As filed with the Securities and Exchange Commission on November 5, 1998
Registration Nos. 811-3641/2-80455
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [ ]
Pre-Effective Amendment No. [ ]
Post-Effective Amendment No. 23 [ X ]
and/or
REGISTRATION STATEMENT UNDER
THE INVESTMENT COMPANY ACT OF 1940
Amendment No. 25 [ X ]
(Check appropriate box or boxes)
CONSECO SERIES TRUST
(Exact Name of Registrant as Specified in Charter)
11815 N. Pennsylvania Street, Carmel, Indiana 46032
(Address of Principal Executive Office) (Zip Code)
Registrant's Telephone Number, including Area Code (317) 817-6300
William P. Latimer, Esq.
Conseco Series Trust
11815 N. Pennsylvania Street
Carmel, Indiana 46032
(Name and Address of Agent for Service)
With a copy to:
Donald Smith, Esq.
Kirkpatrick & Lockhart
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036-1800
Approximate date of proposed public Offering: As soon as practicable following
the effective date of this Registration Statement.
It is proposed that this filing will become effective (check appropriate space):
X immediately upon filing pursuant to paragraph (b) of Rule 485
------
______ on [date] pursuant to paragraph (b) of Rule 485
----
______ 60 days after filing pursuant to paragraph (a) (1) of Rule 485
______ on [date] pursuant to paragraph (a) (1) of Rule 485
------
______ 75 days after filing pursuant to paragraph (a) (2) of Rule 485
______ 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
<PAGE>
Part C
(a) Exhibits:
(1) Amended Declaration of Trust dated June 10, 1983 filed herewith.
Amendment to Amended Declaration of Trust dated December 30, 1983
filed herewith.
Amendment to Amended Declaration of Trust dated August 3, 1992
filed herewith.
(2) By-Laws, filed herewith.
(3) Not Applicable.
(4) Not Applicable.
(5) Investment Advisory Agreements filed herewith.
(6) Not Applicable.
(7) Not Applicable.
(8) Custodian Agreement filed herewith.
(9) Not Applicable.
(10) Consent and Opinion of Counsel incorporated by reference to Exhibit 10
to the Post-Effective Amendment No. 22 to the Registration Statement on
Form N-1A (file No. 2-80455) May 1, 1998.
(11) Consent of Independent Accountants incorporated by reference to Exhibit
11 to the Post-Effective Amendment No. 22 to the Registration Statement
on Form N-1A (file No. 2-80455) May 1, 1998.
(12) Not Applicable.
(13) Not Applicable.
(14) Not Applicable.
(15) Not Applicable.
(16) Not Applicable.
(27) Financial Data Schedule incorporated by reference to Exhibit 27 to the
Post-Effective Amendment No. 22 to the Registration Statement on
Form N-1A (file No. 2-80455) May 1, 1998.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant certifies that it meets all of
the requirements for effectiveness of this Registration Statement pursuant to
Rule 485(b) under the Securities Act of 1933 and has duly caused the
Registration Statement to be signed on its behalf by the undersigned, thereto
duly authorized, in the City of Carmel and State of Indiana on the 5th day of
November, 1998.
CONSECO SERIES TRUST
By: /S/ MAXWELL E. BUBLITZ
----------------------
Maxwell E. Bublitz
President
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, this Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
--------- ----- ----
/S/ MAXWELL E. BUBLITZ* President November 5, 1998
- ----------------------- (Principal Executive Officer)
Maxwell E. Bublitz
/S/ WILLIAM P. DAVES, JR.* Chairman of the Board, November 5, 1998
- --------------------------
William P. Daves, Jr. and Trustee
/S/ HAROLD W. HARTLEY* Trustee November 5, 1998
- ----------------------
Harold W. Hartley
/S/ R. JAN LECROY* Trustee November 5, 1998
- ------------------
R. Jan LeCroy
/S/ JESSE H. PARRISH* Trustee November 5, 1998
- ---------------------
Jesse H. Parrish
/S/ JAMES S. ADAMS* Treasurer November 5, 1998
- ------------------- (Principal Financial and
James S. Adams Accounting Officer)
*/S/ WILLIAM P. LATIMER Attorney-in-fact
William P. Latimer
</TABLE>
AMENDED
DECLARATION OF TRUST
BANKERS NATIONAL SERIES TRUST
June 10, 1983
<PAGE>
TABLE OF CONTENTS
Page
RECITALS................................................................
ARTICLE I
THE TRUST
SECTION 1.1 Name.......................................................
SECTION 1.2 Location...................................................
SECTION 1.3 Nature of Trust............................................
SECTION 1.4 Definitions................................................
ARTICLE II
POWERS OF TRUSTEES
SECTION 2.1 General....................................................
SECTION 2.2 Investments................................................
SECTION 2.4 Disposition of Assets......................................
SECTION 2.5 Taxes......................................................
SECTION 2.6 Rights as Holder of Securities.............................
SECTION 2.7 Delegation; Committees.....................................
SECTION 2.8 Collection.................................................
SECTION 2.9 Expenses...................................................
SECTION 2.10 Borrowing..................................................
SECTION 2.11 Deposits...................................................
SECTION 2.12 Allocation.................................................
SECTION 2.13 Valuation..................................................
SECTION 2.14 Fiscal Year................................................
SECTION 2.15 Concerning the Trust and Certain Affiliates................
SECTION 2.16 Power to Contract..........................................
SECTION 2.17 Insurance..................................................
SECTION 2.18 Pension and Other Plans....................................
SECTION 2.19 Seal.......................................................
SECTION 2.20 Charitable Contributions...................................
SECTION 2.21 Indemnification............................................
SECTION 2.22 Remedies...................................................
SECTION 2.23 Separate Accounting........................................
ii
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SECTION 2.24 Further Powers............................................
iii
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE III
ADVISER AND DISTRIBUTOR
SECTION 3.1 Appointment................................................
SECTION 3.2 Provisions of Agreement....................................
ARTICLE IV
INVESTMENTS
SECTION 4.1 Statement of Investment Objectives and
Policies...................................................
SECTION 4.2 Restrictions...............................................
SECTION 4.3 Percentage Restrictions....................................
SECTION 4.4 Amendment of Investment Objectives and
Policies and of Investment Limitations.....................
ARTICLE V
LIMITATIONS OF LIABILITY
SECTION 5.1 Liability to Third Persons.................................
SECTION 5.2 Liability to Trust or to Shareholders......................
SECTION 5.3 Indemnification............................................
SECTION 5.4 Surety Bonds...............................................
SECTION 5.5 Apparent Authority.........................................
SECTION 5.6 Recitals...................................................
SECTION 5.7 Reliance on Experts, Etc...................................
SECTION 5.8 Liability Insurance........................................
ARTICLE VI
CHARACTERISTICS OF SHARES
SECTION 6.1 General....................................................
SECTION 6.2 Classes of Stock...........................................
SECTION 6.3 Evidence of Share Ownership................................
SECTION 6.4 Death of Shareholders......................................
SECTION 6.5 Repurchase of Shares.......................................
SECTION 6.6 Trustees as Shareholders................ ..................
SECTION 6.7 Redemption and Stop Transfers for Tax
Purposes; Redemption to Maintain Constant
Net Asset Value............................................
SECTION 6.8 Information from Shareholders..............................
iv
<PAGE>
TABLE OF CONTENTS
Page
SECTION 6 (continued)
SECTION 6.9 Redemptions................................................
SECTION 6.10 Suspension of Redemption; Postponement
of Payment.................................................
ARTICLE VII
RECORD AND TRANSFER OF SHARES
SECTION 7.1 Share Register.............................................
SECTION 7.2 Transfer Agent.............................................
SECTION 7.3 Owner of Record............................................
SECTION 7.4 Transfers of Shares........................................
SECTION 7.5 Limitation of Fiduciary Responsibility.....................
SECTION 7.6 Notices....................................................
ARTICLE VIII
SHAREHOLDERS
SECTION 8.1 Meetings of Shareholders...................................
SECTION 8.2 Quorums....................................................
SECTION 8.3 Notice of Meetings.........................................
SECTION 8.4 Record Date for Meetings...................................
SECTION 8.5 Proxies, Etc...............................................
SECTION 8.6 Reports....................................................
SECTION 8.7 Inspection of Records......................................
SECTION 8.8 Shareholder Action By Written Consent......................
SECTION 8.9 Voting Rights of Shareholders..............................
ARTICLE IX
TRUSTEES
SECTION 9.1 Number and Qualification...................................
SECTION 9.2 Term and Election..........................................
SECTION 9.3 Resignation and Removal....................................
SECTION 9.4 Vacancies..................................................
SECTION 9.5 Meetings...................................................
SECTION 9.6 Officers...................................................
SECTION 9.7 By-laws....................................................
v
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE X
DISTRIBUTIONS TO SHAREHOLDERS AND
DETERMINATION OF NET ASSET VALUE AND NET INCOME
SECTION 10.1 General....................................................
SECTION 10.2 Retained Earnings..........................................
SECTION 10.3 Source of Distributions....................................
SECTION 10.4 Net Asset Value............................................
SECTION 10.5 Power to Modify Valuation Procedures.......................
ARTICLE XI
CUSTODIAN
SECTION 11.1 Appointment and Duties.....................................
SECTION 11.2 Central Certificate System.................................
ARTICLE XII
RECORDING OF DECLARATION OF TRUST
SECTION 12.1 Recording..................................................
ARTICLE XIII
AMENDMENT OR TERMINATION OF TRUST
SECTION 13.1 Amendment or Termination...................................
SECTION 13.2 Power to Effect Reorganization.............................
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Governing Law..............................................
SECTION 14.2 Counterparts...............................................
SECTION 14.3 Reliance by Third Parties..................................
SECTION 14.4 Provisions in Conflict with Law or
Regulations................................................
SECTION 14.5 Section Headings...........................................
vi
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE XV
DURATION OF TRUST
SECTION 15.1 Duration...................................................
vii
<PAGE>
Amended Declaration of Trust
of
BANKERS NATIONAL SERIES TRUST
This Amended Declaration of Trust made the 10th day of June, 1983 by
Richard E. Coleman, Robert M. Graham, Bruce W. Kunzmann, Thomas G. Ferguson, and
John D. Venable, the undersigned Trustees of Bankers National Series Trust.
WITNESSETH:
WHEREAS, the Trustees desire to establish an unincorporated voluntary
association commonly known as a business trust, as described in the provisions
of Chapter 182 of the General Laws of Massachusetts, for the principal purpose
of the investment and reinvestment of funds contributed thereto; and
WHEREAS, the Trustees desire that such trust be a registered open-end
investment company under the Investment Company Act of 1940; and
WHEREAS, the Trustees have acknowledged the receipt of and investment
of One Hundred Thousand ($100,000.00) Dollars by means of an Agreement Governing
Contribution and have agreed to hold, invest, and dispose of the same and any
property acquired or otherwise added thereto as such Trustees as hereinafter
stated; and
WHEREAS, it is proposed that the beneficial interest in the Trust's
assets shall be divided into transferable shares of beneficial interest, which
shall be evidenced by the Share Register maintained by the Trust or its agent,
or, in the discretion of the Trustees, be evidenced by certificates therefor, as
hereinafter provided;
NOW, THEREFORE, the Trustees hereby declare that they will hold all
property of every type and description which they are acquiring or may hereafter
acquire as such Trustees, together with the proceeds thereof, in trust, to
manage and dispose of the same for the benefit of the holders of record from
time to time of the Shares being
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issued and to be issued hereunder and in the manner and subject to the
provisions hereof.
ARTICLE I
THE TRUST
1.1 NAME. The name of the trust created by this Declaration of Trust
shall be Bankers National Series Trust (hereinafter called the "Trust") and so
far as may be practicable the Trustees shall conduct the Trust's activities,
execute all documents and sue or be sued under that name, which name (and the
word "Trust" wherever used in this Declaration of Trust, except where the
context otherwise requires) shall refer to the Trustees in their capacity as
Trustees, and not individually or personally and shall not refer to the
officers, agents, employees or Shareholders of the Trust or of such Trustees.
Should the Trustees determine that the use of such name is not practicable,
legal or convenient, they may use such other designation or they may adopt such
other name for the Trust as they deem proper and the Trust may hold property and
conduct its activities under such designation or name.
1.2 LOCATION. The Trust shall maintain a registered office in Boston,
Massachusetts, and may maintain such other offices or places of business as the
Trustees may from time to time determine.
1.3 NATURE OF TRUST. The Trust shall be of the type commonly termed a
"business" trust. The Trust is not intended to be, shall not be deemed to be and
shall not be treated as, a general partnership, limited partnership, joint
venture, corporation or joint stock company. The Shareholders shall be
beneficiaries and their relationship to the Trustees shall be solely in that
capacity in accordance with the rights conferred upon them hereunder. The Trust
is intended to have the status of a registered open-end investment company under
the Investment Company Act of 1940 and of a "regulated investment company" as
that term is defined in Section 851 of the Internal Revenue Code of 1954, and
this Declaration of Trust and all actions of the Trustees hereunder shall be
construed in accordance with such intent.
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1.4 DEFINITIONS. As used in this Declaration of Trust, the following
terms shall have the following meanings unless the context hereof otherwise
requires:
"1940 Act" shall mean the Investment Company Act of 1940, as
amended from time to time.
"Adviser" and "Distributor" shall mean any Person or Persons
appointed, employed or contracted with by the Trustee under
the applicable provisions of Section 3.1 hereof.
"Affiliate" shall have the same meaning as the term Affiliated
Person under the 1940 Act.
"Assignment," "Commission," and "Prospectus" shall have the
meanings given them in the 1940 Act.
"Declaration of Trust" shall mean this Declaration of Trust as
amended, restated, or modified from time to time. References
in this Declaration of Trust to "Declaration," "hereof,"
"herein," "hereby" and "hereunder" shall be deemed to refer to
the Declaration of Trust and shall not be limited to the
particular text, article, or section in which such words
appear.
