THE APPLETON FUNDS
AGREEMENT AND DECLARATION OF TRUST
OCTOBER 31, 2000
<PAGE>
THE APPLETON FUNDS
------------------
AGREEMENT AND DECLARATION OF TRUST
----------------------------------
AGREEMENT AND DECLARATION OF TRUST made this 31st day of October, 2000, by
the Trustees hereunder, and by the holders of shares of beneficial interest to
be issued hereunder as hereinafter provided.
WITNESSETH:
WHEREAS, this Trust is being formed as a business trust under the laws of
the State of Ohio to carry on the business of an investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into their
hands as trustees of an Ohio business trust in accordance with the provisions
hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust as hereinafter set forth.
ARTICLE I
---------
NAME AND DEFINITIONS
--------------------
SECTION 1.1 NAME. This Trust shall be known as "The Appleton Funds" and
the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine.
SECTION 1.2 DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Trust" refers to the Ohio business trust established by this
Agreement and Declaration of Trust, as amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust named herein or elected
in accordance with Article III;
(c) "Shares" refers to the transferable units of interest into which the
beneficial interest in the Trust or any Series of the Trust (as the
context may require) shall be divided from time to time and shall
include fractions of Shares as well as whole Shares;
(d) "Series" refers to Series of Shares established and designated under
or in accordance with the provisions of Article IV;
<PAGE>
(e) "Shareholder" means a holder of record of outstanding Shares;
(f) The "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations thereunder, all as amended from time to time;
(g) "Commission" shall have the meaning given it in the 1940 Act;
(h) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time; and
(i) "Bylaws" shall mean the Bylaws of the Trust as amended from time to
time.
ARTICLE II
----------
PURPOSE OF TRUST
----------------
The purpose of the Trust is to operate as an investment company, to offer
Shareholders one or more investment programs primarily, but not exclusively, in
securities and debt instruments and to engage in any and all lawful acts or
activities for which business trusts may be formed under Chapter 1746.01 through
1746.99 of the Ohio Revised Code. Until the Trustees determine otherwise, the
principal office of the Trust is to be located at 221 East Fourth Street, Suite
300, Cincinnati, Ohio 45202.
ARTICLE III
-----------
THE TRUSTEES
------------
SECTION 3.1 NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) INITIAL TRUSTEE. Upon execution of this Declaration of Trust or a
counterpart hereof or some other writing in which he or she accepts
such Trusteeship and agrees to the provisions hereof, James I. Ladge
shall become a Trustee hereof.
(b) NUMBER. The Trustees serving as such, whether named above or hereafter
becoming a Trustee, may increase or decrease the number of Trustees to
a number other than the number theretofore determined. No decrease in
the number of Trustees shall have the effect of removing any Trustee
from office prior to the expiration of his or her term, but the number
of Trustees may be decreased in conjunction with the removal of a
Trustee pursuant to subsection (e) of this Section 3.1. A Trustee
shall be an individual at least 21 years of age who is not under legal
disability.
(c) TERM. Each Trustee shall serve as a Trustee during the lifetime of the
Trust and until its termination as hereinafter provided or until such
Trustee sooner dies, resigns, retires or is removed. The Trustees may
elect their own successors and may, pursuant to Section 3.1(f) hereof,
appoint Trustees to fill vacancies; provided that, immediately
2
<PAGE>
after filling a vacancy, at least two-thirds of the Trustees then
holding office shall have been elected to such office by the
Shareholders at an annual or special meeting. If at any time less than
a majority of the Trustees then holding office were so elected, the
Trustees shall forthwith cause to be held as promptly as possible, and
in any event within 60 days, a meeting of Shareholders for the purpose
of electing Trustees to fill any existing vacancies.
(d) RESIGNATION AND RETIREMENT. Any Trustee may resign his or her trust or
retire as a Trustee, by written instrument signed by him or her and
delivered to the other Trustees or to any officer of the Trust, and
such resignation or retirement shall take effect upon such delivery or
upon such later date as is specified in such instrument.
(e) REMOVAL. Any Trustee may be removed with or without cause at any time:
(i) by written instrument, signed by at least two-thirds of the number
of Trustees prior to such removal, specifying the date upon which such
removal shall become effective, (ii) by vote of the Shareholders
holding not less than two-thirds of the Shares then outstanding, cast
in person or by proxy at any meeting called for the purpose, or (iii)
by a declaration in writing signed by Shareholders holding not less
than two-thirds of the Shares then outstanding and filed with the
Trust's Custodian.
(f) VACANCIES. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation, the death, resignation,
retirement, removal or incapacity of any of the Trustees or resulting
from an increase in the number of Trustees by the Trustees, may (but
so long as there are at least three remaining Trustees, need not
unless required by the 1940 Act) be filled either by a majority of the
remaining Trustees through the appointment in writing of such other
person as such remaining Trustees in their discretion shall determine
(unless a shareholder election is required by the 1940 Act) or by the
election by the Shareholders, at a meeting called for the purpose, of
a person to fill such vacancy, and such appointment or election shall
be effective upon the written acceptance of the person named therein
to serve as a Trustee and agreement by such person to be bound by the
provisions of this Declaration of Trust, except that any such
appointment or election in anticipation of a vacancy to occur by
reason of retirement, resignation, or increase in number of Trustees
to be effective at a later date shall become effective only at or
after the effective date of said retirement, resignation, or increase
in number of Trustees. As soon as any Trustee so appointed or elected
shall have accepted such appointment or election and shall have agreed
in writing to be bound by this Declaration of Trust and the
appointment or election is effective, the Trust estate shall vest in
the new Trustee, together with the continuing Trustees, without any
further act or conveyance.
3
<PAGE>
(g) EFFECT OF DEATH, RESIGNATION, ETC. The death, resignation, retirement,
removal, or incapacity of the Trustees, or any one of them, shall not
operate to annul or terminate the Trust or to revoke or terminate any
existing agency or contract created or entered into pursuant to the
terms of this Declaration of Trust.
(h) NO ACCOUNTING. Except to the extent required by the 1940 Act or under
circumstances which would justify his or her removal for cause, no
person ceasing to be a Trustee as a result of his or her death,
resignation, retirement, removal or incapacity (nor the estate of any
such person) shall be required to make an accounting to the
Shareholders or remaining Trustees upon such cessation.
(i) MEETINGS. Meetings of the Trustees may be held regularly without call
or notice at such places and at such times as the Trustees may from
time to time determine, provided that notice of the first regular
meeting following any such determination shall be given to absent
Trustees. Special meetings of the Trustees may be held upon the call
of the Chairman, the President, the Treasurer or two or more Trustees.
Notice of any special meeting shall be mailed not less than 48 hours
before the meeting or sent by telegram, given by telephone or in
person not less than 24 hours before the meeting, but may be waived in
writing by any Trustee either before or after such meeting. The
attendance of a Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Trustee attends a meeting for
the express purpose of objecting to the transaction of any business on
the ground that the meeting has not been lawfully called or convened.
