one or more Trustees to the board. In
case the board or any one or more Trustees are so removed, new Trustees may be
elected at the same meeting.
(B) Removal by action of the Trustees. The Board of Trustees may
declare vacant the office of a Trustee if said Trustee: (i) has been judicially
declared of unsound mind; (ii) has been convicted of an offense punishable by
imprisonment for a term of more than one year; or (iii) if within sixty (60)
days after notice of his or her election, said Trustee does not accept such
office either in writing or by attending a meeting of the Board of Trustees and
fulfilling such other requirements of qualification as these bylaws or the
Declaration of Trust may provide.
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(C) Resignation. Any Trustee may resign at any time from his or her
position as Trustee of the Trust upon written notice to the Trust. The
resignation shall be effective upon receipt thereof by the Trust or at such
subsequent time as may be specified in the notice of resignation.
SECTION 2.6 REGULAR MEETINGS. The Board of Trustees shall hold regular
quarterly meetings for the transaction of major business and an annual meeting
for the election of officers and the transaction of other proper business at
such day, hour and place as may be fixed by the board. The Board of Trustees
may designate by resolution the day, hour and place, within or without the
Commonwealth of Massachusetts, of other regular meetings.
SECTION 2.7 SPECIAL MEETINGS. Special meetings of the board may be
called by the chairperson of the board, if any, the president or any two (2)
Trustees. The person or persons calling the special meeting may fix the day,
hour and place, within or without the Commonwealth of Massachusetts, of the
meeting.
SECTION 2.8 NOTICE OF MEETINGS. No notice of any annual or regular
meeting of the Board of Trustees need be given. Written notice of each special
meeting of the Board of Trustees, specifying the place, day and hour of the
meeting, shall be given to each Trustee at least 48 hours before the time set
for the meeting. Neither the business to be transacted at, nor the purpose of,
any annual, regular or special meeting of the board need be specified in the
notice of the meeting.
SECTION 2.9 QUORUM OF AND ACTION BY TRUSTEES A majority of the
Trustees in office shall constitute a quorum for the transaction of business,
and the acts of a majority of Trustees present and voting at a meeting at which
a quorum is present shall be the acts of the Board of Trustees except where a
different vote is required by law or the Declaration of Trust or these bylaws.
Every Trustee shall be entitled to one vote.
SECTION 2.10 INTERESTED TRUSTEES OR OFFICERS; QUORUM. A contract or
transaction between the Trust and one or more of its Trustees or officers, or
between the Trust and any other domestic or foreign Trust for profit or
not-for-profit partnership, joint venture, trust or other enterprise in which
one or more of this Trust's Trustees or officers are Trustees or officers or
have a financial or other interest, shall not be void or voidable solely for
that reason, or solely because the common or interested Trustee or officer is
present at or participates in the meeting of the board that authorizes the
contract or transaction, or solely because of the common or interested
Trustee's or officer's vote is counted for such purpose, if: (1) the material
facts as to the relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Trustees and the board authorizes
the contract or transaction by the affirmative vote of a majority of the
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disinterested Trustees even though the disinterested Trustees are less than a
quorum; or (2) the material facts as to the Trustee's or officer's relationship
or interest and as to the contract or transaction are disclosed or are known to
the shareholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of those shareholders; or (3) the
contract or transaction is fair as to this Trust as of the time it is
authorized, approved or ratified by the Board of Trustees or the shareholders.
Common or interested Trustees may be counted in determining the presence of a
quorum at a meeting of the Board of Trustees which authorizes a contract or
transaction specified in this Section 2.10.
SECTION 2.11 COMPENSATION. By resolution of the Board of Trustees,
each Trustee may be paid his or her expenses, if any, of attendance at each
meeting of the Board of Trustees or committee thereof, and may be paid a stated
salary as Trustee or a fixed sum for attendance at each meeting of the Board of
Trustees or committee thereof or both. No such payment shall preclude any
Trustee from serving the Trust in any other capacity and receiving compensation
therefor and a Trustee may be a salaried officer or employee of the Trust.
SECTION 2.12 PRESUMPTION OF ASSENT. A Trustee of the Trust who is
present at a meeting of the Board of Trustees, or of a committee of the board,
at which action on any Trust matter is taken on which the Trustee is generally
competent to act, shall be presumed to have assented to the action taken unless
his or her dissent is entered in the minutes of the meeting or unless such
Trustee files his or her written dissent to the action with the secretary of
the meeting before the adjournment thereof or transmits the dissent in writing
to the secretary of the Trust immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Trustee who voted in favor of the
action. Nothing in this section shall bar a Trustee from asserting that minutes
of a meeting incorrectly omitted said Trustee's dissent if, promptly upon
receipt of a copy of such minutes, said Trustee notified the secretary, in
writing, of the asserted omission or inaccuracy.
SECTION 2.13 PRESIDING OFFICER. All meetings of the Board of Trustees
shall be called to order and presided over by the chairperson of the Board of
Trustees, if any, or, if there is no chairperson or in the chairperson's
absence, by the president or, in the absence of the chairperson and president,
by a chairperson of the meeting elected at such meeting by the Board of
Trustees.
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ARTICLE III
COMMITTEES OF THE BOARD
SECTION 3.1 COMMITTEES OF THE BOARD. The Board of Trustees may, by
resolution adopted by a majority of the Trustees in office, establish one or
more committees, each committee to consist of one or more of the Trustees of
the Trust. The board may designate one or more Trustees as alternate members of
any committee who may replace any absent or disqualified member at any meeting
of the committee or for purposes of any written action of the committee. A
committee, to the extent provided in the resolution of the Board of Trustees
creating it, shall have and may exercise all of the powers and authority of the
Board of Trustees except that a committee shall not have any power or authority
as to: (i) the submission to shareholders of any action requiring the approval
of shareholders, (ii) the creation or filling of vacancies in the Board of
Trustees, (iii) the adoption, amendment or repeal of the bylaws, (iv) the
amendment, adoption or repeal of any resolution of the board that by its terms
is amendable or repealable only by the board, or (v) action on matters
committed by the bylaws or resolution of the board to another committee of the
board. Each committee of the board shall serve at the pleasure of the board.
SECTION 3.2 COMMITTEE RULES. Unless the Board of Trustees provides
otherwise by resolution each committee shall conduct its business and take
action in the same manner as the board conducts its business pursuant to the
Declaration of Trust and these bylaws.
ARTICLE IV
OFFICERS
SECTION 4.1 OFFICERS AND QUALIFICATIONS. The Trust shall have a
president, a secretary, and a treasurer, each of whom shall be elected or
appointed by the Board of Trustees. The board may also elect a chairperson of
the Board of Trustees, one or more vice presidents, and such other officers and
assistant officers as the board deems necessary or advisable. All officers
shall be natural persons of full age. Any two or more offices may be held by
the same person. It shall not be necessary for officers to be Trustees of the
Trust. Officers of the Trust, as between themselves and the Trust, shall have
such authority and perform such duties in the management of the Trust as is
provided by or pursuant to these bylaws or in the absence of controlling
provisions in these bylaws as is determined by or pursuant to resolutions or
orders of the Board of Trustees.
SECTION 4.2 ELECTION, TERM, AND VACANCIES. The officers and assistant
officers of the Trust shall be elected by the Board of Trustees at the annual
meeting of the board or from time to time as the board shall determine and each
officer shall hold office for one (1) year and until his or her successor has
been duly elected and qualified or until said officer's earlier death,
resignation or removal. A vacancy in any office occurring in any manner may be
filled by the Board of Trustees and, if the office is one for which these
bylaws prescribe a term, shall be filled for the unexpired portion of the
terms.
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SECTION 4.3 REMOVAL; RESIGNATION; BOND.
(A) Removal. Any officer or agent of the Trust may be removed by the
Board of Trustees with or without cause, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
(B) Resignation. Any officer may resign at any time upon written
notice to the Trust. The resignation shall be effective upon receipt thereof by
the Trust or at such subsequent time as may be specified in the notice of
resignation.
(C) Bond. The Trust may secure the fidelity of any or all of its
officers by bond or otherwise.
SECTION 4.4 CHAIRPERSON OF THE BOARD. The chairperson of the Board of
Trustees, if any, shall preside at all meetings of the shareholders and of the
Trustees at which he or she is present, and shall have such authority and
perform such duties as the Board of Trustees may from time to time designate.
SECTION 4.5 PRESIDENT. The president shall, in the absence of the
chairperson of the board, if any, preside at all meetings of the shareholders
and of the Board of Trustees at which he or she is present, and shall be the
chief executive officer of the Trust. Subject to the control of the Board of
Trustees and, within the scope of their authority, any committees thereof, the
president shall (a) have general and active management of all the business,
property and affairs of the Trust, (b) see that all orders and resolutions of
the Board of Trustees and the committees thereof are carried into effect, (c)
appoint and remove subordinate officers and agents, other than those appointed
or elected by the Board of Trustees, as the business of the Trust may require,
(d) have custody of the Trust seal, or entrust the same to the secretary, (e)
act as the duly authorized representative of the board in all matters, except
where the board has formally designated some other person or group to act, and
(f) in general perform all the usual duties incident to the office of president
and such other duties as may be assigned to such person by the Board of
Trustees.
SECTION 4.6 VICE PRESIDENT. Each vice president, if any, shall perform
such duties as may be assigned to him or her by the Board of Trustees or the
president. In the absence or disability of the president, the most senior in
rank of the vice presidents, if any, shall perform the duties of the president.
SECTION 4.7 SECRETARY. The secretary shall (a) keep or cause to be
kept the minutes of all meetings of the shareholders, the Board of Trustees,
and any committees of the Board of Trustees in one or more books kept for that
purpose, (b) have custody of the Trust records, stock books and stock ledgers
of the Trust, (c) keep or cause to be kept a register of the address of each
shareholder, which address has been furnished to the secretary by such
shareholder, (d) see that all notices are duly given in accordance with law,
the Declaration of Trust, and these bylaws, and (e) in general perform all the
usual duties incident to the office of secretary and such other duties as may
be assigned to him or her by the Board of Trustees or the president.
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SECTION 4.8 ASSISTANT SECRETARY. The assistant secretary, if any, or
assistant secretaries if more than one, shall perform the duties of the
secretary in his or her absence and shall perform such other duties as the
Board of Trustees, the president or the secretary may from time to time
designate.
SECTION 4.9 TREASURER. The treasurer shall have general supervision of
the fiscal affairs of the Trust. The treasurer shall, with the assistance of
the president and managerial staff of the Trust: (a) see that a full and
accurate accounting of all financial transactions is mad; (b) invest and
reinvest the capital funds of the Trust in such manner as may be directed by
the board, unless such function shall have been delegated to a nominee or
agent; (c) deposit or cause to be deposited in the name and to the credit of
the Trust, in such depositories as the Board of Trustees shall designate, all
monies and other valuable effects of the Trust not otherwise employed; (d)
prepare such financial reports as may be requested from time to time by the
board; (e) cooperate in the conduct of any annual audit of the Trust's
financial records by certified public accountants duly appointed by the board;
and (f) in general perform all the usual duties incident to the office of
treasurer and such other duties as may be assigned to him or her by the Board
of Trustees or the president.
SECTION 4.10 SALARIES. Unless otherwise provided by the board, the
salaries of each of the officers elected by the board shall be fixed from time
to time by the Board of Trustees and the salaries of all other officers of the
Trust shall be fixed from time to time by the president or such other person as
may be designated from time to time by the president or the board.
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ARTICLE V
SHARE CERTIFICATES AND TRANSFERS
SECTION 5.1 CERTIFICATES. The Trust shall not issue share
certificates. All account information shall be maintained electronically. Each
shareholder shall receive a quarterly statement advising him of the status of
his account, plus confirmations of purchase and sales of shares of the Trust.
SECTION 5.2 TRANSFER OF SHARES. Transfer of shares of the Trust shall
be made only on the stock transfer records of the Trust (which may be kept in
written or computer form). Transfers shall be made by the Trust or its duly
authorized agent as required by law. The Trust shall be entitled to treat the
person in whose name shares stand on the books of the Trust as the owner
thereof for all purposes.
ARTICLE VI
MANNER OF GIVING NOTICE, WAIVER OF NOTICE,
ACTION WITHOUT MEETING, BY CONFERENCE TELEPHONE
AND MODIFICATION OF PROPOSALS
SECTION 6.1 MANNER OF GIVING NOTICE. Whenever written notice is
required to be given to any person or by the Declaration of Trust or these
bylaws, it may be given to the person either personally or by sending a copy
thereof by first class or express mail, postage prepaid, or by telegram (with
messenger service specified, telex or TWX (with answerback received) or courier
service, charges prepaid, or by facsimile transmission, to the shareholder's
address (or to the shareholder's telex, TWX, or facsimile number) appearing on
the books of the Trust or, in the case of Trustees, supplied by the Trustee to
the Trust for the purpose of notice. Notice sent by mail, by telegraph or by
courier service shall be deemed to have been given when deposited in the United
States mail or with a telegraph officer or courier service for delivery, except
that, in the case of Trustees, notice sent by regular mail shall be deemed to
have been given forty-eight hours after being deposited in the United States
mail or, in the case of telex, TWX or facsimile, when dispatched.
SECTION 6.2 WAIVER OF NOTICE. Whenever any written notice is required
to be given by statute or the Declaration of Trust or these bylaws, a waiver
thereof in writing, signed by the person or persons entitled to the notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of the notice. Neither the business to be transacted at, nor the
purpose of, a meeting need be specified in the waiver of notice of such
meeting. Attendance of a person, either in person or by proxy, at any meeting
shall constitute a waiver of notice of the meeting, except where the person
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting was not
lawfully called or convened.