"Person" shall mean and include individuals, corporations,
limited partnerships, general partnerships, joint stock
companies or associations, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts,
business trusts or other entities whether or not legal
entities and governments and agencies and political
subdivisions thereof.
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"Portfolio" shall mean any subdivision of the Trust so
designated as such by the Trustees.
"Securities" shall mean any stock, shares, voting trust
certificates, bonds, debentures, notes, or other evidences of
indebtedness, secured or unsecured, convertible, subordinated
or otherwise or, in general, any instruments commonly known as
"securities" or any certificates of interest, shares or
participations in temporary or interim certificates for,
guarantees of, or any right to subscribe to, purchase or
acquire any of the foregoing.
"Shareholders" shall mean, as of any particular time, all
holders of record of outstanding Shares at such time.
"Shares" shall mean the shares of beneficial interest of the
Trust as described in Article VI.
"Trust Property" shall mean, as of any particular time, any
and all property, real, personal, or otherwise, tangible or
intangible, which is transferred, conveyed or paid to the
Trust or Trustees and all income, profits and gains therefrom
and which at such time is owned or held by, or for the account
of, the Trust or the Trustees.
ARTICLE II
POWERS OF TRUSTEES
2.1 GENERAL. The Trustees shall have, without other or further
authorization, full, exclusive and absolute power, control and authority over
the Trust Property and over the business of the Trust to the same extent as if
the Trustees were the sole and absolute owners of the Trust Property and
business in their own right, and with such powers of
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delegation as may be permitted by this Declaration of Trust. The Trustees may do
and perform such acts and things as in their sole judgment and discretion are
necessary and proper for conducting the business and affairs of the Trust or
promoting the interests of the Trust and the Shareholders. The enumeration of
any specific power or authority herein shall not be construed as limiting the
aforesaid power or authority or any specific power or authority. The Trustees
shall have the power to enter into commitments to make any investment, purchase
or acquisition, or to exercise any power authorized by this Declaration of
Trust. Such powers of the Trustees may be exercised without order of or resort
to any court.
2.2 INVESTMENTS. The Trustees shall have power, subject in all respects
to Article IV hereof,
(a) to conduct, operate and carry on the business of an investment
company; and
(b) for such consideration as they may deem proper, to subscribe for,
invest in, reinvest in, purchase or otherwise acquire, hold,
pledge, sell, assign, transfer, exchange, distribute or otherwise
deal in or dispose of negotiable or nonnegotiable instruments,
obligations, evidences of indebtedness, bankers' acceptances,
certificates of deposit or indebtedness, commercial paper,
securities subject to repurchase agreements and other money market
securities, including, without limitation, those issued, guaranteed
or sponsored by the United States Government or its agencies or
instrumentalities, or international instrumentalities, or by any of
the several states of the United States of America or their
political subdivisions, agencies or instrumentalities, or any bank
or savings institution, or by any corporation organized under the
laws of the United States or of any state, territory or possession
thereof, or by corporations organized under foreign laws;
marketable straight debt securities; securities (payable in U.S.
dollars) of, or guaranteed by, the government of Canada or of a
Province of Canada; common stock, securities
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convertible into common stock, purchase rights, warrants and
options; and nothing herein shall be construed to mean the Trustees
shall not have the foregoing powers with respect to any Securities
in which the Trust may invest in accordance with Article IV hereof.
In the exercise of their powers, the Trustees shall not be limited,
except as otherwise provided hereunder, to investing in Securities
maturing before the possible termination of the Trust, nor shall
the Trustees be limited by any law now or hereafter in effect
limiting the investments which may be held or retained by trustees
or other fiduciaries, but they shall have full authority and power
to make any and all investments within the limitations of this
Declaration of Trust, that they, in their absolute discretion,
shall determine, and without liability for loss, even though such
investments shall be of a character or in amount not considered
proper for the investment of trust funds.
2.3 LEGAL TITLE. Legal title to all the Trust Property shall be vested
in the Trustees as joint tenants and held by and transferred to the Trustees,
except that the Trustees shall have power to cause legal title to any Trust
Property to be held by, or in the name of, one or more of the Trustees with
suitable reference to their trustee status, or in the name of the Trust, or in
the name of any other Person as nominee, on such terms, in such manner and with
such powers as the Trustees may determine, so long as in their judgment the
interest of the Trust is adequately protected.
The right, title and interest of the Trustees in and to the Trust
Property shall vest automatically in all persons who may hereafter become
Trustees upon their due election and qualification without any further act. Upon
the resignation, removal or death of a Trustee, he (and in the event of his
death, his estate) shall automatically cease to have any right, title or
interest in or to any of the Trust Property, and the right, title and interest
of such Trustee in and to the Trust Property shall vest automatically in the
remaining Trustees without any further act. Such vesting and
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cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
2.4 DISPOSITION OF ASSETS. Subject in all respects to Article IV
hereof, the Trustees shall have power to sell, lease, exchange or otherwise
dispose of or grant options with respect to any and all Trust Property free and
clear of any and all trusts, at public or private sale, for cash or on terms,
without advertisement, and subject to such restrictions, stipulations,
agreements and reservations as they shall deem proper, and to execute and
deliver any deed or other instrument in connection with the foregoing. The
Trustees shall also have the power, subject in all respects to Article IV
hereof, to:
(a) rent, lease or hire from others for terms which may extend beyond
the termination of this Declaration of Trust any property or rights
to property, real, personal or mixed, tangible or intangible, and,
except for real property, to own, manage, use and hold such
property and such rights;
(b) give consents and make contracts relating to Trust Property or its
use;
(c) grant security interests in or otherwise encumber Trust Property in
connection with borrowings; and
(d) release any Trust Property.
2.5 TAXES. The Trustees shall have power to pay all taxes or
assessments, of whatever kind or nature, imposed upon or against the Trust or
the Trustees in connection with the Trust Property or upon or against the Trust
Property or income or any part thereof, to settle and compromise disputed tax
liabilities and, for the foregoing purposes, to make such returns and do all
other such acts and things as may be deemed by the Trustees to be necessary or
desirable.
2.6 RIGHTS AS HOLDER OF SECURITIES. The Trustees shall have the power
to exercise all the rights, powers and privileges appertaining to the ownership
of all or any Securities or other property forming part of the Trust Property to
the same extent that any individual might, and,
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without limiting the generality of the foregoing, to vote or give any consent,
request or notice or waive any notice either in person or by proxy or power of
attorney with or without power of substitution, to one or more Persons, which
proxies and powers of attorney may be for meetings or action generally or for
any particular meetings or action, and may include the exercise of discretionary
powers.
2.7 DELEGATION; COMMITTEES. The Trustees shall have power, consistent
with their continuing exclusive authority over the management of the Trust, the
conduct of its affairs and the management and disposition of Trust Property, to
delegate from time to time to such one or more of their number (who may be
designated as constituting a Committee of the Trustees) or to officers,
employees or agents of the Trust the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the Trustees or
as their attorney or attorneys or otherwise as the Trustees may from time to
time deem expedient.
2.8 Collection. The Trustees shall have power to collect, sue for,
receive and receipt for all sums of money or other property due to the Trust, to
consent to extensions of the time for payment, or to the renewal of any
Securities or obligations; to engage or intervene in, prosecute, defend,
compound, compromise, abandon or adjust by arbitration or otherwise any actions,
suits, proceedings, disputes, claims, demands or things relating to the Trust
Property; to foreclose any Security or other instrument securing any notes,
debentures, bonds, obligations or contracts, by virtue of which any sums of
money are owed to the Trust; to exercise any power of sale held by them, and to
convey good title thereunder free of any and all trusts, and in connection with
any such foreclosure or sale, to purchase or otherwise acquire title to any
property; to be parties to reorganization and to transfer to and deposit with
any corporation, committee, voting trustee or other Person any Securities or
obligations of any corporation, trust, association or other organization, the
Securities of which form a part of the Trust Property, for the purpose of any
reorganization of any such corporation, trust, association or other
organization, or otherwise, to participate in any arrangement for enforcing or
protecting the interests of the Trustees as the owners or holders of
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such Securities of obligations and to pay any assessment levied in connection
with such reorganization or arrangement; to extend the time (with or without
security) for the payment or delivery of any debts or property and to execute
and enter into releases, agreements and other instruments; and to pay or satisfy
any debts or claims upon any evidence that the Trustees shall think sufficient.
2.9 EXPENSES. The Trustees shall have power to incur and pay any
charges or expenses which, in the opinion of the Trustees, are necessary or
incidental to or proper for carrying out any of the purposes of this Declaration
of Trust, and to reimburse others for the payment therefor, and to pay
appropriate compensation or fees from the funds of the Trust to themselves as
Trustees and to Persons with whom the Trust has contracted or transacted
business. The Trustees shall fix the compensation of all officers, employees and
Trustees. The Trustees may be paid reasonable compensation for their general
services as Trustees and officers hereunder, and the Trustees may pay themselves
or any one or more of themselves such compensation for special services,
including legal services, as they in good faith may deem reasonable and
reimbursement for expenses reasonably incurred by themselves or any one or more
of themselves on behalf of the Trust. Each Portfolio must buy the expenses
directly attributable to it. However, to the extent that the Trustees can effect
cost savings by the sharing of expenses they are authorized to do so. Such
general administrative's expenses will be allocated on the basis of the asset
size of the respective Portfolios.
2.10 BORROWING. The Trustees shall have power to borrow money only to
the extent, for the purposes and in the manner authorized by Article IV hereof.
2.11 DEPOSITS. The Trustees shall have power to deposit any monies or
Securities included in the Trust Property with one or more banks, trust
companies or other banking institutions whether or not such deposits will draw
interest. Such deposits are to be subject to withdrawal in such manner as the
Trustees may determine, and the Trustees shall have no responsibility for any
loss which may occur by reason of the failure of the bank, trust company or
other
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banking institution with whom the monies or Securities have been deposited.
2.12 ALLOCATION. The Trustees shall have power to determine whether
monies or other assets received by the Trust shall be charged or credited to
income or capital or allocated between income and capital, including the power
to amortize or fail to amortize any part or all of any premium or discount, to
treat any part of all the profit resulting from the maturity or sale of any
asset, whether purchased at a premium or at a discount, as income or capital or
apportion the same between income and capital, to apportion the sale price of
any asset between income and capital and to determine in what manner any
expenses or disbursements are to be borne as between income and capital, whether
or not in the absence of the power and authority conferred by this Section 2.12,
such assets would be regarded as income or as capital or such expense or
disbursement would be charged to income or to capital; to treat any dividend or
other distribution on any investment as income or capital or apportion the same
between income and capital; to provide or fail to provide reserves for
depreciation, amortization or obsolescence in respect of any Trust Property in
such amounts and by such methods and for such purposes as they shall determine,
and to allocate to the share of beneficial interest account less than all of the
consideration received for Shares (but not less than the par value thereof) and
to allocate the balance thereof to paid-in capital, all as the Trustees may
reasonably deem proper.
2.13 VALUATION. The Trustees shall have power to determine in good
faith, conclusively, the value of any of the Trust Property and of any services,
Securities, assets or other consideration hereafter to be acquired or disposed
of by the Trust, and to revalue the Trust Property.
2.14 FISCAL YEAR. The Trustees shall have power to determine the fiscal
year of the Trust and the method or form in which its accounts shall be kept
and, from time to time, to change the fiscal year or method or form of accounts.
2.15 CONCERNING THE TRUST AND CERTAIN AFFILIATES.
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(a) The Trust may enter into transactions with any Affiliate of
the Trust or of the Adviser or any Affiliate of any Trustee,
director, officer or employee of the Trust or of the Adviser
if (i)each such transactions has, after disclosure of such
affiliation, been approved or ratified by the affirmative vote
of a majority of the Trustees, including a majority of the
Trustees who are not Affiliates of any Person (other than the
Trust) who is a party to the transaction with the Trust, (ii)
such transaction is, in the opinion of the Trustees, on terms
fair and reasonable to the Trust and the Shareholders and at
least as favorable to them as similar arrangements for
comparable transactions (of which the Trustees have knowledge)
with organizations unaffiliated with the Trust or with the
Person who is a party to the transaction with the Trust, and
(iii) such transaction is in accordance with the 1940 Act or
an exemption granted thereunder.
(b) Except as otherwise provided by this Declaration of Trust and
in the absence of fraud, a contract, act or other transaction,
between the Trust and any other Person, or in which the Trust
is interested, is valid and no Trustee, officer, employee or
agent of the Trust has any liability as a result of entering
into any such contract, act or transaction even though (a) one
or more of the Trustees, officers, employees or agents of the
Trust is directly or indirectly interested in or affiliated
with, or are trustees, partners, directors, employees,
officers or agents of such other Person, or (b) one or more of
the Trustees, officers, employees or agents of the Trust,
individually or jointly with others, is a party or are parties
to, or directly interested in, or affiliated with, such
contract, act of transaction, provided that (i) such interest
or affiliation is disclosed to the Trustees and the Trustees
authorized such contract, act or other transaction by a vote
of a majority of the unaffiliated Trustees, or (ii) such
interest or affiliation is disclosed to the Shareholders, and
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such contract, act or transaction is approved by the
Shareholders.
(c) Any Trustee or officer, employee or agent of the Trust may
acquire, own, hold and dispose of Shares for his individual
account, and may exercise all rights of a holder of such
Shares to the same extent and in the same manner as if he were
not such a Trustee or officer, employee or agent. The Trustees
shall use their best efforts to obtain through the Adviser or
other Personas a continuing and suitable investment program,
consistent with the investment policies and objectives of the
Trust, and the Trustees shall be responsible for reviewing and
approving or rejecting investment opportunities presented by
the Adviser or such other Persons. Any Trustee or officer,
employee or agnet of the Trust may, in his personal capacity,
or in a capacity as trustee, officer, director, stockholder,
partner, member, adviser or empoyee of any Person, have
business interests and engage in business activities in
addition to those relating to the Trust, which intereests and
activities amy be similar to those of the Trust and include
the acquisition, syndication, holding, management, operation
or disposition, of his own account or for the account of such
person, and each Trustee, officer, employee and agent of the
Trust shall be free of any obliation to present to the Trust
any investment oppourtunity which comes to him in any capacity
other than soley as Trustee, officer employee or agent of the
Trust, even if such opportunity is of a character which, if
presented to the Trust, could be taken by the Trust.