A quorum for any meeting of the Trustees shall be a majority of the
Trustees then in office, provided that a quorum shall in no case be
less than two Trustees. Whether or not a majority of the Trustees are
present at any meeting, a majority of the votes cast upon the question
may adjourn the meeting from time to time and the meeting may be held
as adjourned without further notice; and at such adjourned meeting at
which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally notified. Unless
provided otherwise by the 1940 Act or other applicable law, this
Declaration of Trust or the Bylaws, any action of the Trustees may be
taken at a meeting by vote of a majority of the Trustees present (a
quorum being present) or without a meeting by written consent of a
majority of the Trustees. Such consents shall be filed with the
minutes of the proceedings of the Trustees and shall be treated for
all purposes as votes at the meeting.
Any committee of the Trustees, including a nominating, executive or
audit committee, if any, may act with or without a meeting. A quorum
for any meetings of any such committee shall be a majority of the
members thereof. Unless provided otherwise by statute, this
Declaration of Trust or the Bylaws, any action of any such committee
may be taken at a meeting by vote of a majority of the members present
(a quorum being present) or without a meeting by written consent of a
majority of the members. Such consents shall be filed with the minutes
of the proceedings of such committee and shall be treated for all
purposes as votes at the meeting.
4
<PAGE>
With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons of the Trust within the
meaning of the 1940 Act hereof or otherwise interested in any action
to be taken may be counted for quorum purposes under this Section and
shall be entitled to vote to the extent permitted by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation in a meeting pursuant to any such communications system
shall constitute presence in person at such meeting unless otherwise
prohibited under the 1940 Act.
(j) OFFICERS. The Trustee shall elect a President, a Secretary and a
Treasurer and may elect a Chairman, one or more Vice Presidents, and
such other officers as they deem necessary or appropriate. The
Chairman, the President, the Treasurer and the Secretary shall be
elected annually by the Trustees. Other officers, if any, may be
elected or appointed by the Trustees at any time. The Trustees may
authorize the Chairman, if any, or President to appoint such other
officers or agents with such powers as the Trustees may deem to be
advisable. Any officer of the Trust elected or appointed by the
Trustees or by any committee of the Trustees may be removed at any
time, with or without cause, in such lawful manner as may be provided
in the Bylaws and in this Declaration of Trust. The Chairman and
President shall be Trustees. Any other officer may but need not be a
Trustee.
(k) BYLAWS. The Trustees may adopt and from time to time amend or repeal
Bylaws for the conduct of the business of the Trust, except with
respect to any provisions of the Bylaws which by law or under this
Declaration of Trust or the Bylaws require adoption, amendment or
repeal by the Shareholders.
SECTION 3.2 POWERS OF THE TRUSTEES. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient to carry out
that responsibility and the purpose of the Trust. Without limiting the
foregoing, the Trustees may, in accordance with Section 3.3, employ one or more
advisers, administrators, depositories and custodians and may authorize any
depository or custodian to employ sub-custodians or agents and to deposit all or
any part of such assets in a system or systems for the central handling of
securities and debt instruments, retain transfer, dividend, accounting or
shareholder servicing agents or any of the foregoing, provide for the
distribution of Shares by the Trust through one or more distributors, principal
underwriters or otherwise, set record dates or times for the determination of
Shareholders or various of them with respect to various matters; they may
compensate or provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants and employees of the Trust
or the Trustees on such terms as they deem appropriate; and in general they may
delegate to any officer of the Trust, to any committee of the Trustees and to
any employee, adviser, administrator, distributor, principal underwriter,
depository, custodian, transfer and dividend disbursing agent, or any other
agent or consultant of the Trust such authority, powers, functions and duties as
they consider desirable or appropriate for the conduct of the
5
<PAGE>
business and affairs of the Trust, including without implied limitation the
power and authority to act in the name of the Trust and of the Trustees, to sign
documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with the
1940 Act or other applicable law, the Trustees shall have power and authority:
(a) INVESTMENTS. To invest and reinvest cash and other property, and to
hold cash or other property uninvested without in any event being
bound or limited by any present or future law or custom in regard to
investments by trustees;
(b) DISPOSITION OF ASSETS. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of
the Trust;
(c) OWNERSHIP POWERS. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments
or property; and to execute and deliver proxies or powers of attorney
to such person or persons as the Trustees shall deem proper, granting
to such person or persons such power and discretion with relation to
securities, debt instruments or property as the Trustees shall deem
proper;
(d) SUBSCRIPTION. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or
debt instruments;
(e) FORM OF HOLDING. To hold any security, debt instrument or property in
a form not indicating any trust, whether in bearer, unregistered or
other negotiable form, or in the name of the Trustees or of the Trust
or in the name of a custodian, sub-custodian or other depository or a
nominee or nominees or otherwise;
(f) REORGANIZATION, ETC. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer,
any security or debt instrument of which is or was held in the Trust;
to consent to any contract, lease, mortgage, purchase or sale of
property by such corporation or issuer, and to pay calls or
subscriptions with respect to any security or debt instrument held in
the Trust;
(g) VOTING TRUSTS, ETC. To join with other holders of any securities or
debt instruments in acting through a committee, depository, voting
trustee or otherwise, and in that connection to deposit any security
or debt instrument with, or transfer any security or debt instrument
to, any such committee, depository or trustee, and to delegate to them
such power and authority with relation to any security or debt
instrument (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee, depository
or trustee as the Trustees shall deem proper;
(h) COMPROMISE. To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy, including,
but not limited to, claims for taxes;
6
<PAGE>
(i) PARTNERSHIPS, ETC. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) BORROWING AND SECURITY. To borrow funds or otherwise obtain credit and
to mortgage and pledge the assets of the Trust or any part thereof to
secure obligations arising in connection with such borrowing or
obtaining of credit;
(k) GUARANTEES, ETC. To endorse or guarantee the payment of any notes or
other obligations of any person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof; and to
mortgage and pledge the Trust property or any part thereof to secure
any of or all such obligations;
(l) INSURANCE. To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of
the business of the Trust, including, without limitation, insurance
policies insuring the assets of the Trust and payment of distributions
and principal on its portfolio investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
consultants, investment advisers, managers, administrators,
distributors, principal underwriters, or independent contractors, or
any thereof (or any person connected therewith), of the Trust
individually against all claims and liabilities of every nature
arising by reason of holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or
omitted by any such person in any such capacity, including any action
taken or omitted that may be determined to constitute negligence;
provided, however, that insurance which protects the Trustees and
officers against liabilities rising from action involving willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of their offices may not be purchased;
(m) PENSIONS, ETC. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out
pension, profit-sharing, share bonus, share purchase, savings, thrift
and other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the
Trust; and;
(n) DISPOSITION OF SHARES. To issue, sell, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, transfer and
otherwise deal in Shares, including Shares in fractional
denominations, and, subject to the more detailed provisions set forth
in Article V, to apply to any such repurchase, redemption, retirement,
7
<PAGE>
cancellation or acquisition of Shares any funds or property of the
Trust, whether capital or surplus or otherwise, to the full extent now
or hereafter permitted by the laws of the State of Ohio governing
business trusts and corporations.