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SECTION 6.3 ACTION BY UNANIMOUS WRITTEN CONSENT. Any action required
or permitted to be taken at a meeting of the shareholders, of a class of
shareholder, or the Trustees, or of any committee of Trustees may be taken
without a meeting if, prior or subsequent to the action, a consent or consents
thereto in writing setting forth the action so taken is signed by all the
shareholders who would be entitled to vote at a meeting for such purpose, or by
all of the Trustees in office, or by all of the members of such committee in
office, as the case may be, and is filed with the secretary of the Trust.
SECTION 6.4 SHAREHOLDER ACTION BY PARTIAL WRITTEN CONSENT. Any action
required or permitted to be taken at a meeting of the shareholders or of a
class of shareholders may be taken without a meeting upon the written consent
of shareholders who would have been entitled to cast the minimum number of
votes that would be necessary to authorize the action at a meeting at which all
shareholders entitled to vote thereon were present and voting. The consents
shall be filed with the secretary of the Trust. The action shall not become
effective until after at least ten (10) days' written notice of the action has
been given to each shareholder entitled to vote thereon who has not consented
thereto.
SECTION 6.5 MEETINGS BY MEANS OF CONFERENCE TELEPHONE. One or more
persons may participate in a meeting of the shareholders, of the Trustees, or
of any committee of Trustees, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Such participation shall constitute presence in
person at the meeting.
SECTION 6.6 MODIFICATION OF PROPOSALS. Whenever the language of a
proposed resolution is included in a written notice of a meeting required to be
given by statute or by the Declaration of Trust or these bylaws, the meeting
considering the resolution may without further notice adopt it with such
clarifying or other amendments as do not enlarge its original purpose.
ARTICLE VII
CERTAIN SHAREHOLDER RIGHTS
SECTION 7.1 FINANCIAL REPORTS TO SHAREHOLDERS. In addition to
quarterly account statements, unaudited semi-annual and audited annual
financial statements of the Trust shall be furnished to the shareholders.
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SECTION 7.2 INSPECTION OF TRUST RECORDS. Every shareholder shall, upon
written verified demand stating the purpose thereof, have a right to examine,
in person or by agent or attorney, during the usual hours for business for any
proper purpose, the share register, books and records of account, and records
of the proceedings of the shareholders and Trustees and to make copies or
extracts therefrom. A proper purpose shall mean a purpose reasonably related to
the interest of the person as a shareholder. In every instance where an
attorney or other agent is the person who seeks the right of inspection, the
demand shall be accompanied by a verified power of attorney or other writing
that authorizes the attorney or other agent to so act on behalf of the
shareholder. The demand shall be directed to the Trust at its registered office
in Massachusetts or at its principal place of business wherever situated.
ARTICLE VIII
PERSONAL LIABILITY, INDEMNIFICATION AND INSURANCE
SECTION 8.1 LIMITATION OF PERSONAL LIABILITY AND INDEMNIFICATION OF
SHAREHOLDERS.
(A) The Trustees, officers, employees or agents of the Trust shall
have no power to bind any Shareholder of any Series or Class personally or to
call upon such Shareholder for the payment of any sum of money or assessment
whatsoever, other that such as the Shareholder may at any time agree to pay by
way of subscription for any Shares or otherwise.
(B) No Shareholder or former Shareholder of any Series or Class shall
be liable solely by reason of his being or having been a Shareholder for any
debt, claim, action, demand, suit, proceeding, judgment, decree, liability or
obligation of any kind, against or with respect to the Trust or any series or
Class arising out of any action taken or omitted for or on behalf of the Trust
or such Series or Class, and the Trust or such Series or Class shall be solely
liable therefor and resort shall be had solely to the property of the relevant
Series or Class of the Trust for the payment or performance thereof.
(C) Each Shareholder or former Shareholder of any Series or Class (or
their heirs, executors, administrators or other legal representatives or, in
case of a corporation or other entity, its Trust or other general successor)
shall be entitled to be held harmless from and indemnified against to the full
extent of such liability and the costs of any litigation or other proceedings
in which such liability shall have been determined, including, without
limitation, the fees and disbursements of counsel if, contrary to the
provisions hereof, such Shareholder or former Shareholder of such Series or
Class shall be held to be personally liable. Such indemnification shall come
exclusively from the assets of the relevant Series or Class.
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(D) The Trust shall, upon request by a Shareholder or former
Shareholder, assume the defense of any claim made against any Shareholder for
any act or obligation of the Trust or any Series or Class and satisfy any
judgment thereon.
SECTION 8.2. LIMITATION OF PERSONAL LIABILITY AND INDEMNIFICATION OF
TRUSTEES, OFFICERS, EMPLOYEES OR AGENTS OF THE TRUST.
(A) No Trustee, officer, employee or agent of the Trust shall have the
power to bind any other Trustee, officer, employee or agent of the Trust
personally. The Trustees, officers, employees or agents of the Trust in
incurring any debts, liabilities or obligations, or in taking or omitting any
other actions for or in connection with the Trust, are, and each shall be
deemed to be, acting as Trustee, officer, employee or agent of the Trust and
not in his own individual capacity.
(B) Trustees and officers of the Trust shall be liable for their
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee or officer, as the case
may be, and for nothing else.
(C) Each person who is or was a Trustee, officer, employee or agent of
the Trust shall be entitled to indemnification out of the assets of the Trust
(or of any Series or Class) to the extent provided in, and subject to the
provisions of, the Bylaws, provided that no indemnification shall be granted in
contravention of the 1940 Act.
SECTION 8.3. EXPRESS EXCULPATORY CLAUSES AND INSTRUMENTS.
(A) All persons extending credit to, contracting with or having any
claim against the Trust or a particular Series or Class shall only look to the
assets of the Trust or the assets of that Particular Series or Class 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 liable therefor.
(B) The Trustees shall use every reasonable means to assure that all
persons having dealings with the Trust or any Series or Class shall be informed
that the property of the Shareholders and the Trustees, officers, employees and
agents of the trust or any Series or Class shall not be subject to claims
against or obligations of the Trust or any other Series or Class to any extent
whatsoever. The Trustees shall cause to be inserted in any written agreement,
undertaking or obligation made or issued on behalf of the Trust or any Series
or Class (including certificates for Shares of any Series or Class) an
appropriate reference to the provisions of this Declaration of Trust, providing
that neither the Shareholders, the Trustees, the officers, the employees nor
any agent of the Trust or any Series or Class shall be liable thereunder, and
that the other parties to such instrument shall look solely to the assets
belonging to the relevant
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Series or Class for the payment of any claim thereunder or for the performance
thereof; but the omission of such provisions from any such instrument shall not
render any Shareholder, Trustee, officer, employee or agent liable, nor shall
the Trustee, or any officer, agent or employee of the Trust or any Series or
Class be liable to anyone for such omission. If, notwithstanding this
provision, any Shareholder, Trustee, officer, employee or agent shall be held
liable to any other person by reason of the omission of such provision from any
such agreement, undertaking or obligation, the Shareholder, Trustee, officer,
employee or agent shall be indemnified and reimbursed by the Trust.
SECTION 8.4 PAYMENT OF INDEMNIFICATION. If a claim for indemnification
under Section 8.2 hereof is not paid in full by the Trust within thirty (30)
days after a written claim therefore has been received by the Trust, the
claimant may, at any time thereafter, bring suit against the Trust to recover
the unpaid amount of the claim and, if successful in whole or in part on the
merits or otherwise in establishing his or her right to indemnification or to
the advancement of expenses, the claimant shall be entitled to be paid also the
expense of prosecuting such claim.
SECTION 8.5 NON-EXCLUSIVITY OF RIGHTS. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of a
final disposition conferred in Section 8.2 and the right to payment of expenses
conferred in Section 8.3 shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses hereunder may be
entitled under any bylaw, agreement, vote of shareholders, vote of Trustees or
otherwise, both as to actions in his or her official capacity and as to actions
in any other capacity while holding that office, the Trust having the express
authority to enter into such agreements or arrangements as the Board of
Trustees deems appropriate for the indemnification of and advancement of
expenses to present and future Trustees and officers as well as employees,
representatives or agents of the Trust in connection with their status with or
services to or on behalf of the Trust or any other corporation, partnership,
joint venture, trust or other enterprise, including any employee benefit plan,
for which such person is serving at the request of the Trust.
SECTION 8.6 FUNDING. The Trust may create a fund of any nature, which
may, but need not be, under the control of a trustee, or otherwise secure or
insure in any manner its indemnification obligations, including its obligation
to advance expenses, whether arising under or pursuant to this Article VIII or
otherwise.
SECTION 8.7 INSURANCE. The Trust may purchase and maintain insurance
on behalf of any person who is or was a Trustee or officer or representative of
the Trust, or is or was serving at the request of the Trust as a representative
of another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of his or her status as such, whether or
not the Trust has the power to indemnify such person against such liability
under the laws of this or any other state.
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SECTION 8.8 MODIFICATION OR REPEAL. Neither the modification,
amendment, alteration or repeal of this Article VIII or any of its provisions
nor the adoption of any provision inconsistent with this Article VIII or any of
its provisions shall adversely affect the rights of any person to
indemnification and advancement of expenses existing at the time of such
modification, amendment, alteration or repeal or the adoption of such
inconsistent provision.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 REGISTERED OFFICE. The registered office of the Trust,
required by law to be maintained in the Commonwealth of Massachusetts, shall,
shall be c/o CT CORPORATION SYSTEM, 2 Oliver Street, Boston, Massachusetts
02109, and shall continue to be maintained as an office at such address unless
changed by the Trustees to another location in Massachusetts. The Trust may
maintain other offices as the Trustees may from time to time determine. The
principal place of business of the Trust may be, but need not be, the same as
the registered office. The address of the registered office may be changed from
time to time by the Board of Trustees.
SECTION 9.2 OTHER OFFICES. The Trust may have additional offices and
places of business in such places, within or without the Commonwealth of
Massachusetts, the Commonwealth of Pennsylvania or the State of Colorado, as
the Board of Trustees may designate or as the business of the Trust may
require.
SECTION 9.3 SEAL. The Trust may have a seal which shall have inscribed
thereon the name of the Trust, the year of organization, and the words "Seal"
or such inscription as the Board of Trustees may determine. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed, or in any
manner reproduced.
SECTION 9.4 FISCAL YEAR. The fiscal year of the Trust shall end on the
30th day of September in each year.
SECTION 9.5 AMENDMENT OF BYLAWS. These bylaws may be amended or
repealed, and new bylaws may be adopted, by the Board of Trustees, regardless
of whether the shareholders have previously adopted or approved the bylaw being
amended or repealed, except where the power to repeal, adopt or amend a bylaw
on any subject is expressly committed to the shareholders by the Massachusetts
Business Trust Act, as it may hereafter be amended, and subject always to the
power of the shareholders to change any action taken by the board. Any change
in the bylaws shall take effect when adopted unless otherwise provided in the
resolution effecting the change.
17
<PAGE> 1
Exhibit 5
ADVISORY CONTRACT
THIS AGREEMENT made this 20th day of December, 1996, by and between
JORDAN AMERICAN HOLDINGS, INC., d/b/a EQUITY ASSETS MANAGEMENT, a Florida
corporation, (hereinafter referred to as the "Adviser"), and IMPACT MANAGEMENT
INVESTMENT TRUST. a Massachusetts business trust (hereinafter referred to as
the "Trust").
WHEREAS, the Trust is an open-end management investment company as
that term is defined in the Investment Company Act of 1940, as amended, and is
registered as such with the U.S. Securities and Exchange Commission; and
WHEREAS, the Adviser is in the business of rendering investment
advisory, statistical and research services, and is registered as an investment
adviser with the U.S. Securities and Exchange Commission under the Investment
Adviser's Act of 1940, as amended; and
WHEREAS, the parties desire to provide for continuing services by the
Adviser to the Trust pursuant to the terms and conditions hereinafter set
forth,
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. The Trust hereby retains and appoints the Adviser as its investment
adviser and portfolio manager to render research, statistical and advisory
services to the Trust, and to supervise the investments of the Trust for the
period and upon the terms herein set forth, subject to the direction and
control of the Board of Trustees of the Trust. The Advisor accepts such
employment and agrees during such period to render the services and to assume
the obligation herein set forth for the compensation herein provided.
2. The Adviser in its supervision of the investments of the Trust will
be guided by the Trust's fundamental investment policies and the provisions and
restrictions contained in the Declaration of Trust and By-Laws of the Trust as
set forth in the Trust's registration statement, and exhibits thereto, as may
be filed with the U.S. Securities and Exchange Commission (the "Commission"),
all subject to the applicable provisions of the Investment Company Act of 1940,
as amended (the "Act").
3. The Trust will pay and is solely responsible for its own expenses
including, without limitation, interest charges, taxes, costs of purchasing and
selling
<PAGE> 2
securities for its portfolio, rent expenses of redemption of shares, auditing
and legal expenses; expenses attributable to printing prospectuses Trustees'
fees and expenses necessarily incurred by a Trustee in attendance at Trustees'
meeting; expenses of administrative personnel and administrative series,
custodian fees; fees of transfer agents, registrar and dividend disbursing
agents; the cost of stock certificates and corporate reports; all other
printing expenses; costs in connection with Board of Trustee's meetings and the
annual or special meetings of shareholders, including proxy material
preparation and distribution, filing fees, dues, insurance premiums,
miscellaneous management and operating expenses and expenses of an
extraordinary and nonrecurring nature.
In no event shall the Adviser be responsible for the payment or
reimbursement of any Trust expense of any king what-so-ever.
4. Trust Management is solely responsible for the day-to-day
operations of the Trust, maintaining compliance with the Securities Act of
1933, the Investment Company Act of 1940, Section 851 of the Internal Revenue
Code of 1986, as amended, and any law or regulation of any governmental agency
having jurisdiction over the Trust. The Adviser shall be held harmless and the
Trust will indemnify the Adviser for any fines or damages that may be levied or
charged to the Adviser and for any expenses incurred by the Adviser, including
but not limited to legal fees, that may arise as a result of any violation or
error committed by Trust Management to any party.