Subject to the provisions of Article III hereof, any Trustee
or officer, employee or agent of the trust may be interested
as Trustee, officer, director, stockhoder, partner, member,
adviser or employee of, or otherwise have a direct or indirect
interest in, any Person who may be engaged to render advice or
services to the Trust, and may receive compensation form such
person as well as compensation as Trustee, officer, employee
or agent of the Trust or otherwise hereunder. None of the
activities referred to in this paragraph shall be
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deemed to conflict with his duties and powers as Trustee,
officer, employee or agent of the Trust. To the extent that
any other provision of this Declaration of Trust conflicts
with, or is otherwise contrary to, the provisions of this
Section 2.15 the provisions of this Section shall be deemed
controlling.
2.16 POWER TO CONTRACT. Subject to the provisions of Section 2.7 and
3.1 hereof with respect to delegation of authority by the Trustees, the Trustees
shall have power to appoint, employ or contract with and Person (including one
or more of themselves and any corporation, partnership or trust of which one or
more of them may be an Affiliate, subject to the applicable requirements of
Section 2.15 hereof) as the Trustees may deem necessary or desirable for the
transaction of the business of the Trust, including any Person who, under the
supervision of the Trustees, may, among other things: serve as the Trust's
investment adviser and consultant in connection with policy decisions made by
the Trustees; furnish reports to the Trustees and provide research, economic and
statistical data in connection with the Trust's investments; act as consultants,
accountants, technical advisers, attorneys, brokers, underwriters, corporate
fiduciaries, escrow agents, depositaries, custodians or agents for collection,
insurers or insurance agents, transfer agents or registrars for Shares or in any
other capacity deemed by the Trustees necessary or desirable; investigate,
select, and, on behalf of the Trust, conduct relations with Persons acting in
such capacities and pay appropriate fees to, and enter into appropriate
contracts with, or employ, or retain services performed or to be performed by,
any of them in connection with the investments acquired, sold, or otherwise
disposed of, or committed, negotiated, or contemplated to be acquired, sold or
otherwise disposed of; substitute any other Person for any such Person; act as
attorney-in-fact or agent in the purchase or sale or other disposition of
investments, and in the handling, prosecuting or settling of any claims of the
Trust, including the foreclosure or other enforcement of any lien or security
securing investments; and assist in the performance of such ministerial
functions necessary in the management of the Trust as may be agreed upon with
the Trustees or officers of the Trust.
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2.17 INSURANCE. The Trustees shall have the power to purchase and pay
for, entirely out of Trust Property, insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, investment advisers,
including the Adviser or independent contractors 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 as Shareholder,
Trustee, officer, employee, agent, investment adviser or independent contractor,
including any action taken or omitted that may be determined to constitute
negligence. However, such policies shall not pay or reimburse any director,
officer, investment adviser or principal underwriter for any liability arising
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of duties. Such policies are to set forth a reasonable and fair means
for determining whether payment or reimbursement shall be made.
2.18 PENSION AND OTHER PLANS. The Trustees shall have the power to pay
pensions for faithful service, as deemed appropriate by the Trustees, and to
adopt, establish and carry out pension, profit-sharing, savings, thrift and
other retirement, incentive and benefit plans, trusts and provisions, including,
without limitation, 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.
2.19 SEAL. The Trustees shall have the power to adopt and use a seal
for the Trust, but, unless otherwise required by the Trustees, it shall not be
necessary for the seal to be placed on, and its absence shall not impair the
validity of, any document, instrument or other paper executed and delivered by
or on behalf of the Trust.
2.20 CHARITABLE CONTRIBUTIONS. The Trustees shall have the power to
make donations, irrespective of benefit to the Trust, for the public welfare or
for community fund, hospital, charitable, religious, educational, scientific,
literary, civic or similar purpose and, in time of war or other national
emergency, in aid thereof.
2.21 INDEMNIFICATION. In addition to the mandatory indemnification
provided for in Section 5.3 hereof, the
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Trustees shall have power, to the extent permitted by law, to indemnify or enter
into agreements with respect to indemnification with any Person with whom the
Trust has dealings, including, without limitation, any investment adviser,
including the Adviser, or independent contractor, to such extent as the Trustees
shall determine.
2.22 REMEDIES. Notwithstanding any provision in this Declaration of
Trust, when the Trustees deem that there is a significant risk that an obligor
to the Trust may default or is in default under the terms of any obligation to
the Trust, the Trustees shall have power to pursue any remedies permitted by law
which, in their sole judgment, are in the interests of the Trust, and the
Trustees shall have the power to enter into any investment, commitment or
obligation of the Trust resulting from the pursuit of such remedies as are
necessary or desirable to dispose of property acquired in the pursuit of such
remedies.
2.23 SEPARATE ACCOUNTING. The Trustees shall establish the books and
records for each Portfolio and maintain such records separately as if each
Portfolio were a separate legal entity.
2.24 FURTHER POWERS. The Trustees shall have power to do all such other
matters and things and execute all such instruments as they deem necessary,
proper or desirable in order to carry out, promote or advance the interests of
the Trust although such matters or things are not herein specifically mentioned.
Any determination as to what is in the best interests of the Trust made by the
Trustees in good faith shall be conclusive. In construing the provisions of this
Declaration of Trust, the presumption shall be in favor of a grant of power to
the Trustees. The Trustees will not be required to obtain any court order to
deal with the Trust Property.
ARTICLE III
ADVISER AND DISTRIBUTOR
3.1 APPOINTMENT. The Trustees are responsible for the general
investment policy of the Trust, the distribution of its Shares and for the
general supervision of the business of the Trust conducted by officers, agents,
employees, investment advisers, distributors or independent contractors of the
Trust. However, the Trustees are not required personally to conduct all of the
business of the
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Trust and, consistent with their ultimate responsibility as stated herein, the
Trustees may appoint, employ or contract with an investment adviser (the
"Adviser") and/or a distributor and underwriter for the Trust's Shares (the
"Distributor"), and may grant or delegate such authority to the Adviser and/or
Distributor (pursuant to the terms of Section 2.16 hereof) or to any other
Person the services of whom are obtained by the Adviser or Distributor, as the
Trustees may, in their sole discretion, deem to be necessary or desirable,
without regard to whether such authority is normally granted or delegated by
trustees.
3.2 PROVISIONS OF AGREEMENT. The Trustees shall not enter into any
agreement with the Adviser or Distributor pursuant to the provisions of Section
3.1 hereof unless such agreement is consistent with the provisions of Section 15
of the 1940 Act.
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ARTICLE IV
INVESTMENTS
4.1 STATEMENT OF INVESTMENT OBJECTIVES AND POLICIES. The Trustees
shall be guided in their actions by the Investment Objectives and Policies as
set forth in the most current effective registration statement for the Trust as
filed with the Securities and Exchange Commission. Because the Trust is divided
into separate Portfolios, the Trustees shall supervise the investments and the
recordkeeping for each Portfolio within the Trust as if it was a separate legal
entity. In addition to any other power granted to the Trustees, the Trustees
may, as they deem appropriate, provide for additional Portfolios in a manner
consistent with the Investment Company Act.
4.2 RESTRICTIONS. Notwithstanding anything in this Declaration of Trust
which may be deemed to authorize the contrary, the Trust, with respect to each
Portfolio, shall conduct its affairs in accordance with the Investment
Limitations (Restrictions) as set forth in the most current, effective
registration statement for the Trust as filed with the Securities and Exchange
Commission.
4.3 PERCENTAGE RESTRICTIONS. If the percentage restrictions as set
forth in the Investment Limitation described in Section 4.2 above are adhered
to at the time of each investment, a later increase or decrease in percentage
resulting from a change in the value of the Trust's assets is not a violation
of such investment restrictions.
4.4 AMENDMENT OF INVESTMENT OBJECTIVES AND POLICIES AND OF INVESTMENT
LIMITATIONS. The Investment Objectives and Policies and the Investment
Limitations are deemed to be fundamental policies and may not be changed
without the approval of the holders of a majority of the outstanding voting
shares of each Portfolio affected which, for purpose herein, shall mean the
lesser of (i) 67% of the shares represented at a meeting which more than 50% of
the outstanding shares are represented or (ii) more than 50% of the outstanding
shares. A change in policy affecting only one Portfolio may be effected only
with the approval of a majority of the outstanding shares of such Portfolio.
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ARTICLE V
LIMITATIONS OF LIABILITY
5.1 LIABILITY TO THIRD PERSONS. No Shareholder shall be subject to any
personal liability whatsoever, in tort, contract or otherwise, to any other
Person or Persons in connection with the Trust Property or the affairs of the
Trust; and no Trustee, officer, employee or agent of the Trust shall be subject
to any personal liability whatsoever, in tort, contract or otherwise; to any
other Person or Persons in connection with Trust Property or the affairs of the
Trust, except for that arising from his bad faith, willful misconduct, gross
negligence or reckless disregard of his duties or for his failure to act in good
faith in the reasonable belief that his action was in the best interest of the
Trust; and all such other Persons shall look solely to the Trust Property for
satisfaction of claims of any nature arising in connection with the affairs of
the Trust. If any Shareholder, Trustee, officer, employee or agent, as such, of
the Trust is made a party to any suit or proceedings to enforce any such
liability, he shall not on account thereof be held to any personal liability.
5.2 LIABILITY TO TRUST OR TO SHAREHOLDERS. No Trustee, officer,
employee or agent of the Trust shall be liable to the Trust or to any
Shareholder, Trustee, officer, employee or agent of the Trust for any action or
failure to act (including, without limitation, the failure to compel in any way
any former or acting Trustee to redress any breach of frost) except for his own
bad faith, willful misfeasance, gross negligence or reckless disregard for his
duties.
5.3 INDEMNIFICATION. The Trust shall indemnify and hold each
Shareholder harmless from and against all claims and liabilities, whether they
proceed to judgment or are settled or otherwise brought to a conclusion, to
which such Shareholder may become subject by reason of his being or having been
a Shareholder, and shall reimburse such Shareholder for all legal and other
expenses reasonably incurred by him in connection with any such claim or
liability. The rights accruing to a Shareholder under this Section 5.3 shall not
exclude any other right to which such Shareholder may be lawfully entitled, nor
shall anything herein contained restrict the right of the Trust to
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indemnify or reimburse a Shareholder in any appropriate situation even though
not specifically provided herein; provided, however, that the Trust shall have
no liability to reimburse Shareholders for taxes assessed against them by reason
of their ownership of Shares, nor for any losses suffered by reason of changes
in the market value of Shares.
Each officer, Trustee or agent of the Trust shall be indemnified by the
Trust to the full extent permitted under the General Laws of the State of
Massachusetts and the Investment Company Act of 1940, as amended, except that
such indemnity shall not protect any such person against any liability to the
Trust or any shareholder thereof to which such 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 his office ("disabling
conduct"). Indemnification shall be made when (i) a final decision on the
merits, by a court or other body before whom the proceeding was brought, that
the person to be indemnified was not liable by reason of disabling conduct or,
(2) in the absence of such a decision, a reasonable determination, based upon a
review of the facts, that the person to be indemnified was not liable by reason
of disabling conduct, by (a) the vote of a majority of a quorum of Trustees who
are neither "interested persons" of the company as defined in section 2(a)(19)
of the Investment Company Act of 1940, nor (b) an independent legal counsel in a
written opinion. The Trust may, by vote of a majority of a quorum of Trustees
who are not interested persons, advance attorneys' fees or other expenses
incurred by officers, Trustees, investment advisers or principal underwriting,
in defending a proceeding upon the undertaking by or on behalf of the person to
be indemnified to repay the advance unless it is ultimately determined that he
is entitled to indemnification. Such advance shall be subject to at least one of
the following: (1) the person to be indemnified shall provide a security for his
undertaking, (2) the Trust shall be insured against losses arising by reason of
any lawful advances, or (3) a majority of a quorum of the disinterested,
non-party Trustees of the Trust, or an independent legal counsel in a written
opinion, shall determine, based on a review of readily available facts, that
there is reason to believe that the person to be indemnified ultimately will be
found entitled to indemnification.
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5.4 SURETY BONDS. No Trustee shall, as such, be obligated to give any
bond or surety or other security for the performance of his duties.
5.5 APPARENT AUTHORITY. No purchaser, lender, transfer agent or other
Person dealing with the Trustees or any officer, employee or agent of the Trust
shall be bound to make any inquiry concerning the validity of any transaction
purporting to be made by the Trustees or by such officer, employee or agent or
make inquiry concerning or be liable for the application of money or property
paid, loaned or delivered to or on the order of the Trustees or of such officer,
employee or agent.
5.6 RECITALS. Any written instrument creating an obligation of the
Trust shall be conclusively taken to have been executed or done by a Trustee or
Trustees or an officer, employee or agent of the Trust only in their or his
capacity as Trustees or Trustee under this Declaration of Trust or in the
capacity of officer, employee or agent of the Trust. Any written instrument
creating an obligation of the Trust shall refer to this Declaration of Trust and
contain a recital to the effect that the obligations thereunder are not
personally binding upon, nor shall resort be had to the private property of, any
of the Trustees, Shareholders, officers, employees or agents of the Trust, but
the Trust Property or a specific portion thereof only shall be bound, and may
contain any further recital which they or he may deem appropriate, but the
omission of such recital shall not operate to impose personal liability on any
of the Trustees, Shareholders, officers, employees or agents of the Trust.
5.7 RELIANCE ON EXPERTS, ETC. Each Trustee and each officer of the
Trust shall, in the performance of his duties, be fully and completely justified
and protected with regard to any act or any failure to act resulting from
reliance in good faith upon the books of account or other records of the Trust,
upon an opinion of counsel or upon reports made to the Trust by any of its
officers or employees or by the Adviser, accountants, appraisers or other
experts or consultants selected with reasonable care by the Trustees or officers
of the Trust, regardless of whether such counsel or expert may also be a
Trustee.