Except as otherwise provided by the 1940 Act or other applicable law, this
Declaration of Trust or the Bylaws, any action to be taken by the Trustees may
be taken by a majority of the Trustees present at a meeting of Trustees (a
quorum, consisting of at least a majority of the Trustees then in office, being
present), within or without Ohio, including any meeting held by means of a
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting, or
by written consents of a majority of the Trustees then in office (or such larger
or different number as may be required by the 1940 Act or other applicable law).
SECTION 3.3 CERTAIN CONTRACTS. Subject to compliance with the provisions
of the 1940 Act, but notwithstanding any limitations of present and future law
or custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations, partnerships,
limited partnerships, limited liability companies, other type of organizations,
or individuals ("Contracting Party") to provide for the performance and
assumption of some or all of the following services, duties and responsibilities
to, for or of the Trust and/or the Trustees, and to provide for the performance
and assumption of such other services, duties and responsibilities in addition
to those set forth below as the Trustees may determine appropriate:
(a) ADVISORY. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect to the
investments of the Trust or of the assets belonging to any Series of
Shares of the Trust (as that phrase is defined in subsection (a) of
Section 4.2), to manage such investments and assets, make investment
decisions with respect thereto, and to place purchase and sale orders
for portfolio transactions relating to such investments and assets;
(b) ADMINISTRATION. Subject to the general supervision of the Trustees and
in conformity with any policies of the Trustees with respect to the
operations of the Trust, to supervise all or any part of the
operations of the Trust, and to provide all or any part of the
administrative and clerical personnel, office space and office
equipment and services appropriate for the efficient administration
and operations of the Trust;
(c) DISTRIBUTION. To distribute the Shares of the Trust, to be principal
underwriter of such Shares, and/or to act as agent of the Trust in the
sale of Shares and the acceptance or rejection of orders for the
purchase of Shares;
(d) CUSTODIAN AND DEPOSITORY. To act as depository for and to maintain
custody of the property of the Trust and accounting records in
connection therewith;
8
<PAGE>
(e) TRANSFER AND DIVIDEND DISBURSING AGENCY. To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the
transfer thereof, and to disburse any dividends declared by the
Trustees and in accordance with the policies of the Trustees and/or
the instructions of any particular Shareholder to reinvest any such
dividends;
(f) SHAREHOLDER SERVICING. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect
to Shareholders and their Shares, and similar matters; and
(g) LEGAL, ACCOUNTING, TAXES AND OTHER. To handle all or any part of the
legal, accounting, tax or other responsibilities, whether with respect
to the Trust's properties, Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the Trust or a Contracting Party from entering
into sub-contractual arrangements relative to any of the matters referred to in
Sections 3.3(a) through (g) hereof.
Subject to the provisions of the 1940 Act, the fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any Contracting
Party or that the Contracting Party or any parent or affiliate thereof is a
Shareholder or has an interest in the Trust, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships, limited liability
companies or other organizations, or has other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust and/or the
Trustees or disqualify any Shareholder, Trustee or officer of the Trust from
voting upon or executing the same or create any liability or accountability to
the Trust or its Shareholders, provided that in the case of any relationship or
interest referred to in the preceding clause (i) on the part of any Trustee or
officer of the Trust either (1) the material facts as to such relationship or
interest have been disclosed to or are known by the Trustees not having any such
relationship or interest and the contract involved is approved in good faith
reasonably justified by such facts by a majority of such Trustees not having any
such relationship or interest (even though such unrelated or disinterested
Trustees are less than a quorum of all of the Trustees), or (2) the specific
contract involved is fair to the Trust as of the time it is authorized, approved
or ratified by the Trustees or by the Shareholders.
9
<PAGE>
SECTION 3.4 PAYMENT OF TRUST EXPENSES AND COMPENSATION OF TRUSTEES. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust, or partly out of principal and partly out of income, and to
charge or allocate the same to, between or among such one or more of the Series
that may be established and designated pursuant to Article IV, as the Trustees
deem fair, all expenses, fees, charges, taxes and liabilities incurred or
arising in connection with the Trust, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers, employees,
investment adviser, administrator, distributor, principal underwriter, auditor,
counsel, depository, custodian, transfer agent, dividend disbursing agent,
accounting agent, shareholder servicing agent, and such other agents,
consultants, and independent contractors and such other expenses and charges as
the Trustees may deem necessary or proper to incur. Without limiting the
generality of any other provision hereof, the Trustees shall be entitled to
reasonable compensation from the Trust for their services as Trustees and may
fix the amount of such compensation.
SECTION 3.5 OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets
of the Trust shall at all times be considered as vested in the Trustees.
ARTICLE IV
----------
SHARES
------
SECTION 4.1 DESCRIPTION OF SHARES. The beneficial interest in the Trust
shall be divided into Shares, all without par value, but the Trustees shall have
the authority from time to time to divide the Shares into two or more Series of
Shares, as they deem necessary or desirable, to establish and designate such
Series, and to fix and determine the relative rights and preferences as between
the different Series of Shares as to right of redemption and the price, terms
and manner of redemption, special and relative rights as to dividends and other
distributions and on liquidation, sinking or purchase fund provisions,
conversion rights, and conditions under which the several Series shall have
separate voting rights or no voting rights and to determine such other terms and
conditions of such Series as the Trustees determine to be appropriate. Except as
aforesaid all Shares of the different Series shall be identical.
The Shares of each Series may be issued or reissued from time to time in
one or more classes ("Classes"), as determined by the Board of Trustees pursuant
to resolution. Each Class shall be appropriately designated, prior to the
issuance of any shares thereof, by some distinguishing letter, number or title.
All Shares within a Class shall be alike in every particular. All Shares of each
Series shall be of equal rank and have the same powers, preferences and rights,
and shall be subject to the same qualifications, limitations and restrictions
without distinction between the Shares of different Classes thereof, except with
respect to such differences among such Classes, as the Board of Trustees shall
from time to time determine to be necessary or desirable, including differences
in the rate or rates of dividends or distributions. The Board of Trustees may
from time to time increase the number of Shares allocated to any Class already
created by providing that any unissued Shares of the applicable Series shall
constitute part of such Class, or may decrease the number of Shares allocated to
any Class
10
<PAGE>
already created by providing that any unissued Shares previously assigned to
such Class shall no longer constitute part thereof. The Board of Trustees is
hereby empowered to classify or reclassify from time to time any unissued Shares
of each Series by fixing or altering the terms thereof and by assigning such
unissued shares to an existing or newly created Class. Notwithstanding anything
to the contrary in this paragraph the Board of Trustees is hereby empowered (i)
to redesignate any issued Shares of any Series by assigning a distinguishing
letter, number or title to such Shares and (ii) to reclassify all or any part of
the issued Shares of any Series to make them part of an existing or newly
created Class. The number of authorized Shares and the number of Shares of each
Series that may be issued is unlimited, and the Trustees may issue Shares of any
Series for such consideration and on such terms as they may determine (or for no
consideration if pursuant to a Share dividend or split-up), all without action
or approval of the Shareholders. All Shares when so issued on the terms
determined by the Trustees shall be fully paid and non-assessable (but may be
subject to mandatory redemption by the Trust as provided in subsection (g) of
Section 4.2). The Trustees may classify or reclassify any unissued Shares or any
Shares previously issued and reacquired of any Series into one or more Series
that may be established and designated from time to time. The Trustees may hold
as treasury Shares (of the same or some other Series), reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Series reacquired by the Trust.