5. Subject to the provision of Paragraph 7 hereof, the Trust agrees to
pay to the Adviser for its services rendered during the preceding month
thereunder on the first business day each month during the term of the
Agreement a cash fee in an amount determined by applying the following monthly
rates to the average daily net asset value of the Trust during the preceding
month, determined in the manner used for the determination of the offering
price of the Trust's shares:
<TABLE>
<CAPTION>
Equivalent Average Daily
Monthly Rate Annual Rate Net Asset Values
- ------------ ----------- ----------------
<S> <C> <C>
1/12 of 2.25% 2.25% On All Assets
</TABLE>
6. The term of this Agreement shall begin on the date first above
written and shall continue in effect for three (3) years from that date and
from year-to-year thereafter, subject to the provisions for termination and all
of the other terms and conditions hereof, if; (a) such continuation shall be
specifically approved at least annually by the vote of a majority of the
Trustees who are not parties to such contract or interested persons of any such
party to such contract (other than as Trustees of the Trust) cast in person at
a meeting called for that purpose, or by a vote of the majority of
2
<PAGE> 3
the outstanding voting securities of the Trust, and (b) the Adviser shall not
have notified the Trust in writing at least sixty (60) days prior to the
anniversary date of this Agreement in any year hereafter that it does not
desire such continuation.
7. Notwithstanding anything to the contrary herein, the Agreement may
be terminated at any time, without the payment of any penalty, by the Trustees
of the Trust or by a vote of a majority of the outstanding voting securities of
the Trust on sixty (60) days written notice to the Adviser.
8. This Agreement shall automatically terminate in the event of its
assignment, the term "assignment" for this purpose having the meaning defined
in Section 2(a)(4) of the 1940 Act.
9. The Adviser may employ or contract with such other person or
persons, corporation or corporations at its own cost and expense as it shall
determine in order to assist it in carrying out this Agreement; provided,
however, that to the extent that any such employment or contract constitutes
such other person or persons, corporation or corporations to be an investment
adviser to the Trust within the meaning of the 1940 Act, such employment or
contracts shall be subject to the approval of the Trust's shareholders in the
manner provided by such Act, prior to its effectiveness.
10. The adviser shall not be liable to the Trust for anything done or
omitted by it, except acts or omissions involving willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties imposed on it by
this Agreement.
11. The services of the Adviser herein provided are not to be deemed
exclusive and, so long as its services hereunder shall not be impaired thereby,
should the Adviser so desire, it may sponsor, promote, and provide investment
advisory and management series to one or more investment companies other than
the Trust.
12. This Agreement may be amended at any time by agreement of the
parties, provided that the amendment shall be approved by the vote of a
majority of Trustees of the Trust, including a majority of Trustees who are not
parties to this Agreement or interested persons of any such party to this
Agreement (other than as Trustees of the Trust) cast in person at a meeting
called for that purpose.
3
<PAGE> 4
IN WITNESS WHEREOF, the parties have caused this Investment Advisory
Contract to be executed on their behalf by their duly authorized officers and
their corporate seals to be affixed hereto as of the date first above written.
The Adviser: The Trust:
JORDAN AMERICAN HOLDINGS, INC. IMPACT MANAGEMENT
INVESTMENT TRUST
By: /s/CHARLES R. CLARK By: /s/RONALD A. STILLER
-------------------- ---------------------
Charles R. Clark Ronald A. Stiller
4
<PAGE> 1
Exhibit 6
UNDERWRITING AGREEMENT
AGREEMENT made as of this 20th day of December, 1996, between IMPACT
MANAGEMENT INVESTMENT TRUST, INC., a Massachusetts Business Trust (the
"Trust"), and MANAGEMENT SECURITIES, INC., a Florida corporation (the
"Underwriter").
1. The Underwriter will use its best efforts to find purchasers for
and the Trust will sell, issue and deliver from time to time such purchasers,
such part of the authorized shares of capital stock of the Trust remaining
unissued as from time to time shall be effectively registered under the
Securities Act of 1933, as amended (the "33 Act"), at prices determined as
hereinafter provided and on the terms hereinafter set forth, all subject to
applicable Federal and State laws and regulations and to the charter of the
Trust.
2. The Underwriter shall present all orders received by it for shares
of capital stock of the Trust to the Trust by telegraphic or written purchase
orders and each such order shall be subject to the acceptance or rejection by
the Trust in its sole discretion.
2.1 Notwithstanding any other provision hereof, whenever in
the judgment of the President or a Vice President and the Treasurer or
Secretary of the Trust such action is warranted by market, economic or
political conditions or by abnormal circumstances of any kind, the Trust may
suspend the offer of shares in effect and may, without liability under the
provisions of this Agreement, decline to accept or confirm any orders or make
any sales of shares or capital stock under this Agreement until such time as
the Trust shall deem it advisable to resume the offering of such shares,
provided that as soon as practicable after the taking of any such action a
special meeting of the Board of Directors shall be called to be held as soon as
practicable thereafter to determine whether or not such action shall then
continue to be effective, and the period during, or the circumstance under,
which such action shall continue or cease to be effective. During any period
during which the offer of shares shall be suspended or the Trust shall decline
to accept or confirm any such orders or make any such sales, the Trust shall be
under no obligation to confirm or accept any such orders or make any such sale
at any price.
2.2 The Trust will use its best efforts to keep effectively
registered under the 33 Act for sale as herein contemplated such shares of its
capital stock as the Underwriter shall reasonably request and as the Securities
and Exchange Commission (the "SEC") shall permit to be so registered.
<PAGE> 2
3. Sales by the Underwriter shall be made as agent for the Trust and
all such sales be made to or through qualified dealers or others in such
manner, not inconsistent with the provisions hereof and the then effective
registration statement of the Trust under the 33 Act, (and related prospectus),
as the Underwriter may determine from time to time.
3.1 The Underwriter may form a group of underwriters to
participate with it in performing under this Agreement, and the composition of
such group may be changed from time to time. If such group shall be formed, the
Underwriter shall remain the principal underwriter, and be the representative
of any other underwriters with the terms and conditions of this Agreement. It
is understood and agreed that the Impact Financial Networks, Inc., under
agreement with the Underwriter will be primarily responsible for the
preparation and supply of sales literature to all underwriters. The Underwriter
will be paid a fee by the other underwriters for managing the underwriting
group and providing sales literature, payable out of the premium above net
asset value at which underwriters are permitted to sell shares of capital stock
of the Trust. The Trust reserves the right to engage and contract with other
principal underwriters for the sale and distribution of its shares.
3.2 The Underwriter will not make, or authorize any dealers
or others to make, (a) any short sales of shares or (b) any sales of such
shares to any officers, directors or partners of the Trust or of the
Underwriters or of any corporation or firm furnishing investment advisory,
managerial, or supervisory services to the Trust unless such sales are at the
price then available to the public and unless the Underwriter shall be advised
that the purchases are for investment and that such purchasers will advise the
Underwriter of any sales of shares so purchased made less than two months after
the date of purchase and the Underwriter will promptly advise the Trust of all
such sales of shares, made less than two months after the purchase, or which it
is advised. The Underwriter shall order shares of capital stock of the Trust
from the Trust only to the extent that it shall have received purchase orders
therefor.
4. All shares of capital stock offered for sale or sold by the
Underwriter shall be so offered or sold at a price per share (the "Offering
Price") equal to the net asset value per share (determined as authorized from
time to time by the Board of Directors of the Trust pursuant to its charter),
plus a premium of not more than 4.75% of the offering price thereof. If the
Offering Price per share so determined is not an exact multiple of one cent it
shall be adjusted to the nearest cent. In all cases the Offering Price per
share for the size of purchase shall be strictly in accordance with the
Offering Price described in the currently effective prospectus of the Trust.
4.1 For the purpose of determining the offering price, the
net asset value of any such shares shall be so determined in accordance with
the then current offering prospectus. The Trust, or its authorized agent, will
promptly furnish to the
<PAGE> 3
Underwriter a statement of the Offering Price as often as such net asset value
is determined and such statement shall at the request of the Underwriter show
the basis of computation of the Offering Price.
4.2 Orders presented by the Underwriter for shares, if
accepted by the Trust, shall be accepted and confirmed by it or its duly
authorized agent at the Offering Price in effect at the time of its receipt of
such order at its principal office.
4.3 The Underwriter will not in any event (a) offer for sale
or sell shares of capital stock in excess of the number then effectively
registered under the 33 Act, and available for sale, or (b) offer for sale or
sell any shares in violation of any applicable Federal or State law, rule or
regulation.
4.4 The public offering price may be reduced within the
limits of the above-mentioned premium in the case of single sales (as defined
in the prospectus forming part of such registration statement at the time when
the same becomes effective) in amounts equal to or exceeding $100,000 on such
basis or bases as may from time to time be satisfactory to the Trust and set
forth in its then current offering prospectus.
4.5 Out of the above-mentioned premium, the Underwriter shall
allow commissions or concessions to dealers and may allow them to others in its
discretion in such amounts as the Underwriter shall determine from time to
time; except as may be otherwise determined by the Underwriter and the Trust
from time to time, such commissions or concessions shall be uniform to all
dealers.
4.6 The Underwriter will require all dealers to conform to
the provisions hereof and the registration statement (and related prospectus)
at the time in effect under the 33 Act with respect to the public offering
price of the shares, and no dealer shall in any event withhold the placing of
orders for the shares so that dealers shall profit as a result of such
withholding by a change in the net asset value of the shares from that used in
determining the price to the customer of such dealer or otherwise.
5. At or prior to the delivery by the Trust to or on the order of the
Underwriter of certificates for any share of capital stock, the Underwriter
will pay or cause to be paid to the Trust or to its order an amount equal to
the offering Price of such shares at which such order has been confirmed, less
the premium included therein as aforesaid which shall constitute the entire
sales load (including the entire compensation to the Underwriter and of any
dealer) other than incidental issuance of sale expenses to be borne by the
issuer. Delivery of certificates shall be made to or on the order of the
Underwriter as promptly as practicable after confirmation of its order thereof.
<PAGE> 4
Certificates shall be registered in such names and amounts as the Underwriter
may specify.
6. The Underwriter, except as hereinafter stated, will pay or cause to
be paid all expenses (other than expenses which one or more dealers may bear
pursuant to any agreement with the Underwriter) incident to the sale and
distribution of shares issued or sold hereunder, including, without limiting
the generality of the foregoing, (i) all expenses of preparing, printing and
distributing or disseminating any sales literature, advertising and selling
aids in connection with the offering of the shares for sale (except that such
expenses shall not include expenses incurred by the Trust in connection with
the preparation, printing, and distribution of prospectuses and of any report
or other communication to stockholders to the extent that such expenses are
necessarily incurred to effect compliance by the Trust with any Federal or
State law or to comply with the Articles of Incorporation or By-Laws of the
Trust and director's fees and expenses necessarily incurred by directors in
attendance at directors' meetings); (ii) expenses of advertising performed by
the Underwriter in connection with such offerings. No transfer taxes, if any,
which may be payable in connection with the issue or delivery of shares sold as
herein shall be borne by the Trust, and the Underwriter will indemnify and hold
the Trust harmless against liability for all such transfer taxes.
7. The Trust will execute any and all documents and furnish any and
all information which may be reasonably necessary in connection with the
qualification of its shares of capital stock in such states as the Underwriter
may reasonably request (it being understood that the Trust shall be required
without its consent to qualify to do business in any jurisdiction or to comply
with any requirement which in its opinion is unduly burdensome). The
Underwriter, at its own expense, will effect all qualifications as dealer or
broker or otherwise under all applicable state or Federal laws required in
order that the shares may be sold in as broad a territory as practicable.
8. The Trust will furnish to the Underwriter from time to time such
information with respect to its shares as the Underwriter may reasonably
request for use in connection with the sale of shares. The Underwriter will not
use or distribute or authorize the use, distribution or dissemination by its
dealers or others in connection with such sale of any literature, advertising
or selling aids in any form or through any medium, written or oral, without
prior written specific approval thereof by the Corporation.
9. Nothing herein contained shall limit the right of the Trust, in its
absolute discretion, to issue or sell shares of its capital stock for such
other considerations (whether in connection with the acquisition of assets or
shares or securities of another corporation or entity or with the merger or
consolidation of any other corporation into or with the Trust, or otherwise) as
and to the extent permitted by its charter and any applicable laws, or to issue
or sell any such shares directly to the shareholders of the
<PAGE> 5
Trust, upon such terms and conditions and for such consideration, if any, as
may be determined by the Board of Trustees, whether pursuant to the
distribution of subscription or purchase rights to such holders or by way of
dividends or otherwise.
10. At the request of the Trust, the Underwriter agrees to act as
agent for the Trust for the repurchase or redemption of shares of the Trust at
such prices as the Trust from time to time shall prescribe.
11. In selling or reacquiring shares, the Underwriter agrees to
conform to the requirements of all state and Federal laws relating to such sale
or reacquisition, as the case may be, and will indemnify and hold the Trust
harmless from any damage or expense on account of any wrongful act by the
Underwriter or any employee, representative or agent of the Underwriter. The
Underwriter will observe and be bound by all the provisions of the charter of
the Trust and any fundamental policies adopted by the Trust pursuant to the
Investment Company Act of 1940, as amended (the "40 Act"), notice of which has
been given to the Underwriter.
11.1 Neither the Underwriter, any dealer nor any other person
is authorized by the Trust to give any information or to make any
representation other than those contained (a) in the latest effective
registration statement (and related prospectus) filed with the SEC under the 33
Act as such registration statement (and prospectus) may be amended from time to
time, or (b) in any statement expressly authorized by the Trust for use in
connection with any sale or reacquisition of capital stock for the account of
the Trust.