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5.8 LIABILITY INSURANCE. The Trustees shall, at all times, maintain
insurance for the protection of the Trust Property, its Shareholders, Trustees,
officers, employees and agents in such amount as the Trustees shall deem
adequate to cover all foreseeable tort liability to the extent available at
reasonable rates.
ARTICLE VI
CHARACTERISTICS OF SHARES
6.1 GENERAL. The interest of the Shareholders hereunder shall be
divided into Shares, all of one class and having a par value of $.01 per Share.
The number of Shares authorized hereunder is unlimited. All Shares shall have
equal noncumulative voting, distribution, liquidation and other rights, shall be
fully paid and non-assessable, and shall not entitle the holder to preference,
preemptive, appraisal, conversion or exchange rights of any kind. Shareholders
are entitled to one vote for each full share and fractional votes for fractional
shares. The ownership of the Trust Property of every description and the right
to conduct any business hereinbefore described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than the
beneficial interest conferred by their Shares, and they shall have no right to
call for any partition or division of any property, profits, rights or interests
of the Trust nor can they be called upon to share or assume any losses of the
Trust or suffer an assessment of any kind by virtue of their ownership of
Shares, except as provided in Section 10.5 hereof. The Shares shall be personal
property giving only the rights specifically set forth in this Declaration of
Trust.
6.2 CLASSES OF STOCK.
(a) The shares shall be divided into ten classes of common
stock and designated Classes A, B. C, D, E, F, G. H, and I, respectively.
(b) The holders of each share of stock of the Trust shall be
entitled to one vote for each full share, and a fractional vote for each
fractional share of stock, irrespective of the Class, then standing in his name
on the books of the Trust. On any matter submitted to a vote of shareholders,
all shares of the Trust then issued and outstanding and entitled to vote shall
be voted in the
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aggregate and not by class except that (1) when otherwise expressly required by
Massachusetts Law, the Investment Company Act of 1940, or this Declaration of
Trust, shares shall be voted by individual class; (2) shares of the respective
classes are entitled to vote in matters concerning only that class; (3)
fundamental policies, as specified in Article 4 hereof, may not be changed,
unless a change affects only one Class, without the approval of the holders of a
majority of the Trusts outstanding voting shares, including a majority (as
defined under the Investment Company Act of 1940) of the shares of each Class.
(c) Each class of stock of the Trust shall have the following
powers, preferences or other special rights, and qualifications, restrictions,
and limitations thereof shall be as follows:
(1) The Trustees may from time to time declare and pay
dividends or distributions, in stock or in cash, on any or
all classes of stock, the amount of such dividends and
distributions and the payment of them being wholly in the
discretion of the Trustees.
(i) Dividends or distributions on shares of any
class of stock shall be paid only out of earned
surplus or other lawfully available assets belonging
to such class.
(ii) Inasmuch as one goal of the Trust is to
qualify as a "regulated investment company" under
the Internal Revenue Code of 1954, as amended, or
any successor or comparable statute thereto, and
Regulations promulgated thereunder, and 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 Trustees
shall have the power in their discretion to
distribute in any fiscal years as dividends,
including dividends designated in whole or in part
as capital gains distributions, amounts sufficient
in the opinion of the Trustees, to enable the
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Trust to qualify as a regulated investment company
and to avoid liability for the Trust for Federal
income tax in respect of that year. In furtherance,
and not in limitation of the foregoing, in the event
that a class of shares has a net capital loss for a
fiscal year, and to the extent that a net capital
loss for a fiscal year offsets net capital gains
from one or more of the other classes, the amount to
be deemed available for distribution to the class or
classes with the net capital gain may be reduced by
the amount offset.
(2) The assets belonging to any class of stock shall
be charged with the liabilities in respect to such class, and
shall also be charged with its share of the general
liabilities of the Trust in proportion to the asset values of
the respective classes. The determination of the Trustees
shall be conclusive as to the amount of liabilities, the
allocation of the same as to a given class and as to whether
the same or general assets of the Trust are allocable to one
or more classes.
(3) Prior to the issuance of any shares of a class,
the Trustees may by resolution change the designation of such
class to the name of the Portfolio of the Trust with respect
to which such shares will be issued.
6.3 EVIDENCE OF SHARE OWNERSHIP. Evidence of Share ownership shall be
reflected in the Share Register maintained by or on behalf of the Trust
pursuant to Section 7.1 hereof, and the Trust shall not be required to issue
certificates as evidence of Share ownership; provided, however, that the
Trustees may, in their discretion, authorize the use of certificates as a means
of evidencing the ownership of Shares by setting forth in the Trust's By-laws
or in a resolution, provisions for the form of certificates and regulations
governing their execution, issuance and transfer. Subject to Section 6.7
hereof, such certificates shall be treated as negotiable and title thereto and
to the Shares represented thereby shall be transferred by delivery thereof to
the same extent in all
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respects as a stock certificate, and the Shares represented thereby, of a
Massachusetts business corporation.
6.4 DEATH OF SHAREHOLDERS. The death of a Shareholder during the
continuance of the Trust shall not terminate this Declaration of Trust nor give
such Shareholder's legal representatives a right to an accounting or to take any
action in the courts or otherwise against other Shareholders or the Trustees or
the Trust Property, but shall simply entitle the legal representatives of the
deceased Shareholder to require the recordation of such legal representative's
ownership of or rights in the deceased Shareholder's Shares, and, upon the
acceptance thereof, such legal representative shall succeed to all the rights of
the deceased Shareholder under this Declaration of Trust.
6.5 REPURCHASE OF SHARES. The Trustees may, on behalf of the Trust,
purchase or otherwise acquire outstanding Shares from time to time for such
consideration and on such terms as they may deem proper. Shares so purchased or
acquired by the Trustees for the account of the Trust shall not, so long as they
belong to the Trust, receive distributions (other than, at the option of the
Trustees, distributions in Shares) or be entitled to any voting rights. Such
Shares may, in the discretion of the Trustees, be cancelled and the number of
Shares issued thereby reduced, or such Shares may, in the discretion of the
Trustees, be held in the treasury and may be disposed of by the Trustees at such
time or times, to such party or parties and for such considerations as the
Trustees may determine.
6.6 TRUSTEES AS SHAREHOLDERS. Any Trustee in his individual capacity
may purchase and otherwise acquire or sell and otherwise dispose of Shares or
other Securities issued by the Trust, and may exercise all the rights of a
Shareholder to the same extent as though he were not a Trustee.
6.7 REDEMPTION AND STOP TRANSFERS FOR TAX PURPOSES; REDEMPTION TO
MAINTAIN CONSTANT NET ASSET VALUE. If the Trustees shall, at any time and in
good faith, be of the opinion that direct or indirect ownership of Shares or
other Securities of the Trust has or may become concentrated in any person to an
extent which would disqualify the Trust as a regulated investment company
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under the Internal Revenue Code, then the Trustees shall have the power by lot
or other means deemed equitable by them (i) to call for redemption a number, or
principal amount, of Shares or other Securities of the Trust sufficient, in the
opinion of the Trustee to maintain or bring the direct or indirect ownership of
Shares or other Securities of the Trust into conformity with the requirements
for such qualification and (ii) to refuse to transfer or issue Shares or other
Securities of the Trust to any Person whose acquisition of the Shares or other
Securities of the Trust in question would, in the opinion of the Trustees,
result in such disqualification. The redemption shall be effected at a
redemption price determined in accordance with Section 6.9.
The Shares of the Trust shall also be subject to redemption pursuant to
the procedure for reduction of outstanding Shares set forth in Section 10.5
hereof in order to maintain the constant net asset value per share.
6.8 INFORMATION FROM SHAREHOLDERS. The holders of Shares or other
securities of the Trust shall, upon demand, disclose to the Trustees in writing
such information with respect to direct and indirect ownership of Shares or
other Securities of the Trust, as the Trustees reasonably deem necessary, to
comply with the provisions of the Internal Revenue Code, or to comply with the
requirements of any other taxing authority.
6.9 REDEMPTIONS. All outstanding Shares may be redeemed at the option
of the holders thereof, upon and subject to the terms and conditions provided in
this Declaration of Trust. The Trust shall, upon application of any Shareholder,
redeem or repurchase from such Shareholder outstanding Shares for an amount per
share determined by the application of a formula adopted for such purpose by the
Trustees (which formula shall be consistent with the 1940 Act and the rules and
regulations promulgated thereunder); provided that such amount per share shall
not exceed the cash equivalent of the proportionate interest of each share in
the assets of the Trust at the time of the purchase or redemption. The
procedures for effecting redemption shall be as adopted by the Trustees and set
forth in the Prospectus from time to time.
6.10 SUSPENSION OF REDEMPTION; POSTPONEMENT OF PAYMENT. The Trustees
may suspend the right of redemption
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or postpone the date of payment for the whole or any part of any period (i)
during which the New York Stock Exchange is closed other than customary weekend
and holiday closings, (ii) during which trading on the New York Stock Exchange
is restricted, (iii) during which an emergency exists as a result of which
disposal by the Trust of Securities owned by it is not reasonably practicable or
it is not reasonably practicable for the Trust to determine fairly the value of
its net assets, or (iv) during any other period when the Securities and Exchange
Commission (or any succeeding governmental authority) may for the protection of
security holders of the Trust by order permit suspension of the right of
redemption or postponement of the date of payment on redemption; provided that
applicable rules and regulations of the Commission (or any succeeding
governmental authority) shall govern as to whether the conditions prescribed in
(ii), (iii) or (iv) exist. Such suspensions shall take effect at such time as
the Trustees shall specify but not later than the close of business on the
business day next following the declaration of suspension, and thereafter there
shall be no right of redemption or payment until the Trustees shall declare the
suspension at an end, except that the suspension shall terminate in any event on
the first day on which said stock exchange shall have reopened or the period
specified in (ii), (iii) or (iv) shall have expired (as to which in the absence
of an official ruling by said Commission or succeeding authority, the
determination of the Trustees shall be conclusive). In the case of a suspension
of the right of redemption, a Shareholder may either withdraw his request for
redemption or receive payment based on the net asset value existing after the
termination of the suspension.
ARTICLE VII
RECORD AND TRANSFER OF SHARES
7.1 SHARE REGISTER. A register shall be kept by or on behalf of the
Trustees, under the direction of the Trustees, which shall contain the names and
addresses of the shareholders and the number of shares held by them respectively
and a record of all transfers thereof. Such register shall be conclusive as to
who are the holders of the Shares. Only Shareholders whose ownership of Shares
is recorded on such register shall be entitled to vote or to receive
distributions or otherwise to exercise or enjoy the
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rights of Shareholders. No Shareholder shall be entitled to receive any
distribution, nor to have notice given to him as herein provided, until he has
given his address to a transfer agent or such other officer or agent of the
Trust as shall keep the register for entry thereon.
7.2 TRANSFER AGENT. The Trustees shall have power to employ, within or
without the Commonwealth of Massachusetts, a transfer agent or transfer agents
and, if they so determine, a registrar or registrars. The transfer agent or
transfer agents may keep the registrar and record therein the original issues
and transfers of Shares. Any such transfer agents and registrars shall perform
the duties usually performed by transfer agents and registrars of certificates
and shares of stock in a corporation, except as modified by the Trustees.
7.3 OWNER OF RECORD. Any person becoming entitled to any Share in
consequence of the death, bankruptcy or insolvency of any Shareholder, or
otherwise, by operation of law, shall be recorded as holder of such Shares. 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 or agent of the Trust shall be
affected by any notice of such death, bankruptcy, insolvency or other event.
7.4 TRANSFERS OF SHARES. Shares shall be transferable on the records of
the Trust (other than by operation of law) only by the record holder thereof or
by his agent hereunto duly authorized in writing upon delivery to the Trust or a
transfer agent of the Trust of a duly executed instrument of transfer, together
with such evidence of the genuineness of execution and authorization and of
other matters as may reasonably be required by the Trust or the transfer agent.
Upon such delivery, the transfer shall be recorded on the register 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
the Trust nor any transfer agent or registrar nor any officer or agent of the
Trust shall be affected by any notice of the proposed transfer. This
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Section 7.4 and Section 7.3 hereof are subject in all respects to the provisions
of Section 6.7 hereof.
7.5 LIMITATION OF FIDUCIARY RESPONSIBILITY. The Trustees shall not, nor
shall the Shareholders or any officer, transfer agent or other agent of the
Trust, be bound to see to the execution of any trust, express, implied or
constructive, or of any charge, pledge or equity to which any of the Shares or
any interest therein are subject, or to ascertain or inquire whether any sale or
transfer of any such Shares or interest therein by any such Shareholder or his
personal representative is authorized by such trust, charge, pledge or equity,
or to recognize any Person as having any interest therein except the Persons
recorded as such Shareholders. The receipt of the Person in whose name any Share
is recorded, or, if such Share is recorded in the names of more than one Person,
the receipt of any one such Persons or of the duly authorized agent of any such
Person shall be a sufficient discharge for all money, Securities and other
property payable, issuable or deliverable in respect of such Share and from all
liability to see the proper application thereof.
7.6 NOTICES. Any and all notices to which Shareholders hereunder may be
entitled, and any and all communications, shall be deemed duly served or given
if mailed, postage prepaid, addressed to Shareholders of record at their last
known post office addresses as recorded on the Share register provided for in
Section 7.1 hereof.
ARTICLE VIII
SHAREHOLDERS
8.1 MEETINGS OF SHAREHOLDERS. Meetings of the Shareholders may be
called at any time by a majority of the Trustees and shall be called by any
Trustee upon written request of Shareholders holding in the aggregate not less
than ten (10%) percent of the outstanding Shares having voting rights, such
request specifying the purpose or purposes for which such meeting is to be
called. Any such meeting shall be held within or without the Commonwealth of
Massachusetts on such day and at such time as the Trustees shall designate. In
the event that the number of Trustees elected by vote of the Shareholders shall,
at any time, fall below a majority a Special Meeting shall be called at the
earliest practicable time for the election of Trustees;
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provided, however, that such meeting shall, in any event be held within sixty
(60) days of the date of the number of Trustees elected by vote of the
Shareholders falls below a majority.