The Trustees may from time to time close the transfer books or establish
record dates and times for the purposes of determining the holders of Shares
entitled to be treated as such, to the extent provided or referred to in Section
5.3.
The establishment and designation of any Series of Shares in addition to
that established and designated in Section 4.2, or of any Class of Shares, shall
be effective upon the execution by a majority of the then Trustees of an
instrument setting forth such establishment and designation and the relative
rights and preferences of such Series or Class, or as otherwise provided in such
instrument. At any time that there are no Shares outstanding of any particular
Series or Class previously established and designated the Trustees may by an
instrument executed by a majority of their number abolish that Series or Class
and the establishment and designation thereof. Each instrument referred to in
this paragraph shall have the status of an amendment to this Declaration of
Trust.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such person is interested may acquire, own, hold and dispose of Shares
of any Series of the Trust to the same extent as if such person were not a
Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Shares of any Series from any
such person or any such organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or purchase of Shares of
such Series generally.
11
<PAGE>
Section 4.2 ESTABLISHMENT AND DESIGNATION OF SERIES. Without limiting
the authority of the Trustees set forth in Section 4.1 to establish and
designate any further Series, the Trustees hereby establish and designate one
Series of Shares: "Appleton Equity Fund". The Shares of this Series and any
Shares of any further Series that may from time to time be established and
designated by the Trustees shall (unless the Trustees otherwise determine with
respect to some further Series or Class at the time of establishing and
designating the same) have the following relative rights and preferences:
(a) ASSETS BELONGING TO SERIES. All consideration received by the Trust
for the issue or sale of Shares of a particular Series, together with
all assets in which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of
such proceeds in whatever form the same may be, shall irrevocably
belong to that Series for all purposes, subject only to the rights of
creditors, and shall be so recorded upon the books of account of the
Trust. Such consideration, assets, income, earnings, profits and
proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds, in whatever form the
same may be, together with any General Items allocated to that Series
as provided in the following sentence, are herein referred to as
"assets belonging to" that Series. In the event that there are any
assets, incomes, earnings, profits, and proceeds thereof, funds, or
payments which are not readily identifiable as belonging to any
particular Series (collectively "General Items"), the Trustees shall
allocate such General Items to and among any one or more of the Series
established and designated from time to time in such manner and on
such basis as they, in their sole discretion, deem fair and equitable;
and any General Items so allocated to a particular Series shall belong
to that Series. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Series for all
purposes.
The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be
treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
(b) LIABILITIES BELONGING TO SERIES. The assets belonging to each
particular Series shall be charged with the liabilities of the Trust
in respect of that Series and all expenses, costs, charges and
reserves attributable to that Series, and any general liabilities,
expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Series shall be
allocated and charged by the Trustees to and among any one or more of
the Series established and designated from time to time in such manner
and on such basis as the Trustees in their sole discretion deem fair
and equitable. The liabilities, expenses, costs, charges and reserves
allocated and so charged to a Series are herein referred to as
"liabilities belonging to" that Series. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the holders of all Series for all
purposes.
12
<PAGE>
(c) DIVIDENDS. Dividends and distributions on Shares of a particular
Series may be paid with such frequency as the Trustees may determine,
which may be daily or otherwise pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees
may determine, to the holders of Shares of that Series, from such of
the estimated income and capital gains, accrued or realized, from the
assets belonging to that Series, as the Trustees may determine, after
providing for actual and accrued liabilities belonging to that Series.
All dividends and distributions on Shares of a particular Series shall
be distributed pro rata to the holders of that Series in proportion to
the number of Shares of that Series held by such holders at the date
and time of record established for the payment of such dividends or
distributions, except that in connection with any dividend or
distribution program or procedure the Trustees may determine that no
dividend or distribution shall be payable on Shares as to which the
Shareholder's purchase order and/or payment have not been received by
the time or times established by the Trustees under such program or
procedure, and except that if Classes have been established for any
Series, the rate of dividends or distributions may vary among such
Classes pursuant to resolution, which may be a standing resolution, of
the Board of Trustees. Such dividends and distributions may be made in
cash or Shares or a combination thereof as determined by the Trustees
or pursuant to any program that the Trustees may have in effect at the
time for the election by each Shareholder of the mode of the making of
such dividend or distribution to that Shareholder. Any such dividend
or distribution paid in Shares will be paid at the net asset value
thereof as determined in accordance with subsection (h) of Section
4.2.
The Trust intends to qualify each Series as a "regulated investment
company" under the Internal Revenue Code of 1986, as amended, or any
successor or comparable statute thereto, and regulations promulgated
thereunder. Inasmuch as the computation of net income and gains for
federal income tax purposes may vary from the computation thereof on
the books of the Trust, the Board of Trustees shall have the power, in
its sole discretion, to distribute in any fiscal year as dividends,
including dividends designated in whole or in part as capital gains
distributions, amounts sufficient, in the opinion of the Board of
Trustees, to enable each Series to qualify as a regulated investment
company and to avoid liability of the Series for federal income tax in
respect of that year. However, nothing in the foregoing shall limit
the authority of the Board of Trustees to make distributions greater
than or less than the amount necessary to qualify as a regulated
investment company and to avoid liability of each Series for such tax.
(d) LIQUIDATION. In event of the liquidation or dissolution of the Trust,
the Shareholders of each Series that has been established and
designated shall be entitled to receive, as a Series, when and as
declared by the Trustees, the excess of the assets belonging to that
Series over the liabilities belonging to that Series. The assets so
distributable to the Shareholders of any particular Series shall be
distributed among such Shareholders in proportion to the number of
Shares of that Series held by them and recorded on the books of the
Trust. The liquidation of any particular Series may be authorized by
vote of a majority of the Trustees then in office subject to the
approval of a majority of the outstanding voting Shares of that
Series, as defined in the 1940 Act.