12.1 The Underwriter will:
12.1(a) not, directly or indirectly (i) declare or pay any
dividends or distributions (other than dividends payable in its capital stock),
or (ii) use any part of its assets or property for the purchase, redemption or
other retirement of shares of its capital stock, or (iii) make any other
distribution or transfer of assets to its stockholders, unless in any such
case, after giving effect to such action, the excess of its assets over its
liabilities shall be at least $5,000;
12.2(b) at all times keep its assets (other than those, such
as office furniture and fixtures, equipment, records and the like required for
the operation of the business herein contemplated) in cash or invested in
readily marketable securities;
12.3(c) not incur any indebtedness on account of borrowing or
any other indebtedness except in the ordinary course of business in the
performance of its obligations under this Agreement.
<PAGE> 6
12.4 Determination required hereunder shall be made by the
independent public accountants of the Trust or of the Underwriter in accordance
with the sound accounting practice at such reasonable intervals as the Trust
may from time to time require.
13. This Agreement shall continue in effect until such time as there
remains no unsold balance of shares of capital stock effectively registered
under the 33 Act; provided, however, that (a) this Agreement shall continue in
effect for a period more than two years from the date hereof only so long as
such continuance is specifically approved at least annually by the Board of
Directors or a majority of the outstanding voting securities of the Trust, and
(b) either party hereto may terminate this Agreement on any date by giving the
other party at least six months prior written notice of such termination
specifying the date fixed therefor, and (c) without prejudice to any other
remedies, the Trust may terminate this Agreement at any time immediately upon
failure of fulfillment of any of the obligations of the Underwriter hereunder
or any of the conditions set forth in paragraph 12 hereof.
13.1 This Agreement shall automatically terminate in the
event of its assignment by the Underwriter, the term "assignment" having the
meaning defined in Section 2(a)(4) of the 40 Act.
14. Any notice under this Agreement shall be in writing addressed and
delivered by mail, postage prepaid, to the party to whom addressed at the
address given below, or at such other address as such party shall theretofore
have designated (by notice given to the other party as herein provided) in
writing for the receipt of such notice:
TO THE TRUST: Impact Management Investment Trust
1875 Ski Time Square Drive, Suite One
Steamboat Springs, CO 80482
TO THE UNDERWRITER: Management Securities, Inc.
1875 Ski Time Square Drive, Suite One
Steamboat Springs, CO 80482
IN WITNESS WHEREOF, the Trust and the Underwriter have each caused
this Agreement to be executed on its behalf by an officer thereunto duly
authorized on the day and year first above written.
Impact Management Investment Trust Management Securities, Inc.
- ---------------------------------- ---------------------------
By: /s/RONALD STILLER By: /s/CHARLES CLARK
------------------------------ ------------------------
Title: President Title: Principal
<PAGE> 1
EXHIBIT 8
FORM OF
CUSTODY AGREEMENT
BETWEEN
IMPACT MANAGEMENT INVESTMENT TRUST
AND
THE FIFTH THIRD BANK
<PAGE> 2
FORM OF
CUSTODY AGREEMENT
THIS AGREEMENT, is made as of _______________, 1997, by and between
IMPACT MANAGEMENT INVESTMENT TRUST, a business trust organized under the laws
of the State of Massachusetts (the "Trust"), and THE FIFTH THIRD BANK, a
banking company organized under the laws of the State of Ohio (the
"Custodian").
WITNESSETH:
WHEREAS, the Trust desires that the Securities and cash of each of the
investment portfolios and any additional portfolios of the Trust, as each are
or will be identified in Exhibit A hereto (such current investment portfolios
and any additional portfolios individually referred to herein as a "Fund" and
collectively as the "Funds"), be held and administered by the Custodian
pursuant to this Agreement; and
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Custodian represents that it is a bank having the
qualifications prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Trust and the Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1.1 "Authorized Person" means any Officer or other person duly
authorized by resolution of the Board of Trustees to give Oral Instructions and
Written Instructions on behalf of the Trust and named in Exhibit B hereto or in
such resolutions of the Board of Trustees, certified by an Officer, as may be
received by the Custodian from time to time.
1.2 "Board of Trustees" shall mean the Trustees from time to time
serving under the Trust's Agreement and Declaration of Trust, dated ,
19 , as from time to time amended.
1.3 "Book-Entry System" shall mean a federal book-entry system as
provided in Subpart O of Treasury Circular No. 300, 31 CFR 306, in Subpart B of
31 CFR Part 350, or in such book-entry regulations of federal agencies as are
substantially in the form of such Subpart O.
1.4 "Business Day" shall mean any day recognized as a settlement day
by The New York Stock Exchange, Inc. and any other day for which the Fund
computes the net asset value of the Fund.
1.5 "NASD" shall mean The National Association of Securities Dealers,
Inc.
<PAGE> 3
1.6 "Officer" shall mean the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer
of the Trust.
1.7 "Oral Instructions" shall mean instructions orally transmitted to
and accepted by the Custodian because such instructions are: (i) reasonably
believed by the Custodian to have been given by an Authorized Person, (ii)
recorded and kept among the records of the Custodian made in the ordinary
course of business and (iii) orally confirmed by the Custodian. The Trust shall
cause all Oral Instructions to be confirmed by Written Instructions. If such
Written Instructions confirming Oral Instructions are not received by the
Custodian prior to a transaction, it shall in no way affect the validity of the
transaction or the authorization thereof by the Trust. If Oral Instructions
vary from the Written Instructions which purport to confirm them, the Custodian
shall notify the Trust of such variance but such Oral Instructions will govern
unless the Custodian has not yet acted.
1.8 "Custody Account" shall mean any account in the name of the Trust,
which is provided for in Section 3.2 below.
1.9 "Proper Instructions" shall mean Oral Instructions or Written
Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by both parties.
1.10 "Securities Depository" shall mean The Participants Trust Company
or The Depository Trust Company and (provided that Custodian shall have
received a copy of a resolution of the Board of Trustees, certified by an
Officer, specifically approving the use of such clearing agency as a depository
for the Trust) any other clearing agency registered with the Securities and
Exchange Commission under Section 17A of the Securities and Exchange Act of
1934 (the "1934 Act"), which acts as a system for the central handling of
Securities where all Securities of any particular class or series of an issuer
deposited within the system are treated as fungible and may be transferred or
pledged by bookkeeping entry without physical delivery of the Securities.
1.11 "Securities" shall include, without limitation, common and
preferred stocks, bonds, call options, put options, debentures, notes, bank
certificates of deposit, bankers' acceptances, mortgage-backed securities,
other money market instruments or other obligations, and any certificates,
receipts, warrants or other instruments or documents representing rights to
receive, purchase or subscribe for the same, or evidencing or representing any
other rights or interests therein, or any similar property or assets that the
Custodian has the facilities to clear and to service.
1.12 "Shares" shall mean the units of beneficial interest issued by
the Trust.
1.13 "Written Instructions" shall mean (i) written communications
actually received by the Custodian and signed by one or more persons as the
Board of Trustees shall have from time to time authorized, or (ii)
communications by telex or any other such system from a person or persons
reasonably believed by the Custodian to be Authorized, or (iii) communications
transmitted electronically through the Institutional Delivery System (IDS), or
any other similar electronic instruction system acceptable to Custodian and
approved by resolutions of the Board of Trustees, a copy of which, certified by
an Officer, shall have been delivered to the Custodian.
-2-
<PAGE> 4
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 Appointment. The Trust hereby constitutes and appoints the
Custodian as custodian of all Securities and cash owned by or in the possession
of the Trust at any time during the period of this Agreement, provided that
such Securities or cash at all times shall be and remain the property of the
Trust.
2.2 Acceptance. The Custodian hereby accepts appointment as such
custodian and agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All Securities and non-cash property held by the
Custodian for the account of the Fund, except Securities maintained in a
Securities Depository or Book-Entry System, shall be physically segregated from
other Securities and non-cash property in the possession of the Custodian and
shall be identified as subject to this Agreement.
3.2 Custody Account. The Custodian shall open and maintain in its
trust department a custody account in the name of each Fund, subject only to
draft or order of the Custodian, in which the Custodian shall enter and carry
all Securities, cash and other assets of the Fund which are delivered to it.
3.3 Appointment of Agents. In its discretion, the Custodian may
appoint, and at any time remove, any domestic bank or trust company, which has
been approved by the Board of Trustees and is qualified to act as a custodian
under the 1940 Act, as sub-custodian to hold Securities and cash of the Funds
and to carry out such other provisions of this Agreement as it may determine,
and may also open and maintain one or more banking accounts with such a bank or
trust company (any such accounts to be in the name of the Custodian and subject
only to its draft or order), provided, however, that the appointment of any
such agent shall not relieve the Custodian of any of its obligations or
liabilities under this Agreement.
3.4 Delivery of Assets to Custodian. The Fund shall deliver, or cause
to be delivered, to the Custodian all of the Fund's Securities, cash and other
assets, including (a) all payments of income, payments of principal and capital
distributions received by the Fund with respect to such Securities, cash or
other assets owned by the Fund at any time during the period of this Agreement,
and (b) all cash received by the Fund for the issuance, at any time during such
period, of Shares. The Custodian shall not be responsible for such Securities,
cash or other assets until actually received by it.
3.5 Securities Depositories and Book-Entry Systems. The Custodian may
deposit and/or maintain Securities of the Funds in a Securities Depository or
in a Book-Entry System, subject to the following provisions:
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(a) Prior to a deposit of Securities of the Funds in any
Securities Depository or Book-Entry System, the Fund shall
deliver to the Custodian a resolution of the Board of
Trustees, certified by an Officer, authorizing and
instructing the Custodian on an on-going basis to deposit in
such Securities Depository or Book-Entry System all
Securities eligible for deposit therein and to make use of
such Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance
hereunder, including, without limitation, in connection with
settlements of purchases and sales of Securities, loans of
Securities, and deliveries and returns of collateral
consisting of Securities. So long as such Securities
Depository or Book-Entry System shall continue to be employed
for the deposit of Securities of the Funds, the Trust shall
annually re-adopt such resolution and deliver a copy thereof,
certified by an Officer, to the Custodian.
(b) Securities of the Fund kept in a Book-Entry System or
Securities Depository shall be kept in an account
("Depository Account") of the Custodian in such Book-Entry
System or Securities Depository which includes only assets
held by the Custodian as a fiduciary, custodian or otherwise
for customers.
(c) The records of the Custodian and the Custodian's account on
the books of the Book-Entry System and Securities Depository
as the case may be, with respect to Securities of a Fund
maintained in a Book-Entry System or Securities Depository
shall, by book-entry, or otherwise identify such Securities
as belonging to the Fund.
(d) If Securities purchases by the Fund are to be held in a
Book-Entry System or Securities Depository, the Custodian
shall pay for such Securities upon (i) receipt of advice from
the Book-Entry System or Securities Depository that such
Securities have been transferred to the Depository Account,
and (ii) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the
account of the Fund. If Securities sold by the Fund are held
in a Book-Entry System or Securities Depository, the
Custodian shall transfer such Securities upon (i) receipt of
advice from the Book-Entry System or Securities depository
that payment for such Securities has been transferred to the
Depository Account, and (ii) the making of an entry on the
records of the Custodian to reflect such transfer and payment
for the account of the Fund.
(e) Upon request, the Custodian shall provide the Fund with
copies of any report (obtained by the Custodian from a
Book-Entry System or Securities Depository in which
Securities of the Fund is kept) on the internal accounting
controls and procedures for safeguarding Securities deposited
in such Book-Entry System or Securities Depository.
(f) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall be liable to the Trust for any loss or
damage to the Trust resulting (i) from the use of a
Book-Entry System or Securities Depository by reason of any
negligence or willful misconduct on the part of Custodian or
any sub-custodian appointed pursuant to Section 3.3 above or
any of its or their
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employees, or (ii) from failure of Custodian or any such
sub-custodian to enforce effectively such rights as it may
have against a Book-Entry System or Securities Depository. At
its election, the Trust shall be subrogated to the rights of
the Custodian with respect to any claim against a Book-Entry
System or Securities Depository or any other person for any
loss or damage to the Funds arising from the use of such
Book-Entry System or Securities Depository, if and to the
extent that the Trust has been made whole for any such loss
or damage.