8.2 QUORUMS. The holders of a majority of outstanding Shares, entitled
to vote at such a meeting, present in person or by proxy shall constitute a
quorum at any meeting of Shareholders.
8.3 NOTICE OF MEETINGS. Notice of all meetings of the Shareholders
entitled to vote at such a meeting, stating the time, place and purposes of the
meeting, shall be given by the Trustees by mail to each Shareholder at his
registered address, mailed at least ten (10) days and not more than sixty (60)
days before the meeting. Only the business stated in the notice of the meeting
shall be considered at such meeting. Any adjourned meeting may be held as
adjourned without further notice.
8.4 RECORD DATE FOR MEETINGS. For the purposes 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 thirty (30) days, as the
Trustees may determine; or without closing the transfer books, the Trustees may
fix a date not more than sixty (60) days prior to the date of any meeting of
Shareholders or other actions as a record date 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, except
for dividend payments which shall be governed by Section 10.1, and any
Shareholder who was a Shareholder at the time so fixed shall be entitled to vote
at such meeting or any adjournment thereof, even though he has since that date
disposed of his Shares, and no Shareholder becoming such after that date 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.
8.5 PROXIES, Etc. At any meeting of Shareholders, any holder or Shares
entitled to vote thereat may vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Trust
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as the Secretary may direct, for the verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of a majority of the
Trustees, proxies may be solicited in the name of one or more Trustees or one or
more of the officers of the Trust Only Shareholders of record shall be entitled
to vote and each full share shall be entitled to one vote and fractional shares
shall be entitled to fractional votes. When any Share is held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect of such Share, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Share. 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. If the holder
of any such Share is a minor or a person of unsound mind, and subject to
guardianship or to the legal control of any other person as regards the charge
or management of such Share, he may vote by his guardian or such other person
appointed or having such control, and such vote may be given in person or by
proxy.
8.6 REPORTS. The Trustees shall cause to be prepared at least annually
a report of operations containing a balance sheet and statements of income and
undistributed income of the Trust prepared in conformity with generally accepted
accounting principles and an opinion of an independent certified public
accountant on such financial statements based on an examination of the books and
records of the Trust, and made in accordance with generally accepted auditing
standards. A signed copy of such report and opinion shall be filed with the
Trustee within sixty (60) days after the close of the period covered thereby.
Copies of such reports shall be mailed to all Shareholders of record within the
time required by the 1940 Act and in any event within a reasonable period
preceding the annual meeting of Shareholders. The Trustees shall, in addition,
furnish to the Shareholders, at least semi-annually, an interim report
containing an unaudited balance sheet of the Trust as at the end of such
semi-annual period and a statement of income and surplus for the period from the
beginning of the current fiscal year to the end of such semi-annual period.
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8.7 INSPECTION OF RECORDS. The records of the Trust shall be open to
inspections by Shareholders to the same extent as is permitted shareholders of a
Massachusetts business corporation.
8.8 SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action taken by
Shareholders may be taken without a meeting tin g if a majority of Shareholders
entitled to vote on the matter (or such larger proportion thereof as shall be
required by any express provision of this Declaration of Trust) consent to the
action in writing and the written consents are filed with the records of the
meetings of Shareholders. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
8.9 VOTING RIGHTS OF SHAREHOLDERS. The Shareholders shall be entitled
to vote only upon the following matters: (a) election of Trustees as provided in
Section 9.2 and Section 9.4 hereof; (b) amendment of the Declaration of Trust or
termination of this Trust as provided in Section 4.4 and Section 13.1 hereof;
(c) reorganization of this Trust as provided in Section 13.2 hereof; and (d) all
matters for which the approval of the Shareholders of the Trust is required by
the Investment Company Act of 1940, as amended. Except with respect to the
foregoing matters specified in this Section 8.9, no action taken by the
Shareholders at any meeting shall in any way bind the Trustees.
ARTICLE IX
TRUSTEES
9.1 NUMBER AND QUALIFICATION. The number of Trustees shall be fixed
from time to time by resolution of a majority of the Trustees then in office,
provided, however, that the number of Trustees shall in no event be less than
three (3) or more than fifteen (15). Any vacancy created by an increase in
Trustees may be filled by the appointment of an individual having the
qualifications described in this Section 9.1 made by a resolution of a majority
of the Trustees then in office. Any such appointment shall not become effective,
however, until the individual named in the resolution of appointment shall have
accepted in writing such appointment and agreed in writing to be bound
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by the terms of this Declaration of Trust. No reduction in the number of
Trustees shall have the effect of removing any Trustee from office prior to the
expiration of his term. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled as provided in Section 9.4 hereof, the
Trustees or Trustee continuing in office, regardless of their number, shall have
all the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Declaration of Trust. A Trustee shall be an
individual at least twenty-one (21) years of age who is not under legal
disability. The Trustees, in their capacity as Trustees, shall not be required
to devote their entire time to the business and affairs of the Trust.
9.2 TERM AND ELECTION. Each Trustee named herein, or elected or
appointed as provided in Section 9.1 and 9.4 hereof shall (except in the event
of resignations or removals or vacancies pursuant to Sections 9.3 or 9.4 hereof)
hold office until his successor has been elected and has qualified to serve as
Trustee. Election of Trustees shall be by the affirmative vote of the holders of
at least a majority of the Shares entitled to vote present in person or by proxy
at such meeting. The election of any Trustee (other than an individual who was
serving as a Trustee immediately prior to such election) pursuant to this
Section 9.2 shall not become effective unless and until such person shall have
in writing accepted his election and agreed to be bound by the terms of this
Declaration of Trust. Trustees may, but need not, own Shares.
9.3 RESIGNATION AND REMOVAL. Any Trustee may resign (without need for
prior of subsequent accounting) by an instrument in writing signed by him and
delivered or mailed to the Chairman, the President or the Secretary (referred to
in Section 9.6 hereof) and such resignation shall be effective upon such
delivery, or at a later date according to the terms of the notice. Any of the
Trustees may be removed (provided the aggregate number of Trustees after such
removal shall not be less than the number required by Section 9.1 hereof) with
cause, by the action of two-thirds (2/3) of the remaining Trustees. Upon the
resignation or removal of a Trustee, or his otherwise ceasing to be a Trustee,
he shall execute and deliver such
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documents as the remaining Trustees shall require for the purpose of conveying
to the Trust or the remaining Trustees any Trust Property held in the name of
the resigning or removed Trustee. Upon the incapacity or death of any Trustee,
his legal representative shall execute and deliver on his behalf such documents
as the remaining Trustees shall require as provided in the preceding sentence.
No natural person shall serve as Trustee after the holders of record of
not less than two-thirds of the outstanding shares of beneficial interest in the
Trust have declared that he be removed from that office either by declaration in
writing filed with the Custodian of the securities of the Trust or by votes cast
in person or by proxy at a meeting called for the purpose.
The Trustees shall promptly call a meeting of shareholders for the
purpose of voting upon the question of remove if any such Trustee or Trustees
are requested in writing so to do by the recordholders of not less than ten (10)
per centum of the outstanding shares.
Whenever ten or more shareholders of record, who have been such for at
least six months preceding the date of application, and who hold in the
aggregate either shares having a net asset value of at least $25,000 or at least
one (1) per centum of the outstanding shares, which is less, shall apply to the
Trustees in writing, stating that they wish to communicate with other
shareholders with a view to obtaining signatures to a request for a meeting for
the purposes of removing Trustee(s) and accompanied by a form of communication
and request which they wish to transmit, the Trustees shall within five (5)
business days after receipt of such application either --
(1) afford to such applicants access to a list of the names and
addresses of all shareholders as recorded on the books of
the Trust; or
(2) inform such applicants as to the approximate number of
shareholders of record, and the approximate cost of mailing
to them the proposed communication and form of request.
If the Trustees elect to follow the course specified in (2) above, upon
the written request of such applicants,
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accompanied by a tender of the material to be mailed and of the reasonable
expenses of mailing, shall, with reasonable promptness, mail such material to
all shareholders of record at their addresses as recorded on the books, unless
within five (5) business days after such tender the Trustees shall mail to such
applicants and file with the Securities and Exchange Commission, together with a
copy of the material to be mailed, a written statement signed by at least a
majority of the Trustees to the effect that in their opinion either such
material contains untrue statements of fact or omits to state facts necessary to
make the statements contained therein not misleading, or would be in violation
of applicable law, and specifying the basis of such opinion.
9.4 VACANCIES. The term of office of a Trustee shall terminate and a
vacancy shall occur in the event of the death, resignation, bankruptcy,
adjudicated incompetence or other incapacity to exercise the duties of the
office, or removal of a Trustee. No such vacancy shall operate to annul this
Declaration of Trust or to revoke any existing agency created pursuant to the
terms of this Declaration of Trust, and title to any Trust Property held in the
name of any Trustee alone, jointly with one or more of the other Trustees or
otherwise, shall, in the event of the death, resignation, removal, bankruptcy,
adjudicated incompetence or other incapacity to exercise the duties of the
office of such Trustee, vest in the continuing or surviving Trustees without
necessity of any further act or conveyance. In the case of an existing vacancy
(other than by reason of increase in the number of Trustees) the holders of at
least a majority of the Shares entitled to vote, acting at any meeting of
Shareholders called for the purpose, or a majority of the Trustees continuing in
office acting by resolution, may fill such vacancy, and any Trustee so elected
by the Trustees shall hold office until his successor has been elected and has
qualified to serve as Trustee. Upon the effectiveness of any such appointment as
provided ., this Section, the Trust Property shall vest in such new Trustee
jointly with the continuing or surviving Trustees without the necessity of any
further act or conveyance; provided, however, that no such election or
appointment as provided in this Section 9.4 shall become effective unless or
until the new Trustee shall have accepted in writing his appointment and agreed
to be bound by the terms of this Declaration of Trust.
9.5 MEETINGS. Meetings of the Trustees shall be held from time to time
upon the call of the Chairman, the President, the Secretary or any two Trustees.
Regular
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meetings of the Trustees may be held without call or notice at a time and place
fixed by the By-laws or by resolution of the Trustees. Notice of any other
meeting shall be mailed or otherwise given not less than forty-eight (48) 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 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. The Trustees may act with or
without a meeting. A quorum for all meetings of the Trustees shall be a majority
of the Trustees. Subject to Section 2.15 hereof and unless specifically provided
otherwise in this Declaration of Trust, 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 consents of a majority of the
Trustees. Any agreement, or other instrument or writing executed by one or more
of the Trustees or by any authorized Person shall be valid and binding upon the
Trustees and upon the Trust when authorized or ratified by action of the
Trustees as provided in this Declaration of Trust.
Any committee of the Trustees, including an Executive Committee, if
any, may act with or without a meeting. A quorum for all meetings of any such
committee shall be a majority of the members thereof. Unless otherwise
specifically provided in this Declaration of Trust, 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.
With respect to actions of the Trustees and any committee thereof,
Trustees who are affiliated within the meaning of Section 2.15 hereof or
otherwise interested in any action to be taken may be counted for quorum
purposes under this Section 9.5 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 utilizing conference, telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting pursuant to such
communications shall constitute presence in
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person at such meeting. The minutes of any meeting of Trustees held by utilizing
such communications equipment shall be prepared in the same manner as those of a
meeting of Trustees held in person.
9.6 OFFICERS. The Trustees shall elect a Chairman from among their
number and shall appoint a President, Secretary and Treasurer and such other
officers as they deem necessary or appropriate to carry out the business of the
trust. Such officers shall be appointed and hold office in accordance with
By-law provisions.
9.7 BY-LAWS. The Trustees may adopt and, from time to time, amend or
repeal By-laws for the conduct of the business of the Trust, and in such By-laws
may define the duties of the respective officers, agents, employees and
representatives.
ARTICLE X
DISTRIBUTIONS TO SHAREHOLDERS AND
DETERMINATION OF NET ASSET VALUE AND NET INCOME
10.1 GENERAL. The Trustees may, from time to time, declare and pay to
the Shareholders, in proportion to their respective ownership of Shares, out of
the earnings, net profits or surplus (including paid-in capital), capital or
assets in the hands of the Trustees, such dividends or other distributions as
they may determine. The declaration and payment of such dividends or other
distributions and the determination of earnings, profits, surplus (including
paid-in capital) and capital available for dividends and other purposes shall
lie wholly in the discretion of the Trustees and no Shareholder shall be
entitled to receive or be paid any dividends or to receive any distribution
except as determined by the Trustees in the exercise of said discretion. The
Trustees may, in addition, from time to time in their discretion, declare and
pay as dividends or other distributions such additional amounts, whether or not
out of earnings, profits and surplus available therefor, sufficient to enable
the Trust to avoid or reduce its liability for Federal income taxes, inasmuch as
the computations of net income and gains for Federal income tax purposes may
vary from the computations thereof on the books of the Trust. Any of all such
dividends or other distributions may be made, in whole or in part, in cash,
property or other assets or obligations of the Trust, as the Trustees may in
their sole discretion from time to time
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determine. The Trustees may also distribute to the Shareholders, in proportion
to their respective ownership of Shares, additional Shares issuable hereunder in
such manner and on such terms as they may deem proper. Any of all such dividends
or distributions may be made among the Shareholders of record at the time of
declaring a distribution or among the Shareholders of record at such later date
as the Trustees shall determine.
10.2 RETAINED EARNINGS. The Trustees, except as provided in Section
10.1 hereof, may always retain from the net profits such amount as they may deem
necessary to pay the debts or expenses of the Trust, to meet obligations of the
Trust, to establish reserves or as they may deem desirable to use in the conduct
of its affairs or to retain for future require or extensions of the business of
the Trust.
10.3 SOURCE OF DISTRIBUTIONS. Shareholders shall receive annually a
statement in writing advising the Shareholders of the source of the funds so
distributed so that distributions of ordinary income, return of capital and
capital gains income will be clearly distinguished.