13
<PAGE>
(e) VOTING. All shares of all Series shall have "equal voting rights" as
such term is defined in the 1940 Act and except as otherwise provided
by that Act or rules, regulations or orders promulgated thereunder. On
each matter submitted to a vote of the Shareholders, all Shares of all
Series shall vote as a single class ("Single Class Voting"); provided,
however, that (a) as to any matter with respect to which a separate
vote of any Series is required by the 1940 Act, or rules and
regulations promulgated thereunder, or would be required under the
Ohio General Corporation Law if the Trust were an Ohio corporation,
such requirements as to a separate vote by that Series shall apply in
lieu of Single Class Voting as described above; (b) in the event that
the separate vote requirements referred to in (a) above apply with
respect to one or more Series, then, subject to (c) below, the Shares
of all other Series shall vote as a single class; and (c) as to any
matter which does not affect the interest of a particular Series, only
the holders of Shares of the one or more affected Series shall be
entitled to vote.
(f) REDEMPTION BY SHAREHOLDER. Each holder of Shares of a particular
Series shall have the right, at such times as may be permitted by the
Trust but no less frequently than once each week, to require the Trust
to redeem all or any part of his or her Shares of that Series at a
redemption price equal to the net asset value per Share of that Series
next determined in accordance with subsection (h) of this Section 4.2
after the Shares are properly tendered for redemption. Payment of the
redemption price shall be in cash; provided, however, that if the
Trustees determine, which determination shall be conclusive, that
conditions exist which make payment wholly in cash unwise or
undesirable, the Trust may make payment wholly or partly in securities
or other assets belonging to the Series of which the Shares being
redeemed are part, at the value of such securities or assets used in
such determination of net asset value. If so authorized by the
Trustees, the Trust may, at any time and from time to time, charge
fees for effecting redemptions, at such rates as the Trustees may
establish, as and to the extent permitted under the 1940 Act and may,
from time to time, pursuant to the 1940 Act, suspend such right of
redemption.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of
any Series to require the Trust to redeem Shares of that Series during
any period or at any time when and to the extent permissible under the
1940 Act, and such redemption is conditioned upon the Trust having
funds or property legally available therefor.
(g) REDEMPTION BY TRUST. Each Share of each Series that has been
established and designated is subject to redemption by the Trust at
the redemption price which would be applicable if such Share was then
being redeemed by the Shareholder pursuant to subsection (f) of this
Section 4.2: (a) at any time, if the Trustees determine in their sole
discretion that failure to so redeem may have materially adverse
consequences to all or any of the holders of the Shares, or any Series
thereof, of the Trust, or (b) upon such other conditions as may from
time to time be determined by the Trustees and set forth
14
<PAGE>
in the then current Prospectus of the Trust with respect to
maintenance of Shareholder accounts of a minimum amount. Upon such
redemption the holders of the Shares so redeemed shall have no further
right with respect thereto other than to receive payment of such
redemption price.
(h) NET ASSET VALUE. The net asset value per Share of any Series shall be
the quotient obtained by dividing the value of the net assets of that
Series (being the value of the assets belonging to that Series less
the liabilities belonging to that Series) by the total number of
Shares of that Series outstanding, all determined in accordance with
the methods and procedures, including without limitation those with
respect to rounding, established by the Trustees from time to time.
The net asset value of each outstanding Share of the Trust shall be
determined at least once on each day that the New York Stock Exchange
is open for business, and at such other times as the Trustees by
resolution may determine. The method of determination of net asset
value shall be determined by the Trustees and shall be as set forth in
the Prospectus. Separate determinations of net asset value shall be
made for Shares of each Series, if any, and separate classes of each
series, if any, with respect to which specific assets of the Trust
have been allocated. The power and duty to make the daily calculations
may be delegated by the Trustees to the investment adviser, the
custodian, the transfer agent or such other person as the Trustees by
resolution may determine. The Trustees may suspend the daily
determination of net asset value to the extent permitted by the 1940
Act.
(i) TRANSFER. All Shares of each particular Series shall be transferable,
but transfers of Shares of a particular Series will be recorded on the
Share transfer records of the Trust applicable to that Series only at
such times as Shareholders shall have the right to require the Trust
to redeem Shares of that Series and at such other times as may be
permitted by the Trustees.
Until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereof and neither
the Trustees nor any transfer agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the
proposed transfer. Any person becoming entitled to any Shares in
consequence of death, bankruptcy or incompetence of any Shareholder,
or otherwise by operation of law, shall be recorded on the registrar
of Shares as the holder of such Shares upon production of the proper
evidence thereof to the transfer agent of the Trust, but until such
record is made, the Shareholder of record shall be deemed to be the
holder of such Shares for all purposes hereof and neither the Trustees
nor any transfer agent or registrar nor any officer of agent of the
Trust shall be affected by any notice of such death, bankruptcy or
incompetence, or other operation of law.
(j) EQUALITY. All Shares of each particular Series shall represent an
equal proportionate interest in the assets belonging to that Series
(subject to the liabilities belonging to that Series), and each Share
of any particular Series shall be equal to each other Share of
15
<PAGE>
that Series; but the provisions of this sentence shall not restrict
any distinctions permissible under subsection (c) of this Section 4.2
that may exist with respect to dividends and distributions on Shares
of the same Series. The Trustees may from time to time divide or
combine the Shares of any particular Series into a greater or lesser
number of Shares of that Series without thereby changing the
proportionate beneficial interest in the assets belonging to that
Series or in any way affecting the rights of Shares of any other
Series.
(k) FRACTIONS. Any fractional Share of any Series or Class, if any such
fractional Share is outstanding, shall carry proportionately all the
rights and obligations of a whole Share of that Series or Class,
including with respect to voting, receipt of dividends and
distributions, redemption of Shares, and liquidation of the Trust.
(l) CONVERSION RIGHTS. Subject to compliance with the requirements of the
1940 Act, the Trustees shall have the authority to provide that
holders of Shares of any Series shall have the right to convert said
Shares into Shares of one or more other Series of Shares in accordance
with such requirements and procedures as may be established by the
Trustees.
SECTION 4.3 OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or of a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each Series
that has been established and designated. No certificates certifying the
ownership of Shares need be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the use of facsimile
signatures, the transfer of Shares and similar matters. The record books of the
Trust as kept by the Trust or any transfer or similar agent, as the case may be,
shall be conclusive as to who are the Shareholders and as to the number of
Shares of each Series and Class held from time to time by each such Shareholder.
SECTION 4.4 INVESTMENTS IN THE TRUST. The Trustees may accept
investments in the Trust from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any purchase orders for Shares whether or not conforming to such
authorized terms.
16
<PAGE>
SECTION 4.5 NO PREEMPTIVE RIGHTS. Shareholders shall have no preemptive
or other right to subscribe to any additional Shares or other securities issued
by the Trust.