3.6 Disbursement of Moneys from Custody Accounts. Upon receipt of
Proper Instructions, the Custodian shall disburse moneys from a Fund Custody
Account but only in the following cases:
(a) For the purchase of Securities for the Fund but only upon
compliance with Section 4.1 of this Agreement and only (i) in
the case of Securities (other than options on Securities,
futures contracts and options on futures contracts), against
the delivery to the Custodian (or any sub-custodian appointed
pursuant to Section 3.3 above) of such Securities registered
as provided in Section 3.9 below in proper form for transfer,
or if the purchase of such Securities is effected through a
Book-Entry System or Securities Depository, in accordance
with the conditions set forth in Section 3.5 above; (ii) in
the case of options on Securities, against delivery to the
Custodian (or such sub-custodian) of such receipts as are
required by the customs prevailing among dealers in such
options; (iii) in the case of futures contracts and options
on futures contracts, against delivery to the Custodian (or
such sub-custodian) of evidence of title thereto in favor of
the Trust or any nominee referred to in Section 3.9 below;
and (iv) in the case of repurchase or reverse repurchase
agreements entered into between the Trust and a bank which is
a member of the Federal Reserve System or between the Trust
and a primary dealer in U.S. Government securities, against
delivery of the purchased Securities either in certificate
form or through an entry crediting the Custodian's account at
a Book-Entry System or Securities Depository for the account
of the Fund with such Securities;
(b) In connection with the conversion, exchange or surrender, as
set forth in Section 3.7(f) below, of Securities owned by the
Fund;
(c) For the payment of any dividends or capital gain
distributions declared by the Fund;
(d) In payment of the redemption price of Shares as provided in
Section 5.1 below;
(e) For the payment of any expense or liability incurred by the
Trust, including but not limited to the following payments
for the account of a Fund: interest; taxes; administration,
investment management, investment advisory, accounting,
auditing, transfer agent, custodian, trustee and legal fees;
and other operating expenses of a Fund; in all cases, whether
or not such expenses are to be in whole or in part
capitalized or treated as deferred expenses;
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<PAGE> 7
(f) For transfer in accordance with the provisions of any
agreement among the Trust, the Custodian and a broker-dealer
registered under the 1934 Act and a member of the NASD,
relating to compliance with rules of The Options Clearing
Corporation and of any registered national securities
exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with
transactions by the Trust;
(g) For transfer in accordance with the provisions of any
agreement among the Trust, the Custodian, and a futures
commission merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any contract market (or any
similar organization or organizations) regarding account
deposits in connection with transactions by the Trust;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution
(including the Custodian), which deposit or account has a
term of one year or less; and
(i) For any other proper purposes, but only upon receipt, in
addition to Proper Instructions, of a copy of a resolution of
the Board of Trustees, certified by an Officer, specifying
the amount and purpose of such payment, declaring such
purpose to be a proper corporate purpose, and naming the
person or persons to whom such payment is to be made.
3.7 Delivery of Securities from Fund Custody Accounts. Upon receipt of
Proper Instructions, the Custodian shall release and deliver Securities from a
Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of a Fund but
only against receipt of payment therefor in cash, by
certified or cashiers check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of
Section 3.5 above;
(c) To an Offeror's depository agent in connection with tender or
other similar offers for Securities of a Fund; provided that,
in any such case, the cash or other consideration is to be
delivered to the Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the
name of the Trust, the Custodian or any sub-custodian
appointed pursuant to Section 3.3 above, or of any nominee or
nominees of any of the foregoing, or (ii) for exchange for a
different number of certificates or other evidence
representing the same aggregate face amount or number of
units; provided that, in any such case, the new Securities
are to be delivered to the Custodian;
(e) To the broker selling Securities, for examination in
accordance with the "street delivery" custom;
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<PAGE> 8
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the issuer of such Securities, or pursuant to
provisions for conversion contained in such Securities, or
pursuant to any deposit agreement, including surrender or
receipt of underlying Securities in connection with the
issuance or cancellation of depository receipts; provided
that, in any such case, the new Securities and cash, if any,
are to be delivered to the Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase
or reverse repurchase agreement entered into by a Fund;
(h) In the case of warrants, rights or similar Securities, upon
the exercise thereof, provided that, in any such case, the
new Securities and cash, if any, are to be delivered to the
Custodian;
(i) For delivery in connection with any loans of Securities of a
Fund, but only against receipt of such collateral as the
Trust shall have specified to the Custodian in Proper
Instructions;
(j) For delivery as security in connection with any borrowings by
the Trust on behalf of a Fund requiring a pledge of assets by
such Fund, but only against receipt by the Custodian of the
amounts borrowed;
(k) Pursuant to any authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Trust or a Fund;
(l) For delivery in accordance with the provisions of any
agreement among the Trust, the Custodian and a broker-dealer
registered under the 1934 Act and a member of the NASD,
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities
exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with
transactions by the Trust on behalf of a Fund;
(m) For delivery in accordance with the provisions of any
agreement among the Trust on behalf of a Fund, the Custodian,
and a futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with the rules
of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or
organizations) regarding account deposits in connection with
transactions by the Trust on behalf of a Fund; or
(n) For any other proper corporate purposes, but only upon
receipt, in addition to Proper Instructions, of a copy of a
resolution of the Board of Trustees, certified by an Officer,
specifying the Securities to be delivered, setting forth the
purpose for which such delivery is to be made, declaring such
purpose to be a proper corporate purpose, and naming the
person or persons to whom delivery of such Securities shall
be made.
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3.8 Actions Not Requiring Proper Instructions. Unless otherwise
instructed by the Trust, the Custodian shall with respect to all Securities
held for a Fund;
(a) Subject to Section 7.4 below, collect on a timely basis all
income and other payments to which the Trust is entitled
either by law or pursuant to custom in the securities
business;
(b) Present for payment and, subject to Section 7.4 below,
collect on a timely basis the amount payable upon all
Securities which may mature or be called, redeemed, or
retired, or otherwise become payable;
(c) Endorse for collection, in the name of the Trust, checks,
drafts and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form
for Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or
certificates of ownership under the federal income tax laws
or the laws or regulations of any other taxing authority now
or hereafter in effect, and prepare and submit reports to the
Internal Revenue Service ("IRS") and to the Trust at such
time, in such manner and containing such information as is
prescribed by the IRS;
(f) Hold for a Fund, either directly or, with respect to
Securities held therein, through a Book-Entry System or
Securities Depository, all rights and similar securities
issued with respect to Securities of the Fund; and
(g) In general, and except as otherwise directed in Proper
Instructions, attend to all non-discretionary details in
connection with sale, exchange, substitution, purchase,
transfer and other dealings with Securities and assets of the
Fund.
3.9 Registration and Transfer of Securities. All Securities held for a
Fund that are issued or issuable only in bearer form shall be held by the
Custodian in that form, provided that any such Securities shall be held in a
Book-Entry System for the account of the Trust on behalf of a Fund, if eligible
therefor. All other Securities held for a Fund may be registered in the name of
the Trust on behalf of such Fund, the Custodian, or any sub-custodian appointed
pursuant to Section 3.3 above, or in the name of any nominee of any of them, or
in the name of a Book-Entry System, Securities Depository or any nominee of
either thereof; provided, however, that such Securities are held specifically
for the account of the Trust on behalf of a Fund. The Trust shall furnish to
the Custodian appropriate instruments to enable the Custodian to hold or
deliver in proper form for transfer, or to register in the name of any of the
nominees hereinabove referred to or in the name of a Book-Entry System or
Securities Depository, any Securities registered in the name of a Fund.
3.10 Records. (a) The Custodian shall maintain, by Fund, complete and
accurate records with respect to Securities, cash or other property held for
the Trust, including (i) journals or other records of original entry containing
an itemized daily record
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<PAGE> 10
in detail of all receipts and deliveries of Securities and all receipts and
disbursements of cash; (ii) ledgers (or other records) reflecting (A)
Securities in transfer, (B) Securities in physical possession, (C) monies and
Securities borrowed and monies and Securities loaned (together with a record of
the collateral therefor and substitutions of such collateral), (D) dividends
and interest received, and (E) dividends receivable and interest accrued; and
(iii) cancelled checks and bank records related thereto. The Custodian shall
keep such other books and records of the Trust as the Trust shall reasonably
request, or as may be required by the 1990 Act, including, but not limited to
Section 3.1 and Rule 31a-1 and 31a-2 promulgated thereunder.
(b) All such books and records maintained by the Custodian shall (i)
be maintained in a form acceptable to the Trust and in compliance with rules
and regulations of the Securities and Exchange Commission, (ii) be the property
of the Trust and at all times during the regular business hours of the
Custodian be made available upon request for inspection by duly authorized
officers, employees or agents of the Trust and employees or agents of the
Securities and Exchange Commission, and (iii) if required to be maintained by
Rule 31a-1 under the 1940 Act, be preserved for the periods prescribed in Rule
31a-2 under the 1940 Act.
3.11 Fund Reports by Custodian. The Custodian shall furnish the Trust
with a daily activity statement by Fund and a summary of all transfers to or
from the Custody Account on the day following such transfers. At least monthly
and from time to time, the Custodian shall furnish the Trust with a detailed
statement, by Fund, of the Securities and moneys held for the Trust under this
Agreement.
3.12 Other Reports by Custodian. The Custodian shall provide the Trust
with such reports, as the Trust may reasonably request from time to time, on
the internal accounting controls and procedures for safeguarding Securities,
which are employed by the Custodian or any sub-custodian appointed pursuant to
Section 3.3 above.
3.13 Proxies and Other Materials. The Custodian shall cause all
proxies if any, relating to Securities which are not registered in the name of
a Fund, to be promptly executed by the registered holder of such Securities,
without indication of the manner in which such proxies are to be voted, and
shall include all other proxy materials, if any, promptly deliver to the Trust
such proxies, all proxy soliciting materials, which should include all other
proxy materials, if any, and all notices to such Securities.
3.14 Information on Corporate Actions. Custodian will promptly notify
the Trust of corporate actions, limited to those Securities registered in
nominee name and to those Securities held at a Depository or sub-Custodian
acting as agent for Custodian. Custodian will be responsible only if the notice
of such corporate actions is published by the Financial Daily Card Service,
J.J. Kenny Called Bond Service, DTC, or received by first class mail from the
agent. For market announcements not yet received and distributed by
Custodian's services, Trust will inform its custody representative with
appropriate instructions. Custodian will, upon receipt of Trusts's response
within the required deadline, affect such action for receipt or payment for the
Trust. For those responses received after the deadline, Custodian will affect
such action for receipt or payment, subject to the limitations of the agent(s)
affecting such actions. Custodian will promptly notify Trust for put options
only if the notice is received by first class mail from the agent. The Trust
will provide or cause to be provided to Custodian with all relevant
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information contained in the prospectus for any security which has unique
put/option provisions and provide Custodian with specific tender instructions
at least ten business days prior to the beginning date of the tender period.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
4.1 Purchase of Securities. Promptly upon each purchase of Securities
for the Trust, Written Instructions shall be delivered to the Custodian,
specifying (a) the name of the issuer or writer of such Securities, and the
title or other description thereof, (b) the number of shares, principal amount
(and accrued interest, if any) or other units purchased, (c) the date of
purchase and settlement, (d) the purchase price per unit, (e) the total amount
payable upon such purchase, and (f) the name of the person to whom such amount
is payable. The Custodian shall upon receipt of such Securities purchased by a
Fund pay out of the moneys held for the account of such Fund the total amount
specified in such Written Instructions to the person named therein. The
Custodian shall not be under any obligation to pay out moneys to cover the cost
of a purchase of Securities for a Fund, if in the relevant Custody Account
there is insufficient cash available to the Fund for which such purchase was
made.
4.2 Liability for Payment in Advance of Receipt of Securities
Purchased. In any and every case where payment for the purchase of Securities
for a Fund is made by the Custodian in advance of receipt for the account of
the Fund of the Securities purchased but in the absence of specific Written or
Oral Instructions to so pay in advance, the Custodian shall be liable to the
Fund for such Securities to the same extent as if the Securities had been
received by the Custodian.
4.3 Sale of Securities. Promptly upon each sale of Securities by a
Fund, Written Instructions shall be delivered to the Custodian, specifying (a)
the name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale and settlement (d)
the sale price per unit, (e) the total amount payable upon such sale, and (f)
the person to whom such Securities are to be delivered. Upon receipt of the
total amount payable to the Trust as specified in such Written Instructions,
the Custodian shall deliver such Securities to the person specified in such
Written Instructions. Subject to the foregoing, the Custodian may accept
payment in such form as shall be satisfactory to it, and may deliver Securities
and arrange for payment in accordance with the customs prevailing among dealers
in Securities.
4.4 Delivery of Securities Sold. Notwithstanding Section 4.3 above or
any other provision of this Agreement, the Custodian, when instructed to
deliver Securities against payment, shall be entitled, if in accordance with
generally accepted market practice, to deliver such Securities prior to actual
receipt of final payment therefor. In any such case, the Trust shall bear the
risk that final payment for such Securities may not be made or that such
Securities may be returned or otherwise held or disposed of by or through the
person to whom they were delivered, and the Custodian shall have no liability
for any of the foregoing.
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4.5 Payment for Securities Sold, etc. In its sole discretion and from
time to time, the Custodian may credit the relevant Custody Account, prior to
actual receipt of final payment thereof, with (i) proceeds from the sale of
Securities which it has been instructed to deliver against payment, (ii)
proceeds from the redemption of Securities or other assets of the Trust, and
(iii) income from cash, Securities or other assets of the Trust. Any such
credit shall be conditional upon actual receipt by Custodian of final payment
and may be reversed if final payment is not actually received in full. The
Custodian may, in its sole discretion and from time to time, permit the Trust
to use funds so credited to its Custody Account in anticipation of actual
receipt of final payment. Any such funds shall be repayable immediately upon
demand made by the Custodian at any time prior to the actual receipt of all
final payments in anticipation of which funds were credited to the Custody
Account.
4.6 Advances by Custodian for Settlement. The Custodian may, in its
sole discretion and from time to time, advance funds to the Trust to facilitate
the settlement of a Trust transactions on behalf of a Fund in its Custody
Account. Any such advance shall be repayable immediately upon demand made by
Custodian.
ARTICLE V
REDEMPTION OF TRUST SHARES
5.1 Transfer of Funds. From such funds as may be available for the
purpose in the relevant Custody Account, and upon receipt of Proper
Instructions specifying that the funds are required to redeem Shares of a Fund,
the Custodian shall wire each amount specified in such Proper Instructions to
or through such bank as the Trust may designate with respect to such amount in
such Proper Instructions.
5.2 No Duty Regarding Paying Banks. The Custodian shall not be under
any obligation to effect payment or distribution by any bank designated in
Proper Instructions given pursuant to Section 5.1 above of any amount paid by
the Custodian to such bank in accordance with such Proper Instructions.