10.4 NET ASSET VALUE. The net asset value of each outstanding Share of
the Trust shall be determined once on each business day, as of the close of
trading on the New York Stock Exchange or at any other time as the Trustees, by
resolution, may determine and which is in compliance with the 1940 Act. The
method of determination of net asset value shall be determined by the Trustees
and shall be set forth in the Prospectus. The power and duty to make the daily
calculations may be delegated by the Trustees to the Adviser, the Custodian, the
Transfer Agent, the Distributor 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.
10.5 POWER TO MODIFY VALUATION PROCEDURES. Notwithstanding any of the
foregoing provisions of this Article X, the Trustees may prescribe, in their
absolute discretion, such other bases and times for determining the per share
net asset value of the Trust's Shares or net income, or the declaration and
payment of dividends and distributions as they may deem necessary or desirable
to enable the Trust to comply with any provision of the 1940 Act, or any rule or
regulation thereunder, including any
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rule or regulation adopted pursuant to Section 22 of the 1940 Act by the
Commission or any securities association registered under the Securities
Exchange Act of 1934, or any order of exemption issued by said Commission, all
as in effect now or as hereafter amended or modified.
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT AND DUTIES. The Trustees shall, at all times, employ a
bank or trust company organized under the laws of the United States of America
or one of the several states thereof having a capital, surplus and undivided
profits of at least two million dollars ($2,000,000) as Custodian with authority
as its agent, but subject to such restrictions, limitations and other
requirements, if any, as may be contained in the By-laws of the Trust and the
1940 Act:
(a) to hold the securities owned by the Trust and deliver the
same upon written order;
(b) to receive and receipt for any monies due to the Trust and
deposit the same in its own banking department or elsewhere
as the Trustees may direct;
(c) to disburse such funds upon orders or vouchers;
(d) if authorized by the Trustees, to keep the books and
accounts of the Trust and furnish clerical and accounting
services;
(e) if authorized to do so by the Trustees, to compute the net
income of the Trust;
all upon such basis of compensation as may be agreed upon between the Trustees
and Custodian.
The Trust may also employ the Custodian as its agent for other
purposes.
The Trustees may also authorize the Custodian to employ one or more
Sub-Custodians from time to time to perform such of the acts and services of the
Custodian and upon such terms and conditions, as may be agreed upon between the
Custodian and such Sub-Custodian and approved by the Trustees, provided that, in
every case, such Sub-Custodian
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shall be a bank or trust company organized under the laws of the United States
of America or one of the several states thereof and having capital, surplus and
undivided profits of at least two million dollars ($2,000,000).
11.2 CENTRAL CERTIFICATE SYSTEM. Subject to such rules, regulations and
orders as the Commission may adopt, the Trustees may direct the Custodian to
deposit all or any part of the Securities owned by the Trust in a system for the
central handling of Securities established by a national securities exchange or
a national securities association registered with the Commission under the
Securities Exchange Act of 1934, or such other person as may be permitted by the
Commission, or otherwise in accordance with the 1940 Act, pursuant to which
system all securities of any particular class or series of any issuer deposited
within the system are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of such securities, provided that
all such deposits shall be subject to withdrawal only upon the order of the
Trust.
ARTICLE XII
RECORDING OF DECLARATION OF TRUST
12.1 RECORDING. This Declaration of Trust and any amendment hereto
shall be filed in the office of the Secretary of the Commonwealth of
Massachusetts and may also be filed or recorded in such other places as the
Trustees deem appropriate. Each amendment so filed shall be accompanied by a
certificate signed and acknowledged by a Trustee stating that such action was
duly taken in a manner provided herein; and unless such amendment or such
certificate filed with the Secretary of the Commonwealth of Massachusetts sets
forth some earlier or later time for the effectiveness of such amendment, such
amendment shall be effective upon its filing with the Secretary of said
Commonwealth. An amended Declaration, containing the original Declaration and
all amendments theretofore made, may be executed any time or from time to time
by a majority of the Trustees and shall, upon filing with the Secretary of the
Commonwealth of Massachusetts, be conclusive evidence of all amendments
contained therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
ARTICLE XIII
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AMENDMENT OR TERMINATION OF TRUST
13.1 AMENDMENT OR TERMINATION. The provisions of this Declaration of
Trust may be amended or altered (except as to the limitations on personal
liability of the Shareholders and Trustees and the prohibition of assessments
upon Shareholders), or the Trust may be terminated, at any meeting of the
Shareholders called for the purpose, by the affirmative vote of the holders of a
majority of the Shares then outstanding and entitled to vote, or by an
instrument or instruments in writing, without a meeting, signed by a majority of
the Trustees and the holders of a majority of such Shares; provided, however,
that the Trustees may, from time to time by a two-thirds (2/3) vote of the
Trustees, and after fifteen (15) days prior written notice to the Shareholders,
amend or alter the provisions of this Declaration of Trust, without the vote or
assent of the Shareholders, to the extent deemed by the Trustees in good faith
to be necessary to conform this Declaration to the requirements of the regulated
investment company provisions of the Internal Revenue Code or the requirements
of applicable federal laws or regulations or any interpretation thereof by a
court or other governmental agency of competent jurisdiction but the Trustees
shall not be liable for failing so to do. Notwithstanding the foregoing, (i) no
amendment may be made pursuant to this Section 13.1 which would change any
rights with respect to any outstanding Shares of the Trust by reducing the
amount payable thereon upon liquidation of the Trust or by diminishing or
eliminating any voting rights pertaining thereto, except with the vote or
written consent of the holders of two-thirds (2/3) of the outstanding Shares
entitled to vote thereon; and (ii) no amendment may be made with respect to the
investment restrictions contained in Section 4.2 hereof without the affirmative
vote of the holders of a majority (as defined in the 1940 Act) of the Shares of
the class of stock affected by such change. Upon the termination of the Trust
pursuant to this Section 13.1:
(a) The Trust shall carry on no business except for the purpose
of winding up its affairs.
(b) The Trustees shall proceed to wind up the affairs of the
Trust and all of the powers of the Trustees under this
Declaration of Trust shall continue until the affairs of
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the Trust shall have been wound up, including the power to
fulfill or discharge the contracts of the Trust, collect its
assets, sell, convey, assign, exchange, transfer or
otherwise dispose of all or any part of the remaining Trust
Property to one or more persons at public or private sale
for consideration which may consist in whole or in part of
cash, securities or other property of any kind, discharge or
pay its liabilities, and do all other acts appropriate to
liquidate its business; provided that any sale, conveyance,
assignment, exchange, transfer or other disposition of all
or substantially all of the Trust Property shall require
approval of the principal terms of the transaction and the
nature and amount of the consideration by affirmative vote
of not less than a majority of all outstanding Shares
entitled to vote.
(c) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities
and refunding agreements, as they deem necessary for their
protection, the Trustees may distribute the remaining Trust
Property, in cash or in kind or partly of each, among the
Shareholders according to their respective rights.
Upon termination of the Trust and distribution to the Shareholders as
herein provided, a majority of the Trustees shall execute and lodge among the
records of the Trust an instrument in writing setting forth the fact of such
termination, and the Trustees shall thereupon be discharged from all further
liabilities and duties hereunder, and the right, title and interest of all
Shareholders shall cease and be cancelled and discharged.
A certification in recordable form signed by a majority of the Trustees
setting forth an amendment and reciting that it was duly adopted by the
Shareholders or by the Trustees as aforesaid or a copy of the Declaration, as
amended, in recordable form, and executed by a majority of
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the Trustees, shall be conclusive evidence of such amendment when lodged among
the records of the Trust.
Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of Shares shall have become effective, this
Declaration of Trust may be terminated or amended in any respect by the
affirmative vote of a majority of the Trustees or by an instrument signed by a
majority of the Trustees.
13.2 POWER TO EFFECT REORGANIZATION. The Trustees, by vote or written
approval of a majority of the Trustees, may select or direct the organization of
a corporation, association, trust or other organization with which the Trust may
merge, or which shall take over the Trust Property and carry on the affairs of
the Trust, and after receiving an affirmative vote of not less than a majority
of the outstanding Shares entitled to vote at any meeting or Shareholders, the
notice for which included a statement of such proposed action, the Trustees may
effect such merger or may sell, convey and transfer the Trust Property to any
such corporation, association, trust or organization in exchange for cash or
shares or securities thereof, or beneficial interest therein with the assumption
by such transferee of the liabilities of the Trust; and thereupon the Trustees
shall terminate the Trust and deliver such cash, shares, securities or
beneficial interest ratably among the Shareholders of this Trust in redemption
of their Shares.
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ARTICLE XIV
MISCELLANEOUS
14.1 GOVERNING LAW. This Declaration Trust is executed by the Trustees
and delivered in the Commonwealth of Massachusetts and with reference to the
laws thereof, and the rights of all parties and the validity, construction and
effect of every provision hereof shall be subject to and construed according to
the laws of said Commonwealth and reference shall be specifically made to the
Business Corporation Law of the Commonwealth of Massachusetts as to the
construction of matters not specifically covered herein or as to which an
ambiguity exists.
14.2 COUNTERPARTS. This Declaration of Trust may be simultaneously
executed in several counterparts, each of which so executed shall be deemed to
be an original, and such counterparts, together, shall constitute but one and
the same instrument, which shall be sufficiently evidenced by any such original
counterpart.
14.3 RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, 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 By-law 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 to the matters so certified in favor of any person
dealing with the Trustees or any of them and the successors of such person.
14.4 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 one or more of such provisions (the
"Conflicting Provisions") are in conflict with the regulated
investment company provisions of the Internal
43
<PAGE>
Revenue Code or with other applicable federal or state 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 by the
Trustees shall not affect or impair any of the remaining
provisions of this Declaration of Trust or render invalid or
improper any action taken or omitted (including, but not
limited to, the election of Trustees) 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 or render invalid or unenforceable such provision in
any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
14.5 SECTION HEADINGS. Sections headings have been inserted for
convenience only and are not a part of this Declaration of this Trust.
ARTICLE XV
DURATION OF TRUST
15.1 DURATION. Subject to possible termination in accordance with the
provisions of Article XIII hereof, the Trust created hereby shall continue until
the expiration of twenty (20) years after the death of the last survivor of the
following named persons:
Name Address Birth Date
- ---- ------- ----------
Michael A. Hasenauer 7A Maple Street April 25, 1982
Weston, CT
William Arthur Phillip Buckingham Palace June 21, 1982
Lewis Mountbatten - London, England
Windsor
David Alan Braverman 3 Vauxhall Court February 17, 1980
Edison, NJ 08820
44
<PAGE>
Name Address Birth Date
- ---- ------- ----------
Peter James Peck Brown 31 Kates Lane July 12, 1982
Metuchen, NJ 08840
Lauren Faschan Mariano Mt. Pleasant Village September 7, 1982
Building 23 - 6A
Morris Plains, NJ 07950
Peter Thomas Snedeker 341 G. Karrville Rd. October 4, 1982
Port Murray, NJ 07965
Erika Joy Palmer 4 Woodmere Drive, RD #3 July 22, 1979
Belle Meade, NJ 08592
Mark Christopher Palmer 4 Woodmere Drive, RD #3 December 30, 1981
Belle Meade, NJ 08592
Christine Rost Tippy 32 Lake Drive October 26, 1982
Boonton, NJ 07005
Shaun Edward McCathern 5 North Cape Trail June 26, 1982
Rockway, NJ 07866
45
<PAGE>
IN WITNESS WHEREOF, the undersigned majority of all of the Trustees
of the Trust have caused these presents to be executed as of the 10th day of
June, 1983.
Position
Name With Trust Address
---- ---------- --------
/S/ RICHARD E. COLEMAN President and 1599 Littleton Rd.
- ---------------------- Trustee Parsippany NJ
Richard E. Coleman 07054
/S/BRUCE W. KUNZMANN Treasurer and 1599 Littleton Rd.
- ---------------------- Trustee Parsippany NJ
Bruce W. Kunzmann 07054
/S/ ROBERT M. GRAHAM Trustee 1599 Littleton Rd.
- -------------------- Parsippany, NJ
Robert M. Graham 07054
/S/ THOMAS G. FERGUSON Trustee 1599 Littleton Rd.
---------------------- Parsippany, NJ
Thomas G. Ferguson 07054
/S/ JOHN S. VENABLE Trustee c/o The Charles
- ---------------------- Edison Fund
John D. Venable 101 South Harrison
Street, East Orange, NJ 07018
(ALL TRUSTEES MUST SIGN)
46
<PAGE>
AMENDMENT
TO
AMENDED DECLARATION OF TRUST
OF BANKERS NATIONAL SERIES TRUST
WHEREAS, the Declaration of Trust of Bankers National Series Trust (the
"Trust"), dated November 15, 1982 was duly filed in the office of the Secretary
of the Commonwealth of Massachusetts; and
WHEREAS, pursuant to Articles XII and XIII of said Amended Declaration
of Trust dated June 10, 1983 was so filed (said Amended Declaration of Trust
being referred to herein as the "Declaration of Trust"); and
WHEREAS, Article XIII of the Declaration of Trust permits an amendment
or alteration to the Declaration of Trust by an instrument or instruments signed
by a majority of the Trustees and by the holders of a majority of the Trust's
shares; and
WHEREAS, this Amendment has been so authorized,
NOW, THEREFORE, the Amendment WITNESSETH:
1. The definition of "Portfolio" is Section 1.4 of Article I of the
Declaration of Trust is amended so that, as amended, it will read as follows:
"Portfolio" shall have the meaning set forth in Article VI.
2. The second sentence of Section 2.15(c) of Article II of the
Declaration of Trust is amended so that, as amended, it will read as follows:
The Trustees shall use their best efforts to obtain through
the Adviser or other Persons a continuing and suitable
investment program, consistent with the policies and
objectives of each Portfolio.
<PAGE>
3. The first paragraph of Section 5.3 of Article V of the Declaration
of Trust is hereby renumbers as subsection "(a)" of Section 5.3.