SECTION 4.6 STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the Trust nor entitle the
representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust. Ownership of Shares shall not entitle
the Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders as
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
ARTICLE V
---------
SHAREHOLDERS' VOTING POWERS AND MEETINGS
----------------------------------------
SECTION 5.1 VOTING POWERS. The Shareholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Section 3.1,
(ii) with respect to any contract with a Contracting Party as provided in
Section 3.3 as to which Shareholder approval is required by the 1940 Act, (iii)
with respect to any termination or reorganization of the Trust or any Series to
the extent and as provided in Sections 7.1 and 7.2, (iv) with respect to any
amendment of this Declaration of Trust to the extent and as provided in Section
7.4, and (v) with respect to such additional matters relating to the Trust as
may be required by the 1940 Act, this Declaration of Trust, the Bylaws or any
registration of the Trust with the Commission (or any successor agency) or any
state, or as the Trustees may consider necessary or desirable. There shall be no
cumulative voting in the election of any Trustee or Trustees. Shares may be
voted in person or by proxy. A proxy with respect to Shares held in the name of
two or more persons shall be valid if executed by any one of them unless at or
prior to exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required by law, this Declaration of Trust or the Bylaws
to be taken by Shareholders.
SECTION 5.2 MEETINGS. Meetings (including meetings involving only the
holders of Shares of one or more but less than all Series) of Shareholders may
be called by the Trustees from time to time for the purpose of taking action
upon any matter requiring the vote or authority of the Shareholders as herein
provided or upon any other matter deemed by the Trustees to be necessary or
desirable. Written notice of any meeting of Shareholders shall be given or
caused to be given by the Trustees by mailing such notice at least seven days
before such meeting, postage prepaid, stating the time, place and purpose of the
meeting, to each Shareholder at the Shareholder's address as it appears on the
records
17
<PAGE>
of the Trust. The Trustees shall promptly call and give notice of a meeting of
Shareholders for the purpose of voting upon removal of any Trustee of the Trust
when requested to do so in writing by Shareholders holding not less than 10% of
the Shares then outstanding. If the Trustees shall fail to call or give notice
of any meeting of Shareholders (including a meeting involving only the holders
of Shares of one or more but less than all Series) for a period of 30 days after
written application by Shareholders holding at least 25% of the Shares then
outstanding requesting a meeting be called for any other purpose requiring
action by the Shareholders as provided herein or in the Bylaws, then
Shareholders holding at least 25% of the Shares then outstanding may call and
give notice of such meeting, and thereupon the meeting shall be held in the
manner provided for herein in case of call thereof by the Trustees.
SECTION 5.3 RECORD DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding 30 days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than 60 days prior to the date of any meeting of Shareholders or other action as
the date and time of record for the determination of Shareholders entitled to
vote at such meeting or any adjournment thereof or to be treated as Shareholders
of record for purposes of such other action, and any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to vote at such
meeting or any adjournment thereof or (subject to any provisions permissible
under subsection (c) of Section 4.2 with respect to dividends or distributions
on Shares that have not been ordered and/or paid for by the time or times
established by the Trustees under the applicable dividend or distribution
program or procedure then in effect) to be treated as a Shareholder of record
for purposes of such other action, even though he or she has since that date and
time disposed of his or her Shares, and no Shareholder becoming such after that
date and time shall be so entitled to vote at such meeting or any adjournment
thereof or to be treated as a Shareholder of record for purposes of such other
action.
SECTION 5.4 QUORUM AND REQUIRED VOTE. A majority of the Shares entitled
to vote shall be a quorum for the transaction of business at a Shareholders'
meeting, but any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held, within a reasonable time after the
date set for the original meeting without the necessity of further notice. A
majority of the Shares voted, at a meeting of which a quorum is present, shall
decide any questions and a plurality shall elect a Trustee, except when a
different vote is required or permitted by any provision of the 1940 Act or
other applicable law or by this Declaration of Trust or the Bylaws.
SECTION 5.5 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 other proportion thereof as shall be required by the 1940 Act or by any
express provision of this Declaration of Trust or the Bylaws) consent to the
action in writing and such written consents are filed with the records of the
meetings
18
<PAGE>
of Shareholders. Such consent shall be treated for all purposes as a vote taken
at a meeting of Shareholders.
SECTION 5.6 INSPECTION OF RECORDS. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
stockholders of an Ohio corporation under the Ohio General Corporation Law.
SECTION 5.7 ADDITIONAL PROVISIONS. The Bylaws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE VI
----------
LIMITATION OF LIABILITY; INDEMNIFICATION
----------------------------------------
SECTION 6.1 TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE.
All persons extending credit to, contracting with or having any claim against
the Trust shall look only to the assets of the Trust for payment under such
credit, contract or claim; and neither the Shareholders nor the Trustees, nor
any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor. Every note, bond, contract,
instrument, certificate or undertaking and every other act or thing whatsoever
executed or done by or on behalf of the Trust or the Trustees or any of them in
connection with the Trust shall be conclusively deemed to have been executed or
done only by or for the Trust or the Trustees and not personally. Nothing in
this Declaration of Trust shall protect any Trustee or officer against any
liability to the Trust or the Shareholders to which such Trustee or officer
would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee or of such officer.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that this
Declaration of Trust is on file with the Secretary of the State of Ohio and
shall recite to the effect that the same was executed or made by or on behalf of
the Trust or by them as Trustees or Trustee or as officers or officer and not
individually and that the obligations of such instrument are not binding upon
any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust, but the omission thereof shall not operate to
bind any Trustees or Trustee or officers or officer or Shareholders or
Shareholder individually.
SECTION 6.2 TRUSTEE'S GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall only be liable for
his or her own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment or mistakes of
fact or law. Subject to the foregoing, (a) the Trustees shall not be responsible
or liable in any event for any neglect or wrongdoing of any officer, agent,
employee, consultant, adviser, administrator, distributor or principal
underwriter, custodian or transfer, dividend disbursing, shareholder servicing
or accounting agent of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee; (b) the Trustees may take advice of
counsel or other experts with respect to the meaning and operation of this
Declaration of
19
<PAGE>
Trust and their duties as Trustees, and shall be under no liability for any act
or omission in accordance with such advice or for failing to follow such advice;
and (c) in discharging their duties, the Trustees, when acting in good faith,
shall be entitled to rely upon the books of account of the Trust and upon
written reports made to the Trustees by any officer appointed by them, any
independent public accountant, counsel, and (with respect to the subject matter
of the contract involved) any officer, partner or responsible employee of a
Contracting Party appointed by the Trustees pursuant to Section 3.3. The
Trustees as such shall not be required to give any bond or surety or any other
security for the performance of their duties. Nothing stated herein is intended
to detract from the protection accorded to Trustees by Ohio Revised Code
Sections 1746.08 and 1701.59, as amended from time to time.
SECTION 6.3 INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder or
former Shareholder shall be charged or held to be personally liable for any
obligation or liability of the Trust solely by reason of being or having been a
Shareholder and not because of such Shareholder's acts or omissions or for some
other reason, the Trust (upon proper and timely request by the Shareholder)
shall assume the defense against such charge and satisfy any judgment thereon,
and the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or in the case of a corporation or
other entity, its corporate or other general successor) shall be entitled out of
the assets of the Trust estate to be held harmless from and indemnified against
all loss and expense arising from such liability.