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of each Fund, into
which account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account,
(a) in accordance with the provisions of any agreement among the
Trust, the Custodian and a broker-dealer registered under the
1934 Act and a member of the NASD (or any futures commission
merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities
exchange (or the Commodity Futures Trading commission or any
registered contract market), or of any similar organization
or organizations, regarding escrow or other arrangements in
connection with transactions by the Trust,
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(b) for purposes of segregating cash or Securities in connection
with securities options purchased or written by a Fund or in
connection with financial futures contracts (or options
thereon) purchased or sold by a Fund,
(c) which constitute collateral for loans of Securities made by a
Fund,
(d) for purposes of compliance by the Trust with requirements
under the 1940 Act for the maintenance of segregated accounts
by registered investment companies in connection with reverse
repurchase agreements and when-issued, delayed delivery and
firm commitment transactions, and
(e) for other proper corporate purposes, but only upon receipt
of, in addition to Proper Instructions, a certified copy of a
resolution of the Board of Trustees, certified by an Officer,
setting forth the purpose or purposes of such segregated
account and declaring such purposes to be proper corporate
purposes.
ARTICLE VII
CONCERNING THE CUSTODIAN
7.1 Standard of Care. The Custodian shall be held to the exercise of
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Trust for any loss, damage, cost, expense
(including attorneys' fees and disbursements), liability or claim unless such
loss, damages, cost, expense, liability or claim arises from negligence, bad
faith or willful misconduct on its part or on the part of any sub-custodian
appointed pursuant to Section 3.3 above. The Custodian's cumulative liability
within a calendar year shall be limited with respect to the Trust or any party
claiming by, through or on behalf of the Trust for the initial and all
subsequent renewal terms of this Agreement, to the lessor amount of (a) the
actual damages sustained by the Trust, (actual damages for uninvested funds
shall be the overnight Feds fund rate), or (b) to an amount not to exceed
one-half of the net fees paid to the Custodian within the prior three calendar
months. The Custodian shall be entitled to rely on and may act upon advice of
counsel on all matters, and shall be without liability for any action
reasonably taken or omitted pursuant to such advice. The Custodian shall
promptly notify the Trust of any action taken or omitted by the Custodian
pursuant to advice of counsel. The Custodian shall not be under any obligation
at any time to ascertain whether the Trust is in compliance with the 1940 Act,
the regulations thereunder, the provisions of the Trust's charter documents or
by-laws, or its investment objectives and policies as then in effect.
7.2 Actual Collection Required. The Custodian shall not be liable for,
or considered to be the custodian of, any cash belonging to the Trust or any
money represented by a check, draft or other instrument for the payment of
money, until the Custodian or its agents actually receive such cash or collect
on such instrument.
7.3 No Responsibility for title, etc. So long as and to the extent
that it is in the exercise of reasonable care, the Custodian shall not be
responsible for the title, validity or genuineness of any property or evidence
of title thereto received or delivered by it pursuant to this Agreement.
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<PAGE> 14
7.4 Limitation on Duty to Collect. Custodian shall not be required to
enforce collection, by legal means or otherwise, of any money or property due
and payable with respect to Securities held for the Trust if such Securities
are in default or payment is not made after due demand or presentation.
7.5 Reliance Upon Documents and Instructions. The Custodian shall be
entitled to rely upon any certificate, notice or other instrument in writing
received by it and reasonably believed by it to be genuine. The Custodian shall
be entitled to rely upon any Oral Instructions and/or any Written Instructions
actually received by it pursuant to this Agreement.
7.6 Express Duties Only. The Custodian shall have no duties or
obligations whatsoever except such duties and obligations as are specifically
set forth in this Agreement, and no covenant or obligation shall be implied in
this Agreement against the Custodian.
7.7 Cooperation. The Custodian shall cooperate with and supply
necessary information, by the Trust, to the entity or entities appointed by the
Trust to keep the books of account of the Trust and/or compute the value of the
assets of the Trust. The Custodian shall take all such reasonable actions as
the Trust may from time to time request to enable the Trust to obtain, from
year to year, favorable opinions from the Trust's independent accountants with
respect to the Custodian's activities hereunder in connection with (a) the
preparation of the Trust's report on Form N-1A and Form N-SAR and any other
reports required by the Securities and Exchange Commission, and (b) the
fulfillment by the Trust of any other requirements of the Securities and
Exchange Commission.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification. The Trust shall indemnify and hold harmless the
Custodian and any sub-custodian appointed pursuant to Section 3.3 above, and
any nominee of the Custodian or of such sub-custodian from and against any
loss, damage, cost, expense (including attorneys' fees and disbursements),
liability (including, without limitation, liability arising under the
Securities Act of 1933, the 1934 Act, the 1940 Act, and any state or foreign
securities and/or banking laws) or claim arising directly or indirectly (a)
from the fact that Securities are registered in the name of any such nominee,
or (b) from any action or inaction by the Custodian or such sub-custodian (i)
at the request or direction of or in reliance on the advice of the Trust, or
(ii) upon Proper Instructions, or (c) generally, from the performance of its
obligations under this Agreement or any sub-custody agreement with a
sub-custodian appointed pursuant to Section 3.3 above or, in the case of any
such sub-custodian, from the performance of its obligations under such custody
agreement, provided that neither the Custodian nor any such sub-custodian shall
be indemnified and held harmless from and against any such loss, damage, cost,
expense, liability or claim arising from the Custodian's or such
sub-custodian's negligence, bad faith or willful misconduct.
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8.2 Indemnity to be Provided. If the Trust requests the Custodian to
take any action with respect to Securities, which may, in the opinion of the
custodian, result in the Custodian or its nominee becoming liable for the
payment of money or incurring liability of some other form, the Custodian shall
not be required to take such action until the Trust shall have provided
indemnity therefor to the Custodian in an amount and form satisfactory to the
Custodian.
ARTICLE IX
FORCE MAJEURE
Neither the Custodian nor the Trust shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes, acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that the Custodian in the event of a failure
or delay shall use its best efforts to ameliorate the effects of any such
failure or delay.
ARTICLE X
EFFECTIVE PERIOD; TERMINATION
10.1 Effective Period. This Agreement shall become effective as of the
date first set forth above and shall continue in full force and effect until
terminated as hereinafter provided.
10.2 Termination. Either party hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (90) days after the date of
the giving of such notice. If a successor custodian shall have been appointed
by the Board of Trustees, the Custodian shall, upon receipt of a notice of
acceptance by the successor custodian, on such specified date of termination
(a) deliver directly to the successor custodian all Securities (other than
Securities held in a Book-Entry System or Securities Depository) and cash then
owned by the Trust and held by the Custodian as custodian, and (b) transfer any
Securities held in a Book-Entry System or Securities Depository to an account
of or for the benefit of the Trust at the successor custodian, provided that
the Trust shall have paid to the Custodian all fees, expenses and other amounts
to the payment or reimbursement of which it shall then be entitled. Upon such
delivery and transfer, the Custodian shall be relieved of all obligations under
this Agreement. The Trust may at any time immediately terminate this Agreement
in the event of the appointment of a conservator or receiver for the Custodian
by regulatory authorities in the State of Ohio or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of
competent jurisdiction.
-14-
<PAGE> 16
10.3 Failure to Appoint Successor Custodian. If a successor custodian
is not designated by the Trust on or before the date of termination specified
pursuant to Section 10.1 above, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, which is (a) a "Bank"
as defined in the 1940 Act, (b) has aggregate capital, surplus and undivided
profits as shown on its then most recent published report of not less than $25
million, and (c) is doing business in New York, New York, all Securities, cash
and other property held by Custodian under this Agreement and to transfer to an
account of or for the Trust at such bank or trust company all Securities of the
Trust held in a Book-Entry System or Securities Depository. Upon such delivery
and transfer, such bank or trust company shall be the successor custodian under
this Agreement and the Custodian shall be relieved of all obligations under
this Agreement. If, after reasonable inquiry, Custodian cannot find a successor
custodian as contemplated in this Section 10.3, then Custodian shall have the
right to deliver to the Trust all Securities and cash then owned by the Trust
and to transfer any Securities held in a Book-Entry System or Securities
Depository to an account of or for the Trust. Thereafter, the Trust shall be
deemed to be its own custodian with respect to the Trust and the Custodian
shall be relieved of all obligations under this Agreement.
ARTICLE XI
COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to compensation as agreed upon from
time to time by the Trust and the Custodian. The fees and other charges in
effect on the date hereof and applicable to the Funds are set forth in Exhibit
B attached hereto.
ARTICLE XII
LIMITATION OF LIABILITY
The Trust is a business trust organized under ______________________
and under a Declaration of Trust, to which reference is hereby made a copy of
which is on file at the office of the Secretary of State of ________________ as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of the Trust entered into in the name of the Trust or on
behalf thereof by any of the Trustees, officers, employees or agents are made
not individually, but in such capacities, and are not binding upon any of the
Trustees, officers, employees, agents or shareholders of the Trust or the Funds
personally, but bind only the assets of the Trust, and all persons dealing with
any of the Funds of the Trust must look solely to the assets of the Trust
belonging to such Fund for the enforcement of any claims against the Trust.
ARTICLE XIII
NOTICES
Unless otherwise specified herein, all demands, notices, instructions,
and other communications to be given hereunder shall be in writing and shall be
sent or delivered to The receipt at the address set forth after its name herein
below:
-15-
<PAGE> 17
To the Trust:
____________________
____________________
____________________
Attn: ______________
Telephone: (___) _________
Facsimile: (___) _________
To the Custodian:
The Fifth Third Bank
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Area Manager - Trust Operations
Telephone: (513) 579-5300
Facsimile: (513) 579-4312
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XIII. Writing shall include
transmission by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XIV
MISCELLANEOUS
14.1 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Ohio.
14.2 References to Custodian. The Trust shall not circulate any
printed matter which contains any reference to Custodian without the prior
written approval of Custodian, excepting printed matter contained in the
prospectus or statement of additional information or its registration statement
for the Trust and such other printed matter as merely identifies Custodian as
custodian for the Trust. The Trust shall submit printed matter requiring
approval to Custodian in draft form, allowing sufficient time for review by
Custodian and its counsel prior to any deadline for printing.
14.3 No Waiver. No failure by either party hereto to exercise and no
delay by such party in exercising, any right hereunder shall operate as a
waiver thereof. The exercise by either party hereto of any right hereunder
shall not preclude the exercise of any other right, and the remedies provided
herein are cumulative and not exclusive of any remedies provided at law or in
equity.
14.4 Amendments. This Agreement cannot be changed orally and no
amendment to this Agreement shall be effective unless evidenced by an
instrument in writing executed by the parties hereto.
14.5 Counterparts. This Agreement may be executed in one or more
counterparts, and by the parties hereto on separate counterparts, each of which
shall be
-16-
<PAGE> 18
deemed an original but all of which together shall constitute but one and the
same instrument.
14.6 Severability. If any provision of this Agreement shall be
invalid, illegal or unenforceable in any respect under any applicable law, the
validity, legality and enforceability of the remaining provisions shall not be
affected or impaired thereby.
14.7 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that this Agreement shall not be
assignable by either party hereto without the written consent of the other
party hereto.
14.8 Headings. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered in its name and on its behalf by its
representatives thereunto duly authorized, all as of the day and year first
above written.
ATTEST: IMPACT MANAGEMENT INVESTMENT TRUST
By:
- ---------------------------- -----------------------------
Its:
-----------------------------
ATTEST: THE FIFTH THIRD BANK
By:
- ---------------------------- -----------------------------
Tracie Hoffman
Assistant Vice President
-17-
<PAGE> 19
Dated: _________________, 19__
EXHIBIT A
TO THE CUSTODY AGREEMENT BETWEEN
IMPACT MANAGEMENT INVESTMENT TRUST
AND THE FIFTH THIRD BANK
__________________, 19__
<TABLE>
<CAPTION>
Name of Fund Date
------------ ----
<S> <C>
IMPACT Management Growth Portfolio _________________, 19__
</TABLE>
ATTEST: IMPACT MANAGEMENT INVESTMENT TRUST
By:
- ---------------------------- -----------------------------
Its:
-----------------------------
ATTEST: THE FIFTH THIRD BANK
By:
- ---------------------------- -----------------------------
Tracie Hoffman
Assistant Vice President
-18-
<PAGE> 20
Dated: ___________________, 19__
EXHIBIT B
TO THE CUSTODY AGREEMENT BETWEEN
IMPACT MANAGEMENT INVESTMENT TRUST
AND THE FIFTH THIRD BANK
______________________, 19__
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Trust to Administer each Custody Account.
IMPACT MANAGEMENT GROWTH PORTFOLIO
Name Signature
---- ---------
_______________________________ ____________________________________
_______________________________ ____________________________________
_______________________________ ____________________________________
_______________________________ ____________________________________
_______________________________ ____________________________________
-19-
<PAGE> 21
SIGNATURE RESOLUTION
RESOLVED, That all of the following officers of IMPACT MANAGEMENT INVESTMENT
TRUST and any of them, namely the Chairman, President, Vice President,
Secretary and Treasurer, are hereby authorized as signers for the conduct of
business for an on behalf of the Funds with THE FIFTH THIRD BANK:
CHAIRMAN
- ------------------ -----------------------------
PRESIDENT
- ------------------ -----------------------------
VICE PRESIDENT
- ------------------ -----------------------------
VICE PRESIDENT
- ------------------ -----------------------------
VICE PRESIDENT
- ------------------ -----------------------------
VICE PRESIDENT
- ------------------ -----------------------------
TREASURER
- ------------------ -----------------------------
SECRETARY
- ------------------ -----------------------------
In addition, the following Assistant Treasurer is authorized to sign on behalf
of the Trust for the purpose of effecting securities transactions:
ASSISTANT
TREASURER
- ------------------ -----------------------------
The undersigned officers of _________________ hereby certify that the foregoing
is within the parameters of a Resolution adopted by Trustees of the Trust in a
meeting held __________________, 19__, directing and authorizing preparation of
documents and to do everything necessary to effect the Custody Agreement between
IMPACT MANAGEMENT INVESTMENT TRUST and THE FIFTH THIRD BANK.