4. The second paragraph of Section 5.5 of Article V of the Declaration
of Trust is amended so that, as amended, it will read as follows:
(b) (1) As used in this subsection (b) of this Section 5.3, the
following terms shall have the meaning set forth below:
(i) the term "indemnitee" shall mean any present or former
Trustee, officer or employee of the Trust, any present or
former Trustee or officer of another trust or corporation
whose securities are or were owned by the Trust or of which
the Trust is or was a creditor and who served or serves in
such capacity at the request of the Trust, any present or
former investment adviser, sub-adviser or principal
underwriter of the Trust and the heirs, executors,
administrators, successors and assigns of any of the
foregoing; however, whenever conduct by an indemnitee is
referred to, the conduct shall be that of the original
indemnitee rather than that of the heir, executor,
administrator, successor or assignee;
(ii) the term "covered proceeding" shall mean any
threatened, pending or competed action, suit or proceeding,
whether civil, criminal, administrative or investigative, to
which an indemnitee is or was a party or is threatened to be
made a party by reason of the fact or facts under which he
or it is an indemnitee as defined above;
(iii) the term "disabling conduct" shall mean willful
misfeasance, bad faith, gross negligence or reckless
disregard of the
2
<PAGE>
duties involved in the conduct of the office in question;
(iv) the term "covered expenses" shall mean expenses
(including attorney's fees), judgements, fines and amounts
paid in settlement actually and reasonably incurred by an
indemnitee in connection with a covered proceeding; and
(v) The term "adjudication of liability" shall mean, as to
any covered proceeding and as to any indemnitee, an adverse
determination as to the indemnitee whether by judgment,
order, settlement, conviction or upon a plea of nolo
contredere or its equivalent.
(2) The Trust shall not indemnify any indemnitee for any
covered expenses in any covered proceeding if there has been an
adjudication of liability against such indemnitee expressly based on
a finding of disabling conduct.
(3) Except as set forth in (2) above, the Trust shall
indemnify any indemnitee for covered expenses in any covered
proceeding, whether or not there is an adjudication of liability as
to such indemnitee, if a determination has been made that the
indemnitee was not liable by reason of disabling conduct by (i) a
final decision of the court or other body before which the covered
proceeding was brought; or (ii) in the absence of such decision, a
reasonable determination, based on a review of the facts, by either
(a) the vote of a majority of a quorum of Trustees who are neither
"interested persons", as defined in the 1940 Act nor parties to the
covered proceeding or (b) an independent legal counsel in a written
opinion; provided that such Trustees or counsel, in reaching such
determination, may but need not presume the absence of disabling
conduct on the part of the
3
<PAGE>
indemnitee by reason of the manner in which the covered proceeding
was terminated.
(4) Covered expenses incurred by an indemnitee in connection
with a covered proceeding shall be advanced by the Trust to an
indemnitee prior to the final disposition of a covered proceeding
upon the request of the indemnitee for such advance and the
undertaking by or on behalf of the indemnitee to repay the advance
unless it is ultimately determined that the indemnitee is entitled
to indemnification thereunder, but only If one or more of the
following in the case (i) the indemnitee shall provide a security
for each undertaking; (ii) the Trust shall be insured against losses
arising out of any lawful advances; or (iii) there shall have been a
determination, based on a review of the readily available facts (as
opposed to a full trial-type inquiry) that there is a reason to
believe that the indemnitee ultimately will be found entitled to
indemnification by either independent legal counsel in a written
opinion or by the vote of a majority of a quorum of trustees who are
neither "interested persons" as defined in the 1940 Act nor parties
to the covered proceeding.
(5) Nothing herein shall be deemed to affect the right of the
Trust and/or any indemnitee to acquire and pay for any insurance
covering any or all indemnitees to the extent permitted by the 1940
Act or to affect any other indemnification rights to which any
indemnitee may be entitled to the extent permitted by the 1940 Act.
5. Section 6.1 of Article VI of the Declaration of Trust is amended by
deleting the first four sentences thereof.
6. Section 6.2 of Article VI of the Declaration of Trust is amended so
that, as amended, it will read as follows:
4
<PAGE>
6.2 PORTFOLIOS. The beneficial interest in the Trust
shall at all time be divided into an unlimited number of
transferable Shares, having apart value of $0.01 per Share.
The Shares of the Trust shall be classified into one or more
"Portfolios" having the characteristics set forth in (a)
through and including (f) below. The Trustees may from time
to time divide or combine the Shares of each Portfolio into
a greater or lesser number without thereby changing the
proportionate beneficial interests in that Portfolio.
Contributions to the Trust may be accepted for, and Shares
shall be redeemed as, whole Shares and/or 1/1,000ths of a
Share or multiple thereof. The Board of Trustees may
classify unissued Shares into one or more additional
Portfolios which shall, together with the issued Shares of
each Portfolio, have such designations as the Trustees may
determine and shall, subject to any applicable rule,
regulation or order of the Commission or other applicable
law or regulation, have the characteristics set forth in (a)
through and including (f) below.
(a) All consideration received by the Trust for the
issue or sale of Shares of each Portfolio, together with all
income, earnings, profits and proceeds thereof, including
any proceeds derived form the sale, exchange or liquidation
thereof, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may
be, shall irrevocably belong to the Portfolio with respect
to which such assets, payments, or funds were received by
the Trust for all purposes, subject only to the rights of
creditors, and shall be so handled upon the books of account
o f the Trust. Such assets, income, earnings, profits and
proceeds thereof, any asset derived from any reinvestment of
such proceeds, in whatever form the same may be, are herein
referred to as "assets belonging to" such Portfolio.
5
<PAGE>
(b) Dividends or distributions on Shares of any
Portfolio, whether payable in shares or cash, shall be paid
only out of earnings, surplus or other assets belonging to
such Portfolio.
(c) In the event of the liquidation or dissolution of
the Trust, Shareholders of each such Portfolio shall be
entitled to receive, as a class, out of the assets of the
Trust available for distribution to Shareholders, but other
than general assets not belonging to such Portfolio; and the
assets so distributable to the Shareholders of any such
class shall be distributed among such Shareholders in
proportion to the number of shares of such Portfolio held by
them and recorded on the books of the Trust. In the event
that there are any general assets not belonging to any
particular Portfolio and available for distribution, such
distribution shall be made to the holders of Shares of all
Portfolios in proportion to the asset value of the
respective Portfolios.
(d) The assets belonging to any such Portfolio shall be
charged with the liabilities in respect to such Portfolio
and shall be charged with their share of the general
liabilities of the Trust. The determination of the Trustees
shall be conclusive as to the amount of liabilities,
including accrued expenses and reserves, and as to the
allocation of the same as to a given Portfolio, and as to
whether the same, or general assets of the Trust, are
allocated to one or more Portfolios. The liabilities so
allocated to a Portfolio are herein referred to as
"liabilities belonging to" such Portfolio.
6
<PAGE>
(e) At all meetings of Shareholders, each shareholder
of each Share of each Portfolio shall be entitled to one
vote for each Share, irrespective of the Portfolio, standing
in his name on the books of the Trust, except that where a
vote of the holders of the Shares of any Portfolio, or of
more than one Portfolio, voting by Portfolio, is required by
the 1940 Act and/or Massachusetts law as to any proposal,
only the holders of such Portfolio or Portfolios, voting by
Portfolio, shall be entitled to vote upon such proposal and
the holders of any other Portfolio or Portfolios shall not
be entitled to vote thereon. Any fractional Share, if an
such fractional Shares are outstanding, shall carry
proportionately all the rights to vote and the right to
receive dividends. There shall be no cumulative voting
rights with respect to any Shares or Portfolio of the Trust.
(f) When the Trust has more than one Portfolio:
(i) the redemption rights provided to the
holders of the Trust's Shares in Section 6.9
shall be deemed to apply only to the assets
belonging to the Portfolio in question; and
(ii) the net asset value per Share
computation as provided for in Section 10.4
shall be applied as if each Portfolio were
the Trust as referred to in such
computation, but with its assets limited to
the assets belonging to such Portfolio and
its liabilities limited to the liabilities
belonging to such Portfolio.
7. The second and third sentences of Section 8.6 of Article VIII of the
Declaration of Trust are amended so that as amended, they will read as follows:
A signed copy of such report and opinion shall be
filed with the Trustees, and
7
<PAGE>
copies of such reports shall be mailed or delivered
to all Shareholders with the time required by the
1940 Act.
8. The second sentence of Section 9.2 of Article IX of the Declaration
of Trust is amended so that as amended it will read as follows:
Election of Trustees shall be by a plurality of the
votes cast.
9. Section 13.2 of Article XIII is amended by deleting therefrom the
words "with the assumption by such transferee of the liabilities of the Trust"
and substituting therefor the following:
upon making provision for the payment of Trust
liabilities, by assumption by the transferee or
otherwise.
10. The following additional Sections are hereby added to Article XIV
of the Declaration of Trust.
14.6 CONSTRUCTION OF 1940 ACT. Whenever any action is
taken under this Declaration of Trust under any
authorization to take action which is permitted by the 1940
Act, such action shall be deemed to have been properly taken
if such action is in accordance with the construction of the
1940 Act then in effect as expressed in "no action" letters
of the staff of the Commission or any release, rule,
regulation or order under the 1940 Act or any decision of a
court of competent jurisdiction, notwithstanding that any of
the foregoing shall later be found to be invalid or
otherwise reversed or modified by any of the foregoing.
14.7 ACTION OF PROSPECTUS OR PROXY STATEMENT. Any
action which may be taken by the Trustees under this
Declaration of Trust or its By-laws may be taken by the
description thereof in the then effective prospectus
8
<PAGE>
relating to the Shares under the Securities Act of 1933 of
in any proxy statement of the Trust rather than by formal
resolution of the Board.
IN WITNESS WHEREOF, the undersigned sole shareholder of the Trust and a
majority of all of the Trustees of the Trust have caused these presents to be
executed on the 30th day of December, 1983.
Bankers National Life Insurance Company,
as sole shareholder
By /S/ RICHARD E. COLEMAN
-------------------------------
PRESIDENT
------------------------------
(Title)
/S/ RICHARD E. COLEMAN
------------------------------
Trustee
/S/ THOMAS G. FERGUSON
------------------------------
Trustee
/S/ BRUCE W. KUNZMAN
------------------------------
Trustee
/S/ ROBERT M. GRAHAM
------------------------------
Trustee
9
<PAGE>
AMENDMENT
TO
AMENDED DECLARATION OF TRUST
OF
CONSECO SERIES TRUST
(formerly BANKERS NATIONAL SERIES TRUST)
WHEREAS, the Declaration of Trust of Conseco Series Trust (formerly
Bankers National Series Trust) (the "Trust"), dated November 15, 1982 was duly
filed in the office of the Secretary of the Commonwealth of Massachusetts; and
WHEREAS, Article XIII of the Declaration of Trust permits an amendment
or alteration to the Declaration of Trust by an instrument or instruments signed
by a majority of the Trustees and by the holders of a majority of the Trust's
shares; and
WHEREAS, Section 1.1 of Article I of the Declaration of Trust
authorizes the Trustees to adopt any name for the Trust as they deem
appropriate; and
WHEREAS, this amendment has been so authorized,
NOW, THEREFORE, this Amendment WITNESSETH:
1. Section 1.1 of Article I is hereby amended by deleting the words
"Bankers National Series Trust" and
<PAGE>
replacing them with "Conseco Series Trust", effective March 11, 1992.
IN WITNESS WHEREOF, the undersigned being a majority of all of the
Trustees of the Trust and the sole shareholder of the Trust have caused these
presents to be executed on the 3rd day of August, 1992.
2
<PAGE>
/S/ ROLLIN M. DICK
--------------------------------------
(Trustee)
/S/ J. DEAN CHRISTY
--------------------------------------
(Trustee)
/S/ WILLIAM O. DANIEL
---------------------------------------
(Trustee)
/S/ WARREN KINCAID
---------------------------------------
(Trustee)
BANKERS NATIONAL LIFE INSURANCE COMPANY,
as sole shareholder
/S/ DONALD F. GONGAWARE
---------------------------------------
PRESIDENT
---------------------------------------
(Title)
3
BY-LAWS
These By-laws are made and adopted pursuant to the Declaration of Trust
establishing BANKERS NATIONAL SERIES TRUST (the "Trust"), as from time to time
amended, restated or modified (the "Declaration"). All words and terms
capitalized in these By-laws shall have the meaning or meanings set forth for
such words or terms in the Declaration. If any term or provision of these
By-laws shall be in conflict with any term or provision of the Declaration, the
terms and provisions of the Declaration shall be controlling.
ARTICLE I
SHAREHOLDERS' MEETINGS AND RECORD DATES
Section 1.1 GENERAL. All meetings of the Shareholders shall be held, pursuant to
written notice, within or without the Commonwealth of Massachusetts and on such
day and at such time as the Trustees shall designate. Notice shall be given by
mail not less than ten (10) nor more than sixty (60) days prior to the day named
for the meeting, and shall be deemed to have been properly given to a
Shareholder when deposited in the United States mail with first class postage
prepaid or in a telegraph office with charges prepaid, directed to his address
as given to a transfer agent or such other officer or agent of the Trust as
shall keep the register for entry thereon. A certificate or affidavit by the
Secretary or an Assistant Secretary or a transfer agent shall be prima facie
evidence of the giving of any notice required by the Declaration.
Section 1.2 NOTICE OF ADJOURNMENTS. Upon adjournment of any meeting of
Shareholders, it shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted thereat, other than by announcement
at the meeting at which such adjournment is taken. At any adjourned meeting at
which a quorum shall be present or represented, only such business may be
transacted which might have been transacted at the meeting originally called. If
after the adjournment, the Trustees fix a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each Shareholder of
record on the new record date entitled by law to receive such notice.
Section 1.3 CHAIRMAN. The Chairman shall act as chairman at all meetings of the
Shareholders; in his absence, the President shall act as chairman; andin the
absence of the Chairman and
<PAGE>
President, the Trustee or Trustees present at each meeting may elect a temporary
chairman for the meeting, who may be one of themselves.