SECTION 6.4 INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. Subject to and
except as otherwise provided in the Securities Act of 1933, as amended, and the
1940 Act, the Trust shall indemnify each of its Trustees and officers, including
persons who serve at the Trust's request as directors, officers or trustees of
another organization in which the Trust has any interest as a shareholder,
creditor or otherwise (hereinafter referred to as a "Covered Person") to the
fullest extent now or hereafter permitted by law against all liabilities,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person in connection with
the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or legislative body, in
which such Covered Person may be or may have been involved as a party or
otherwise or with which such person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Trustee or
officer, director or trustee, and except that no Covered Person shall be
indemnified against any liability to the Trust or its Shareholders to which such
Covered Person would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office.
SECTION 6.5 ADVANCES OF EXPENSES. The Trust shall advance attorneys'
fees or other expenses incurred by a Covered Person in defending a proceeding to
the full extent permitted by the Securities Act of 1933, as amended, the 1940
Act, and Ohio Revised Code Chapter 1707, as amended. In the event any of these
laws conflict with Ohio Revised Code Section 1701.13(E), as amended, these laws,
and not Ohio Revised Code Section 1701.13(E), shall govern.
SECTION 6.6 INDEMNIFICATION NOT EXCLUSIVE, ETC. The right of
indemnification provided by this Article VI shall not be exclusive of or affect
any other rights to which any such Covered Person
20
<PAGE>
may be entitled. As used in this Article VI, "Covered Person" shall include such
person's heirs, executors and administrators. Nothing contained in this article
shall affect any rights to indemnification to which personnel of the Trust,
other than Trustees and officers, and other persons may be entitled by contract
or otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of any such person.
SECTION 6.7 LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE VII
-----------
MISCELLANEOUS
-------------
SECTION 7.1 DURATION AND TERMINATION OF TRUST. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The Trust
may be terminated at any time by a majority of the Trustees then in office
subject to a favorable vote of a majority of the outstanding voting Shares, as
defined in the 1940 Act, of each Series voting separately by Series.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with the
provisions of subsection (d) of Section 4.2.
SECTION 7.2 REORGANIZATION. The Trustees may sell, convey and transfer
the assets of the Trust, or the assets belonging to any one or more Series, to
another trust, partnership, association or corporation organized under the laws
of any state of the United States, or to the Trust to be held as assets
belonging to another Series of the Trust, in exchange for cash, shares or other
securities (including, in the case of a transfer to another Series of the Trust,
Shares of such other Series) with such transfer being made subject to, or with
the assumption by the transferee of, the liabilities belonging to each Series
the assets of which are so transferred; provided, however, that if shareholder
approval is required by the 1940 Act, no assets belonging to any particular
Series shall be so transferred unless the terms of such transfer shall have
first been approved at a meeting called for the purpose by the affirmative vote
of the holders of a majority of the outstanding voting Shares, as defined in the
1940 Act, of that Series. Following such transfer, the Trustees shall distribute
such cash, shares or other securities (giving due effect to the assets and
liabilities belonging to and any other differences among the various Series the
assets belonging to which have so been transferred) among the Shareholders of
the Series the assets belonging to which have been so transferred; and if all of
the assets of the Trust have been so transferred, the Trust shall be terminated.
SECTION 7.3 INCORPORATION. With the approval of the holders of the
majority of the Shares outstanding and entitled to vote, the Trustees may cause
to be organized or assist in organizing a corporation or corporations under the
laws of any jurisdiction or any other trust, partnership,
21
<PAGE>
association or other organization to take over all of the Trust property or to
carry on any business in which the Trust shall directly or indirectly have any
interest, and to sell, convey and transfer the Trust property to any such
corporation, trust, association or organization in exchange for the shares or
securities thereof or otherwise, and to lend money to, subscribe for the shares
or securities of, and enter into any contracts with any such corporation, trust,
partnership, association or organization, or any corporation, partnership,
trust, association or organization in which the Trust holds or is about to
acquire shares or any other interest. The Trustees may also cause a merger or
consolidation between the Trust or any successor thereto and any such
corporation, trust, partnership, association or other organization if and to the
extent permitted by law, as provided under the law then in effect. Unless
otherwise required by applicable law, nothing contained herein shall be
construed as requiring approval of Shareholders for the Trustees to organize or
assist in organizing one or more corporations, trusts, partnerships,
associations or other organizations and selling, conveying or transferring a
portion of the Trust Property to such organizations or entities.
SECTION 7.4 AMENDMENTS. 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, Trustee
or officer, employee, or any agent of the Trust or repeal the prohibition of
assessment upon the Shareholders without the express consent of each
Shareholder, Trustee, officer, or agent of the Trust involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether or not related
to the rights of Shareholders) may be amended at any time by an instrument in
writing signed by a majority of the then Trustees (or by an officer of the Trust
pursuant to the vote of a majority of such Trustees), when authorized so to do
by the vote in accordance with subsection (e) of Section 4.2 of Shareholders
holding a majority of the Shares entitled to vote, except that amendments either
(a) establishing and designating any new Series of Shares not established and
designated in Section 4.2, or any Class or (b) having the purpose of changing
the name of the Trust or the name of any Shares theretofore established and
designated or of supplying any omission, curing any ambiguity or curing,
correcting or supplementing any provision hereof which is internally
inconsistent with any other provision hereof or which is defective or
inconsistent with the 1940 Act or with the requirements of the Internal Revenue
Code and applicable regulations for the Trust's obtaining the most favorable
treatment thereunder available to regulated investment companies, shall not
require authorization by Shareholder vote. Subject to the foregoing, any such
amendment shall be effective as provided in the instrument containing the terms
of such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a certificate (which
may be a part of such instrument) executed by a Trustee or officer of the Trust
to the effect that such amendment has been duly adopted.
SECTION 7.5 FILING OF COPIES; REFERENCES; HEADINGS. The original or a
copy of this instrument and of each amendment hereto shall be kept at the office
of the Trust where it may be inspected by any Shareholder. A copy of this
instrument and of each amendment hereto shall be filed by the Trust with the
Secretary of the State of Ohio, as well as any other governmental office where
such filing may from time to time be required, but the failure to make any such
filing shall not impair the effectiveness of this instrument or any such
amendment. Anyone dealing with the Trust may rely on a certificate by an officer
of the Trust as to whether or not any such amendments have been made, as to the
identities of the Trustees and officers, and as to any matters in connection
with the Trust
22
<PAGE>
hereunder; and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or of
any such amendments. In this instrument and in any such amendment, references to
this instrument, and all expressions like "herein," "hereof" and "hereunder"
shall be deemed to refer to this instrument as a whole as the same may be
amended or affected by any such amendments. The masculine gender shall include
the feminine and neuter genders. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
SECTION 7.6 APPLICABLE LAW. This Declaration of Trust is created under
and is to be governed by and construed and administered according to the laws of
the State of Ohio, as the same may be amended from time to time. The Trust shall
be of the type referred to in Section 1746.01 of the Ohio Revised Code, and
without limiting the provisions hereof, the Trust may exercise all powers which
are ordinarily exercised by such a trust.