By:
---------------------------
Its:
---------------------------
By:
---------------------------
Its:
---------------------------
-20-
<PAGE> 22
EXHIBIT C
TO THE CUSTODY AGREEMENT BETWEEN
IMPACT MANAGEMENT INVESTMENT TRUST
AND THE FIFTH THIRD BANK
______________________, 19__
MUTUAL FUND CUSTODY FEE SCHEDULE
<TABLE>
<S> <C> <C>
BASIC ACCOUNT CHARGE
FUND SIZE:
Less than $50MM $_________
$50MM - $99MM $_________
$100MM - $199MM $_________
$200MM - $349MM $_________
Greater than $350MM $_________
TRANSACTION FEES
DTC/FED Eligible Trades $9.00
DTC/FED Ineligible Trades $__________
Amortized Security Trades $__________
Repurchase Agreements (purchase and maturity) $__________
Third Party Repo's (purchase and maturity) $__________
Physical Commercial Paper Trades
(purchase and maturity) $__________
Book-Entry Commercial Paper Trades
(purchase and maturity) $__________
Options, each transaction $__________
Amortized Security Receipts $__________
</TABLE>
A transaction is a purchase, sale, maturity, redemption, tender, exchange,
dividend reinvestment, deposit or withdrawal of a security (with the exception
of Fifth Third Certificates of Deposit, Commercial Paper & Repo's).
MISCELLANEOUS FEES
<TABLE>
<S> <C>
Wire Transfers & Check Disbursements $__________
Depository/Transfer Agent Reject $__________
</TABLE>
-21-
<PAGE> 1
EXHIBIT 9(a)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
IMPACT MANAGEMENT INVESTMENT TRUST
AND
IMPACT MANAGEMENT SERVICES, INC.
<PAGE> 2
INDEX
<TABLE>
<S> <C>
1. Terms of Appointment; Duties of IMSI.....................................................................1
2. Fees and Expenses........................................................................................3
3. Representations and Warranties of IMSI...................................................................3
4. Representations and Warranties of the Trust..............................................................4
5. Indemnification..........................................................................................4
6. Covenants of the Trust and IMSI..........................................................................6
7. Termination of Agreement.................................................................................7
8. Assignment...............................................................................................7
9. Amendment................................................................................................7
10. Colorado Laws to Apply...................................................................................7
11. Merger of Agreement......................................................................................7
12. Notices..................................................................................................8
Fee Schedule......................................................................................................9
(a) Account Maintenance Charge...............................................................................9
(b) IRA Plan Fees...........................................................................................10
Fee Increases...........................................................................................10
(c) Expenses................................................................................................10
(d) Special Reports.........................................................................................10
(e) Security Deposit........................................................................................11
(f) Conversion Charge.......................................................................................11
Schedule A.......................................................................................................12
</TABLE>
i
<PAGE> 3
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made the 7th day of January, 1997, by and between IMPACT
MANAGEMENT INVESTMENT TRUST having its principal office and place of business
at 1875 Ski Time Square Drive, Suite One, Steamboat Springs, Colorado 80487(the
"Trust"), and IMPACT MANAGEMENT SERVICES, INC., a Pennsylvania corporation
having its principal office and place of business at Arrott Building, Third
Floor, 401 Wood Street, Pittsburgh, Pennsylvania 15219("IMSI").
WHEREAS, the Trust desires to appoint IMSI as its transfer agent,
dividend disbursing agent and agent in connection with certain other
activities, and IMSI desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF IMSI
1.01 Subject to the terms and conditions set forth in this agreement,
the Trust hereby employs and appoints IMSI to act as, and IMSI agrees to act as
its transfer agent for the Trust's authorized and issued shares of beneficial
interest, ("Shares"), dividend disbursing agent and agent in connection with
any accumulation, open-account or similar plans provided to the shareholders of
the Trust ("Shareholders") set out in the currently effective prospectus and
statement of additional information ("prospectus") of the Trust.
1.02 IMSI agrees that it will perform the following services:
(a) In accordance with procedures established from time to
time by agreement between the Trust and IMSI, IMSI shall:
(i) Receive for acceptance, orders for the purchase of Shares, and promptly
deliver payment and appropriate documentation therefore to the Custodian of the
Trust authorized by the Board of Trustees of the Trust (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of Shares and
hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and redemption directions and
deliver the appropriate documentation therefore to the Custodian;
(iv) At the appropriate time as and when it receives moneys paid to it by the
Custodian with respect to any redemption, pay over or cause to be paid over in
the appropriate manner such moneys as instructed by the redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners thereof upon receipt of
appropriate instructions;
(vi) Prepare and transmit payments for dividends and distributions declared by
the Trust;
(vii) Maintain records of account for and advise the Trust and its Shareholders
as to the foregoing; and
<PAGE> 4
(viii) Record the issuance of shares of the Trust and maintain pursuant to SEC
Rule 7Ad-10(e) a record of the total number of shares of the Trust which are
authorized, based upon data provided to it by the Trust, and issued and
outstanding. IMSI shall also provide the Trust on a regular basis with the
total number of shares which are authorized and issued and outstanding and
shall have no obligation, when recording the issuance of shares, to monitor the
issuance of such shares or to take cognizance of any laws relating to the issue
or sale of such shares, which functions shall be the sole responsibility of the
Trust.
(b) In addition to and not in lieu of the services set forth
in the above paragraph (a), IMSI shall:
(i) Perform all of the customary services of a transfer agent, dividend
disbursing agent, including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies, receiving and
tabulating proxies, mailing Shareholder reports and prospectuses to current
Shareholders, withholding taxes on US resident and non-resident alien accounts,
preparing and filing US Treasury Department Forms 1099 and other appropriate
forms required with respect to dividends and distributions by federal
authorities for all Shareholders, preparing and mailing confirmation forms and
statements of account to Shareholders for all purchases redemption's of Shares
and other confirmable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders, and providing Shareholder account
information and (ii) provide a system and reports which will enable the Trust
to monitor the total number of shares sold in each State.
(c) In addition, the Trust shall (i) identify to IMSI in
writing those transactions and shares to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of such transactions
for each state on the system prior to activation and thereafter monitor the
daily activity for each State as provided by IMSI. The responsibility of IMSI
for the Trust's blue sky State registration status is solely limited to the
initial establishment of transactions subject to blue sky compliance by the
Trust and the reporting of such transactions to the Trust as provided above.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Trust and IMSI.
2. FEES AND EXPENSES
2.01 For performance by IMSI pursuant to this Agreement, the Trust
agrees to pay IMSI an annual maintenance fee for each Shareholder account and
transaction fees for each portfolio or class of shares serviced under this
Agreement (See Schedule A) as set out in the fee schedule attached hereto. Such
fees and out-of-pocket expenses and advances identified under Section 2.02
below may be changed from time to time subject to mutual written agreement
between the Trust and IMSI.
2.02 In addition to the fee paid under Section 2.01 above, the Trust
agrees to reimburse IMSI for out-of-pocket expenses or advances incurred by
IMSI for the items set out in the fee schedule attached hereto. In addition,
any other expenses incurred by IMSI at the request or with the consent of the
Trust, will be reimbursed by the Trust.
2
<PAGE> 5
2.03 The Trust agrees to pay all fees and reimbursable expenses within
five days following the receipt of the respective billing notice. Postage for
mailing of dividends, proxies, Trust reports and other mailings to all
shareholder accounts shall be advanced to IMSI by the Trust at least seven (7)
days prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF IMSI
IMSI represents and warrants to the Trust that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of the Commonwealth of Pennsylvania.
3.02 It is duly qualified to carry on its business in the Commonwealth
of Pennsylvania.
3.03 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
3.06 IMSI is duly registered as a transfer agent under the Securities
Act of 1934 and shall continue to be registered throughout the remainder of
this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to IMSI that:
4.01 It is a business trust duly organized and existing and in good
standing under the laws of Massachusetts.
4.02 It is empowered under applicable laws and by its Declaration of
Trust and by-laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Declaration of Trust
and by-laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933 is
currently or will become effective and will remain effective, and appropriate
state securities law filings as required, have been or will be made and will
continue to be made, with respect to all Shares of the Trust being offered for
sale.
3
<PAGE> 6
5. INDEMNIFICATION
5.01 IMSI shall not be responsible for, and the Trust shall indemnify
and hold IMSI harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All action of IMSI or its agents or subcontractors required to be taken
pursuant to this Agreement, provided that such actions are taken in good faith
and without gross negligence or willful misconduct.
(b) The Trust's refusal or failure to comply with the terms of this Agreement,
or which arise out of the Trust's lack of good faith, gross negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Trust hereunder.
(c) The reliance on or use by IMSI or its agents or subcontractors of
information, records and documents which (i) are received by IMSI or its agents
or subcontractors and furnished to it by or on behalf of the Trust, and (ii)
have been prepared and/or maintained by the Trust or any other person or firm
on behalf of the Trust other than by IMSI.
(d) The reliance on, or the carrying out by IMSI or its agents or
subcontractors of any instructions or requests of the Trust.
(e) The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations or the securities laws or regulations of
any state that such Shares be registered in such state or in violation of any
stop order or other determination or ruling by any federal agency or any state
with respect to the offer or sale of such Shares in such state.
5.02 IMSI shall indemnify and hold the Trust harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to any action or failure or
omission to act by IMSI as a result of IMSI's lack of good faith, gross
negligence or willful misconduct.
5.03 At any time IMSI may apply to any officer of the Trust for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by IMSI under this
Agreement, and IMSI and its agents or subcontractors shall not be liable and
shall be indemnified by the Trust for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. IMSI, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Trust, reasonably believed
to be genuine and to have been signed by the proper person or persons, or upon
any instruction, information, data, records or documents provided IMSI or its
agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Trust, and shall not be held to have
notice of any change or authority of any person, until receipt of written
notice thereof from the Trust. IMSI, its agents and subcontractors shall also
be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of the
officers of the Trust, and the proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
4
<PAGE> 7
5.04 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to
the other for damages resulting from such failure to perform or otherwise from
such causes.
5.05 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provisions of this Agreement or for
any act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in this
Article 5 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party of seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in
any case in which the other party may be required to indemnify it except with
the other party's prior written consent.
6. COVENANTS OF THE TRUST AND IMSI
6.01 The Trust shall promptly furnish to IMSI a certified copy of the
resolution of the Board of Trustees of the Trust authorizing the appointment of
IMSI and the execution and delivery of this Agreement.
6.02 IMSI hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
6.03 IMSI shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the Rules thereunder, IMSI agrees that all such records prepared or maintained
by IMSI relating to the services to be performed by IMSI hereunder are the
property of the Trust and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly to the
Trust on and in accordance with its request.
6.04 IMSI and the Trust agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any other
person, except as may be required by law.
5
<PAGE> 8
6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, IMSI will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. IMSI reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person, and
shall promptly notify the Trust of any unusual request to inspect or copy the
shareholder records of the Trust or the receipt of any other unusual request to
inspect, copy or produce the records of the Trust.
7. TERMINATION OF AGREEMENT
7.01 This Agreement shall become effective as of the date hereof and
shall remain in force for a period of three (3) years, provided, however, that
both parties to this Agreement have the option to terminate the Agreement,
without penalty, upon ninety (90) days prior written notice.
7.02 Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of record and material will
be borne by the Trust. Additionally, IMSI reserves the right to charge for any
other reasonable expenses associated with such termination.
8. ASSIGNMENT
8.01 Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
9. AMENDMENT
9.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the
Board of Trustees of the Trust.
10. COLORADO LAWS TO APPLY
10.01 The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Colorado as at the time
in effect and the applicable provisions of the 1940 Act. To the extent that the
applicable law of the State of Colorado, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
11. MERGER OF AGREEMENT
11.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
6
<PAGE> 9
12. NOTICES.
All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when received or when sent by telex or
facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
TO THE ADMINISTRATOR: TO THE TRUST:
Impact Management Services, Inc. Impact Management Investment Trust
Arrott Building, Third Floor 1875 Ski Time Square Drive, Suite One
401 Wood Street Steamboat Springs, CO 80487
Pittsburgh, PA 15219
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
IMPACT MANAGEMENT INVESTMENT IMPACT MANAGEMENT SERVICES,
TRUST INC.
By: /s/CHARLES R. CLARK By: /s/RONALD A. STILLER
------------------------- ----------------------------
Charles R. Clark, Chairman Ronald A. Stiller, President
of the Board of Trustees
7
<PAGE> 10
FEE SCHEDULE
For the services rendered by IMSI in its capacity as transfer agent,
the Trust shall pay IMSI, within ten (10) days after receipt of an invoice from
IMSI at the beginning of each month, a fee, calculated as a combination of
account maintenance charges and transaction charges as follows:
(A) ACCOUNT MAINTENANCE CHARGE:
Based upon the total of all open/closed accounts in the Trust group
upon the following annual rates (billed monthly):**
Open Accounts . . . . . . . . . $165 per account/per year
Closed accounts . . . . . . . . $2.00 per account***
** All accounts closed during a calendar year will be considered as open
accounts for billing purposes until the end of that calendar year.
*** Closed accounts will remain in the shareholder files until all 1099's and
5498's have been sent to shareholders and reported (via magnetic media) to the
IRS.
TRANSACTION FEES:
(There shall be no transaction fees charged at this time.)