SECTION 7.7 COUNTERPARTS. This Declaration of Trust may be
simultaneously executed in several counterparts, each of which shall be deemed
to be an original, and such counterparts, together, shall constitute one and the
same instrument, which shall be sufficiently evidenced by any such original
counterpart.
SECTION 7.8 RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who, according to the records of the Trust, appears to be a Trustee
hereunder, or a duly elected Secretary or Assistant Secretary of the Trust,
certifying to: (a) the number or identity of Trustees or Shareholders, (b) the
due authorization of the execution of any instrument or writing, (c) the form of
any vote passed at a meeting of Trustees or Shareholders, (d) the fact that the
number of Trustees or Shareholders present at any meeting or executing any
written instrument satisfies the requirements of this Declaration of Trust, (e)
the form of any Bylaws adopted by or the identity of any officers elected by the
Trustees, or (f) the existence of any fact or facts which in any manner relate
to the affairs of the Trust, shall be conclusive evidence as the matters so
certified in favor of any person dealing with Trustees and their successors.
SECTION 7.9 PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS. (a) The
provisions of this Declaration of Trust, are severable, and if the Trustees
shall determine, with the advice of counsel, that any of such provisions is in
the conflict with the 1940 Act, the regulated investment company provisions of
the Internal Revenue Code or other applicable laws and regulations, the
conflicting provisions shall be deemed never to have constituted a part of this
Declaration of Trust, provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such determination.
(b) If any provisions of this Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
23
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand for
himself or herself and his or her assigns, as of the day and year first above
written.
/s/ James I. Ladge
COMMONWEALTH OF MASSACHUSETTS )
) ss: Norfolk
CITY OF BOSTON )
Before me, a Notary Public in and for said county and state, personally
appeared the above named James I. Ladge who acknowledged that he or she did sign
the foregoing instrument and that the same is her free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on this 31st day of October, 2000.
/s/ Michele Dawn Abbruzzese
Notary Public
My Commission Expires: 3/25/05
24
<PAGE>
THE APPLETON FUNDS
------------------
AGREEMENT AND DECLARATION OF TRUST
----------------------------------
PAGE
----
ARTICLE I. NAME AND DEFINITIONS................................... 1
----------
Section 1.1 Name................................................... 1
Section 1.2 Definitions............................................ 1
(a) "Trust"........................................... 1
(b) "Trustees"........................................ 1
(c) "Shares".......................................... 1
(d) "Series".......................................... 1
(e) "Shareholder"..................................... 2
(f) "1940 Act"........................................ 2
(g) "Commission"...................................... 2
(h) "Declaration of Trust"............................ 2
(i) "Bylaws".......................................... 2
ARTICLE II. PURPOSE OF TRUST....................................... 2
-----------
ARTICLE III. THE TRUSTEES........................................... 2
------------
Section 3.1 Number, Designation, Election, Term, etc............... 2
(a) Initial Trustee................................... 2
(b) Number............................................ 2
(c) Term.............................................. 2
(d) Resignation and Retirement........................ 3
(e) Removal........................................... 3
(f) Vacancies......................................... 3
(g) Effect of Death, Resignation, etc................. 4
(h) No Accounting..................................... 4
(i) Meetings.......................................... 4
(j) Officers.......................................... 5
(k) Bylaws............................................ 5
Section 3.2 Powers of the Trustees................................. 5
(a) Investments....................................... 6
(b) Disposition of Assets............................. 6
(c) Ownership Powers.................................. 6
- i -
<PAGE>
(d) Subscription...................................... 6
(e) Form of Holding................................... 6
(f) Reorganization, etc............................... 6
(g) Voting Trusts, etc................................ 6
(h) Compromise........................................ 7
(i) Partnerships, etc................................. 7
(j) Borrowing and Security............................ 7
(k) Guarantees, etc................................... 7
(l) Insurance......................................... 7
(m) Pensions, etc..................................... 7
(n) Disposition of Shares............................. 7
Section 3.3 Certain Contracts...................................... 8
(a) Advisory.......................................... 8
(b) Administration.................................... 8
(c) Distribution...................................... 8
(d) Custodian and Depository.......................... 8
(e) Transfer and Dividend Disbursing Agency........... 9
(f) Shareholder Servicing............................. 9
(g) Legal, Accounting, Taxes and Other................ 9
Section 3.4 Payment of Trust Expenses and Compensation
of Trustees............................................ 10
Section 3.5 Ownership of Assets of the Trust....................... 10
ARTICLE IV. SHARES................................................. 10
-----------
Section 4.1 Description of Shares.................................. 10
Section 4.2 Establishment and Designation of Series................ 12
(a) Assets Belonging to Series........................ 12
(b) Liabilities Belonging to Series................... 12
(c) Dividends......................................... 13
(d) Liquidation....................................... 13
(e) Voting............................................ 14
(f) Redemption by Shareholder......................... 14
(g) Redemption by Trust............................... 15
(h) Net Asset Value................................... 15
(i) Transfer.......................................... 15
(j) Equality.......................................... 16
(k) Fractions......................................... 16
(l) Conversion Rights................................. 16
- ii -
<PAGE>
Section 4.3 Ownership of Shares.................................... 16
Section 4.4 Investments in the Trust............................... 16
Section 4.5 No Preemptive Rights................................... 17
Section 4.6 Status of Shares and Limitation of Personal Liability.. 17
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS............... 17
----------
Section 5.1 Voting Powers.......................................... 17
Section 5.2 Meetings............................................... 17
Section 5.3 Record Dates........................................... 18
Section 5.4 Quorum and Required Vote............................... 18
Section 5.5 Action by Written Consent.............................. 18
Section 5.6 Inspection of Records.................................. 19
Section 5.7 Additional Provisions.................................. 19
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION............... 19
-----------
Section 6.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice......................................... 19
Section 6.2 Trustee's Good Faith Action; Expert Advice;
No Bond or Surety...................................... 19
Section 6.3 Indemnification of Shareholders........................ 20
Section 6.4 Indemnification of Trustees, Officers, etc............. 20
Section 6.5 Advances of Expenses................................... 20
Section 6.6 Indemnification Not Exclusive, etc..................... 21
Section 6.7 Liability of Third Persons Dealing with Trustees....... 21
- iii -
<PAGE>
ARTICLE VII. MISCELLANEOUS.......................................... 21
------------
Section 7.1 Duration and Termination of Trust...................... 21
Section 7.2 Reorganization......................................... 21
Section 7.3 Incorporation.......................................... 22
Section 7.4 Amendments............................................. 22
Section 7.5 Filing of Copies; References; Headings................. 22
Section 7.6 Applicable Law......................................... 23
Section 7.7 Counterparts........................................... 23
Section 7.8 Reliance by Third Parties.............................. 23
Section 7.9 Provisions in Conflict with Law or Regulations......... 23
- iv -