<TABLE>
<S> <C>
Trade Entry (purchase/liquidation) and
maintenance transactions.............................................$ 0 each
New account set-up.....................................................$ 0 each
Customer service calls.................................................$ 0 each
Correspondence/information requests....................................$ 0 each
Check preparation......................................................$ 0 each
Liquidation's paid by wire transfer....................................$ 0 each
Omnibus accounts....................................( per transaction)*$ 0
ACH charge.............................................................$ 0 each
SWP...................................................................*$ 0 each
</TABLE>
*Not included as a Trade Entry
8
<PAGE> 11
FEE INCREASES
On each annual anniversary date of this Agreement, the fees enumerated above
will be increased by the change in the Customer Price Index for the Northeast
region (CPI) for the twelve month period ending with the month preceding such
annual anniversary date.
(b) EXPENSES:
The Trust shall reimburse IMSI for any out-of-pocket expenses,
exclusive of salaries, advanced by IMSI in connection with but not limited to
the printing of confirmation forms and statements, proxy expenses, travel
requested by the Trust, telephone, facsimile transmissions, stationery and
supplies (related to Trust records), record storage, postage (plus a $.015
service charge for all mailings, pro-rata portion of annual 17AD-13 audit
letter, telex and courier charges incurred in connection with the performance
of its duties hereunder. IMSI shall provide the Trust with a monthly invoice of
such expenses and the Trust shall reimburse IMSI within fifteen (15) days after
receipt thereof.
9
<PAGE> 12
SCHEDULE A
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
IMPACT MANAGEMENT GROWTH PORTFOLIO
10
<PAGE> 1
Exhibit 9(b)
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made the 7th day of January, 1997, by and between Impact
Management Investment Trust (the "Trust") and Impact Management Services, Inc.
(the "Administrator").
BACKGROUND
WHEREAS, the Trust is a diversified open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Administrator is a Pennsylvania Corporation which has access
to facilities sufficient to provide administrative services to mutual Trusts;
and
WHEREAS, the Trust desires to avail itself of the assistance and
facilities of the Administrator and to have the Administrator perform for the
Trust certain services appropriate to the operations of the Trust and the
Administrator is willing to furnish such services in accordance with the terms
hereinafter set forth.
TERMS
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the Trust and the Administrator hereby agree to the
following:
1. DUTIES OF THE ADMINISTRATOR. The Administrator will provide the Trust
with the necessary office space, communication facilities and personnel to
perform the following services for the Trust:
<PAGE> 2
(a) Monitor all regulatory (1940 Act and IRS) and prospectus
restrictions for compliance;
(b) Prepare and coordinate the printing of semi-annual and annual
financial statements;
(c) Prepare selected management reports for performance and
compliance analyses as agreed upon by the Trust and Administrator from
time to time;
(d) Prepare selected financial data required for Trustees' meetings
as agreed upon by the Trust and the Administrator from time to time and
coordinate Trustees meeting agendas with outside legal counsel to the
Trust;
(e) Determine income and capital gains available for distribution and
calculate distributions required to meet regulatory, income, and excise
tax requirements, to be reviewed by the Trust's independent public
accountants;
(f) Prepare the Trust's federal, state, and local tax returns to be
reviewed by the Trust's independent public accountants;
(g) Prepare and maintain the Trust's operating expense budget to
determine proper expense accruals to be charged to the Trust in order to
calculate its daily net asset value;
<PAGE> 3
(h) 1940 Act filings -
In conjunction with the Trust's outside legal counsel the
Administrator will:
* Prepare the Trust's Form N-SAR reports;
* Update all financial sections of the Trust's Statement of
Additional Information and coordinate its completion;
* Update all financial sections of the Trust's prospectus and
coordinate its completion;
* Update all financial sections of the Trust's proxy statement and
coordinate its completion;
* Prepare an annual update to Trust's 24f-2 filing (if applicable);
(i) Monitor services provided by the Trust's custodian bank as well
as any other service providers to the Trust;
(j) Provide appropriate financial schedules (as requested by the
Trust's independent public accountants or SEC examiners), coordinate the
Trust's annual or SEC audit, and provide office facilities as may be
required;
(k) Attend management and board of trustee meetings as requested;
(l) The preparation and filing (filing fee to be paid by the Trust)
of applications and reports as necessary to register or maintain the
Trusts
<PAGE> 4
registration under the securities of "Blue Sky" laws of the various states
selected by the Trust's Distributor.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
2. COMPENSATION OF THE ADMINISTRATOR. In consideration of the services to
be performed by the Administrator as set forth herein for each portfolio listed
in Schedule B, the Administrator shall be entitled to receive compensation and
reimbursement for all reasonable out-of-pocket expenses. The Trust agrees to
pay the Administrator the fees and reimbursement of out-of-pocket expenses as
set forth in the fee schedule attached hereto as Schedule A.
3. RESPONSIBILITY AND INDEMNIFICATION. (a) The Administrator shall be held
to the exercise of reasonable care in carrying out the provisions of the
Agreement, but shall be without liability to the Trust for any action taken or
omitted by him in good faith without gross negligence, bad faith, willful
misconduct or reckless disregard of his duties hereunder. He shall be entitled
to rely upon and may act upon the accounting records and reports generated by
the Trust, advice of the Trust, or of counsel for the Trust and upon statements
of the Trust's independent accountants, and shall be without liability for any
action reasonably taken or omitted pursuant to such records and reports or
advice, provided that such action is not, to the knowledge of the
Administrator, in violation of applicable federal or state laws or regulations,
and
<PAGE> 5
provided further that such action is taken without gross negligence, bad faith,
willful misconduct or reckless disregard of his duties.
(b) The Administrator shall not be liable to the Trust for any error of
judgment or mistake of law or for any loss arising out of any act or omission
by the Administrator in the performance of his duties hereunder except as
hereinafter set forth. Nothing herein contained shall be construed to protect
the Administrator against any liability to the Trust or his security holders to
which the Administrator shall otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence in the performance of his duties on
behalf of the Trust, reckless disregard of the Administrator's obligations and
duties under this Agreement or the willful violation of any applicable law.
(c) Except as may otherwise be provided by applicable law, neither the
Administrator nor his stockholders, officers, Trustees, employees or agents
shall be subject to, and the Trust shall indemnify and hold such persons
harmless from and against, any liability for any damages, expenses or losses
incurred by reason of the inaccuracy of information furnished to the
Administrator by the Trust or his authorized agents or in connection with any
error in judgment or mistake of law or any act or omission in the course of,
connected with or arising out of any services to be rendered hereunder, except
by reason of willful misfeasance, bad faith or gross negligence in the
performance of his duties, by reason of reckless disregard of the
Administrator's obligations and duties under this Agreement or the willful
violation of any applicable law.
<PAGE> 6
4. REPORTS. (a) The Trust shall provide to the Administrator on a
quarterly basis a report of a duly authorized officer of the Trust representing
that all information furnished to the Administrator during the preceding
quarter was true, complete and correct to the best of his knowledge. The
Administrator shall not be responsible for the accuracy of any information
furnished to it by the Trust, and the Trust shall hold the Administrator
harmless in regard to any liability incurred by reason of the inaccuracy of
such information.
(b) The Administrator shall provide to the Board of Trustees of the Trust,
on a quarterly basis, a report, in such a form as the Administrator and the
Trust shall from time to time agree, representing that, to his knowledge, the
Trust was in compliance with all requirements of applicable federal and state
law, including without limitation, the roles and regulations of the Securities
and Exchange Commission and the Internal Revenue Service, or specifying any
instances in which the Trust was not so in compliance. Whenever, in the course
of performing his duties under this Agreement, the Administrator determines, on
the basis of information supplied to the Administrator by the Trust, that a
violation of applicable law has occurred, or that, to his knowledge, a possible
violation of applicable law may have occurred or, with the passage of time,
could occur, the Administrator shall promptly notify the Trust and his counsel
of such violation.
5. ACTIVITIES OF THE ADMINISTRATOR. The Administrator shall be free to
render similar services to others so long as his services hereinunder are not
impaired thereby.
<PAGE> 7
6. RECORDS. The records maintained by the Administrator shall be the
property of the Trust, and shall be made available to the Trust promptly upon
request by the Trust in the form in which such records have been maintained or
preserved. The Administrator shall upon approval of the Trust assist the
Trust's independent auditors, or, any regulatory body, in any requested review
of the Trust's accounts and records. The Administrator shall preserve the
records in his possession (at the expense of the Trust) as required by Rule
31a-1 of the 1940 Act.
7. CONFIDENTIALITY. The Administrator agrees that it will, on behalf of
himself and his officers and employees, treat all transactions contemplated by
this Agreement, and all other information germane thereto, as confidential and
such information shall not be disclosed to any person except as may be
authorized by the Trust.
8. DURATION AND TERMINATION OF THE AGREEMENT. This Agreement shall become
effective as of the date hereof and shall remain in force for a period of three
(3) years, provided, however, that both parties to this Agreement have the
option to terminate the Agreement, without penalty, upon ninety (90) days prior
written notice.
Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Trust. Additionally, the Administrator reserves the right to charge for any
other reasonable expenses associated with such termination.
9. ASSIGNMENT. This Agreement shall extend to and shall be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that
<PAGE> 8
this Agreement shall not be assignable by the Trust without the prior written
consent of the Administrator, or by the Administrator without the prior written
consent of the Trust.
10. LAWS TO APPLY. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Colorado as at the time
in effect and the applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Colorado, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
11. AMENDMENTS TO THIS AGREEMENT. This Agreement may be amended by the
parties hereto only if such amendment is in writing and signed by both parties.
12. MERGER OF AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
13. NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when delivered in person or by
certified mail, return receipt requested, and shall be given to the following
addresses (or such other addresses as to which notice is given):
To the Administrator: To the Trust::
Impact Management Services, Inc. Impact Management Investment Trust
Arrott Building, Third Floor 1875 Ski Time Square Drive, Suite One
401 Wood Street Steamboat Springs, CO 80487
Pittsburgh, PA 15219
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
IMPACT MANAGEMENT IMPACT MANAGEMENT
INVESTMENT TRUST SERVICES, INC.
By: /s/ Charles R. Clark By: /s/ Ronald A. Stiller
Name: Charles R. Clark Name: Ronald A. Stiller
Title: Chairman Title: President
<PAGE> 10
SCHEDULE A
(a) ADMINISTRATIVE SERVICE FEE:
The compensation to be paid to the Administrator for the services rendered
by the Administrator in his capacity as specified in Paragraph 1 DUTIES OF THE
ADMINISTRATOR, the Trust shall be included in the payments made pursuant to the
Transfer Agent and Dividend Disbursing Agent Agreement. NO OTHER FEES SHALL BE
PAID.
(b) EXPENSES:
The Trust shall not be required to reimburse the Administrator for any
out-of-pocket expenses, exclusive of salaries, advanced by the Administrator in
connection with but not limited to the printings or filings of documents for
the Trust, travel, telephone, quotation services, facsimile transmissions,
stationery and supplies, record storage, postage, telex, and courier charges,
incurred in connection with the performance of his duties hereunder.
<PAGE> 11
SCHEDULE B
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
IMPACT MANAGEMENT GROWTH PORTFOLIO
<PAGE> 1
EXHIBIT 11
ARTHUR F. BELL, JR. & ASSOCIATES, L.L.C.
CERTIFIED PUBLIC ACCOUNTANTS
(410) 821-8000
FAX (410) 321-8359
Member: Heaver Plaza
American Institute of Certified Public Accountants Suite 200
SEC Practice Section 1301 York Road
Maryland Association of Certified Lutherville, Maryland 21093
Public Accountants
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the references made to us in this Initial Registration Statement
of Impact Management Investment Trust on Form N-1A under the caption
"Independent Auditors" included in the Prospectus.
/s/ Arthur F. Bell, Jr. and Associates, L.L.C.
ARTHUR F. BELL, JR. AND ASSOCIATES, L.L.C.
CERTIFIED PUBLIC ACCOUNTANTS
Lutherville, Maryland
February 18, 1997
<PAGE> 1
EXHIBIT 13
JORDAN AMERICAN HOLDINGS, INC.
Investment Managament (NASDAQ: JAHI)
January 2, 1997
Ronald A. Stiller, President
IMPACT Management Investment Trust
1875 Ski Time Square Drive, Suite One
Steamboat Springs, CO 80487
Re: Initial Investment in IMPACT Management Investment Trust
Dear Mr. Stiller:
This letter is to confirm the intent of Jordan American Holdings, Inc. to
make the initial investment of $100,000.00 in IMPACT Management Growth
Portfolio, a portfolio of IMPACT Management Investment Trust. Such investment
shall be made upon receipt of notice from the Trust that it is ready to accept
same.
Very truly yours,
/s/ W. Neal Jordan
W. Neal Jordan
EQUITY ASSETS MANAGEMENT * MANAGEMENT SECURITIES, INC.
1875 SKI TIME SQUARE DRIVE * SUITE ONE * STEAMBOAT SPRINGS, CO 80487
970-879-1189 * 800-879-1189 * FAX 970-879-1272
<PAGE> 1
EXHIBIT 19
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints the
Chairman of the Board, President and Secretary of Impact Management Investment
Trust, and each of them, their true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution for them and in their names,
place, and stead, in any and all capacities, to sign any and all documents to
be filed with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, the Securities Exchange Act of 1934 and the Investment Company Act
of 1940, by means of the EDGAR; and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorneys-in-fact and agents, and each of them
full power and authority to sign and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as each of them might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
SIGNATURES TITLE DATE
- ---------- ----- ----
/s/Charles Clark Chairman of the Board of Trustees 12-18-1996
Charles Clark (Chief Executive Officer)
/s/Ronald Stiller President and Trustee 12-18-1996
Ronald Stiller
/s/Al Zeolla Treasurer 12-18-1996
Al Zeolla (Principal Financial and
Accounting Officer)
/s/Oleen Eagle Trustee 12-18-1996
Oleen Eagle
/s/Gerald L. Bowyer Trustee 12-18-1996
Gerald L. Bowyer
Sworn to and subscribed before me this 18th day of December, 1996
[seal]
/s/Darlene F. Schiffer
Notary Public