Section 1.4 PROXIES: VOTING. Shareholders may vote at any meeting, or by consent
in writing without a meeting pursuant to the Declaration, either in person or by
proxy. Every proxy shall be executed in writing by the Shareholder, or by his
duly authorized attorney-in-fact, with each full share represented at the
meeting being entitled to one vote and fractional shares to fractional votes. A
proxy, unless coupled with an interest, shall be revocable at will,
notwithstanding any other agreement or any provision in the proxy to the
contrary, but the revocation of a proxy shall not be effective until notice
thereof has been given to the Secretary, or such other officer or agent of the
Trust as the Secretary may direct. No proxy shall be valid after eleven (11)
months from the date of its execution, unless a longer time is expressly stated
in such proxy, but in no event shall a proxy, unless coupled with an interest,
be voted on after three (3) years from the date of its execution. A proxy shall
not be revoked by the death or incapacity of the maker unless, before the vote
is counted or the authority is exercised, written notice of such death or
incapacity is given to the Secretary or to such other officer or agent of the
Trust as the Secretary may direct.
Section 1.5 CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATES. For the purpose
of determining the Shareholders who are entitled to notice of or to vote or act
at any meeting, including an)' adjournment thereof, or who are entitled to
participate in any dividend or distribution, or for any other proper purpose,
the Trustees may from time to time close the transfer books or fix a record date
in the manner provided in the Declaration. If the Trustees do not, prior to any
meeting of Shareholders, so fix a record date or close the transfer books, then
the record date shall be the close of business of the day next preceding the
date of mailing of notice of the meeting, or in the case of a dividend or other
distribution, the close of business on the day upon which the dividend or
distribution resolution is adopted, or on such later day as the Trustees may
determine.
Section 1.6 INSPECTORS OF ELECTION. In advance of any meeting of Shareholders,
the Trustees may appoint Inspectors of Election, who may but need not be
Shareholders, to act at such meeting or any adjournment thereof. If Inspectors
of Election are not so appointed, the chairman of any such meeting may, and upon
the request of any Shareholder or his proxy shall, make such appointment at the
meeting. The number of Inspectors shall be either one (1) or three (3). If
appointed at the meeting on the
2
<PAGE>
request of one or more Shareholders or proxies, a majority of Shares present
shall determine whether one or three Inspectors are to be appointed, but failure
to allow such determination by the Shareholders or proxies shall not affect the
validity of the appointment of Inspectors of Election. In case any person
appointed as Inspector fails to appear or fails or refuses to act, the vacancy
must be filled by appointment made by the Trustees in advance of the convening
of the meeting, or at the meeting by the person acting as chairman. The
Inspectors of Election shall determine the number of Shares outstanding, the
Shares represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies; shall receive votes, ballots or consents; 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 or consents,
determine the results, and do such other acts as may be proper to conduct the
election or vote with impartiality and fairness to all Shareholders. If there
are three Inspectors of 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 chairman of the meeting, or of any Shareholder or his proxy,
the Inspectors of Election shall make a written report of any challenge or
question or matter determined by them and execute a certificate of any fact
found by them.
ARTICLE II
TRUSTEES
Section 2.1 REGULAR MEETINGS. Regular meetings of the Trustees may be held at
such time and place as the Trustees may by resolution from time to time
determine without call or notice. if any day fixed for a regular meeting shall
be a legal holiday in the Commonwealth of Massachusetts or the place designated
for regular meetings, then the meeting shall be held at the same hour and place
on the next succeeding business day.
Section 2.2 SPECIAL MEETINGS. Special Meetings of the Trustees shall be held
upon the call of the Chairman, the President, or the Secretary, or any two
Trustees, at such time, on such day, and at such place, as shall be designated
in the notice of the meeting.
Section 2.3 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting,
specifying the place, day and hour of the meeting, shall be given to a Trustee
either personally or by sending a copy thereof through the mail, with first
class postage prepaid, or by telegram, charges prepaid, to his address appearing
on the books of the Trust or supplied by him to the Trust for the purpose of
notice, at least forty-eight (48) hours, prior to the
3
<PAGE>
time named for such meeting. If the notice is sent by mail or by telegraph, it
shall be deemed to have been given to the person entitled thereto when deposited
in the United States mail, postage prepaid, or with a telegraph office, charges
prepaid, for transmission to such person. Notice by telephone shall constitute
personal delivery for these purposes. Neither the business to be transacted at,
nor the purpose of, any meeting of the Board of Trustees need be stated in the
notice or waiver of notice of such meeting, and no notice need be given of
action proposed to be taken by unanimous consent.
Section 2.4 WAIVER OF NOTICE. Whenever any notice is required by the Declaration
or these By-laws to be given to a Trustee, a waiver thereof in writing, whether
signed by him before or after the meeting, shall be deemed equivalent to the
giving of due notice. Attendance of any Trustee at any meeting shall constitute
a waiver of notice of such meeting except where such Trustee attends the meeting
for the express purpose of objecting to the transaction of any business because
the meeting was not lawfully called or convened.
Section 2.5 ADJOURNMENT. Adjournment or adjournments of any meeting may be
taken, and it shall not be necessary to give any notice of the adjourned meeting
or of the business to be transacted thereat other than by announcement at the
meeting at which such adjournment is taken. At any adjourned meeting at which a
quorum shall be present, any business may be transacted which might have been
transacted at the meeting originally called.
Section 2.6 EXECUTIVE COMMITTEE. Subject to the provisions of Section 3.4
hereof, the Trustees may, by resolution adopted by a majority thereof, designate
one or more of their number to constitute an Executive Committee, and may
designate one or more of their number as alternate members of the Executive
Committee, who may replace any absent or disqualified member at any meeting of
the Committee. The President shall be notified in advance of all Executive
Committee meetings, and whenever feasible or convenient for him, the President
shall attend meetings of the Executive Committee and serve ex officio, as a
non-voting advisory member. Any such Committee, to the extent provided in such
resolution and the Declaration, shall have and exercise the authority of the
Trustees in the management of the business and affairs of the Trust and the
management and disposition of Trust Property. Vacancies in the membership of the
Committee shall be filled by the Trustees. In the absence or disqualification of
any member of such Committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another Trustee to act at the meeting in the
place of any such
4
<PAGE>
absent or disqualified member. The executive Committee shall keep regular
minutes of its proceedings and report the same to the Trustees.
Section 2.7 CHAIRMAN: RECORDS. The Chairman shall act as chairman at all
meetings of the Trustees; in his absence the Trustees present may elect one of
their number to act as temporary chairman. The results of all actions taken at a
meeting of the Trustees, or by written consents of the Trustees without a
meeting, shall be recorded by the Secretary.
Section 2.8 MEETING OF SHAREHOLDERS. Meetings of Shareholders shall be held at
such times and in such places as the Trustees shall, by resolution, direct.
ARTICLE III
OFFICERS, AGENTS AND EMPLOYEES
Section 3.1 OFFICERS OF THE TRUST. The officers of the Trust shall be a Chairman
chosen from among the Trustees and a President, a Secretary and a Treasurer or
persons who shall act as such regardless of the name or title by which they may
be designated, elected or appointed. One or more Vice-Presidents, one or more
Assistant Secretaries and Assistant Treasurers, and such other officers or
agents as the Trustees shall deem necessary or appropriate to carry out the
business of the Trust also may be elected or appointed. Any two or more offices
may be held by the same person, except those of President and Secretary and
provided that no officer shall execute, acknowledge or verify any instrument in
more than one capacity if such instrument is required to be executed,
acknowledged or verified by two or more officers. In addition to the powers and
duties prescribed by the Declaration and these By-laws, the officers and
assistant officers shall have such authority and shall perform such duties as
from time to time shall be prescribed by the Trustees. The officers and
assistant officers of the Trust shall hold office until their successors are
chosen and have qualified, unless their term of office is sooner terminated, by
death, resignation or removal. The Trustees may amend the title of any officer
or ASSISTANT officer or create a new office, by utilizing a word or words
descriptive of his powers or the general character of his duties. If the office
of any officer or assistant officer becomes vacant for any reason, the vacancy
may be filled by the Trustees at any time.
Section 3.2 REMOVAL OF OFFICERS AGENTS OR EMPLOYEES. Any officer, assistant
officer, agent or employee may be removed or have his authority revoked at any
time, with or without cause,
5
<PAGE>
by a majority of the Trustees, whenever in their judgment the best interests of
the Trust will be served thereby, but such removal or revocation shall be
without prejudice to the rights, if any, of the person so removed to receive
compensation or other benefits in accordance with the terms of existing
contracts. Any agent or employee likewise may be removed by the President or
Chairman or, subject to the supervision of the President or Chairman, by the
person having authority with respect to the appointment of such agent or
employee Any officer may resign at any time by written notice signed by such
officer and delivered or mailed to the Chairman President, or Secretary, and
such resignation shall take effect upon receipt by the Chairman, President, or
Secretary, or at a later date according to the terms of such notice.
Section 3.3 BONDS AND SURETY. Any officer may be required by the Trustees to be
bonded for the faithful performance of his duties in such amount and with such
sureties as the Trustees may determine.
Section 3.4 CHAIRMAN OF THE BOARD OF TRUSTEES: POWERS AND DUTIES. The Chairman
shall, if present, preside at all meetings of the Shareholders and of the
Trustees. He shall perform such other powers and duties as may from time to time
be assigned to him by the Trustees.
Section 3.5 THE PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the Trustees, the President shall be the chief operating officer of the
Trust and, subject to the control of the Trustees, shall have general
supervision, direction and control of the business of the Trust and of its
employees and shall exercise such general powers of management as are usually
vested in the office of president of a Massachusetts business corporation. In
the absence of the Chairman, the President shall preside at all meetings of the
Shareholders and of the Trustees. Subject to direction of the Trustees, the
President shall have power in the name and on behalf of the Trust to execute any
and all loan documents, contracts, agreements, deeds, mortgages, and other
instruments in writing, and to employ and discharge employees and agents of the
Trust. Unless otherwise directed by the Trustees, the President shall have full
authority and power, on behalf of all of the Trustees, to attend and to act and
to vote, on behalf of the Trust at any meetings of business organizations in
which the Trust holds an interest, or to confer such powers upon any other
persons, by executing any proxies DULY authorizing such persons. The President
shall have such further authorities and duties as the Trustees shall from time
to time determine and shall be an ex officio member of the Executive Committee
and of all standing committees (if any) appointed by the Trustees.
6
<PAGE>
Section 3.6 VICE-PRESIDENT: POWERS AND DUTIES. The Vice President, if any,
shall, in the absence or disability of the President, perform all the duties of
the President, and when so acting shall have all the powers and be subject to
all of the restrictions upon the President. If there be more than one
Vice-President, their seniority in performing such duties and exercising such
powers shall be in order of their rank as fixed by the Trustees or, if more than
one and not ranked, then by determination of the Trustees, or, in the absence of
such determination, by the order in which they were first elected. Subject to
the direction of the Trustees, and the President, each Vice-President shall have
the power in the name and on behalf of the Trust to execute any and all loan
documents, contracts, agreements, deeds, mortgages and other instruments in
writing, and, in addition, shall have such other duties and powers as shall be
designated from time to time by the Trustees or the President and as by general
usage appertain to the office.
Section 3.7 SECRETARY: POWERS AND DUTIES. The Secretary shall keep the minutes
of all meetings of, and record all votes of, Shareholders, Trustees and the
executive or other committees, if any. He shall give, or cause to be given, as
required by the Declaration or these By-laws, notice of meetings of the
Shareholders and of the Trustees, and shall perform such other duties as may be
prescribed by the Trustees, or the President. He shall keep in safe custody the
seal of the Trust, and may affix the same, or, if permitted, a facsimile
thereof, to any instrument executed by the Trust and attest the seal and the
signature or signatures of the officer or officers executing such instrument on
behalf of the Trust. The Secretary shall also perform any other duties commonly
incident to such office in a Massachusetts business corporation, and shall have
such other authorities and duties, as the Trustees or the President shall from
time to time determine.
Section 3.8 TREASURER POWERS AND DUTIES. Except as otherwise directed by the
Trustees, the Treasurer shall have the general supervision of the monies, funds,
securities, notes receivable and other valuable papers and documents of the
Trust, and shall have and exercise under the supervision of the Trustees and
President all powers and duties normally incident to his office. He may endorse
for deposit or collection all notes, checks and other instruments payable to the
Trust or to its order. He shall deposit all funds of the Trust in such
depositories as the Trustees shall designate. He shall be responsible for such
disbursement of the funds of the Trust as may be ordered by the
7
<PAGE>
Trustees, or the Chairman or the President. He shall keep accurate account of
the books of the Trust's transactions which shall be the property of the Trust,
and which, together with all other property of the Trust in his possession,
shall be subject at all times to the inspection and control of the Trustees.
Unless the Trustees shall otherwise determine, the Treasurer shall be the
principal financial and accounting officer of the Trust. He shall have such
other duties and authorities as the Trustees or the President shall from time to
time determine, Notwithstanding anything to the contrary herein contained, the
Trustees may authorize the Investment Adviser, the Custodian, or the Transfer
Agent to maintain bank accounts and deposit and disburse funds of the Trust on
behalf of the Trust.
Section 3.9 DELEGATION OF OFFICERS' DUTIES. The Trustees ma, appoint such other
officers and assistant officers as they shall from time to time determine to be
necessary or desirable in order to conduct the business of the Trust. Assistant
officers shall act generally in the absence of the officer whom they assist,
shall assist that officer in the duties of his office and shall have such other
duties and authority as may be conferred upon them by the Trustees or delegated
to them by the President. In case of the absence or disability of any officer or
assistant officer of the Trust or for any other reason that the Trustees ma'
deem sufficient, the Trustees may delegate or authorize the delegation of his
powers or duties, for the time being, to any person.
ARTICLE IV
Shares
Section 4.1 EVIDENCE OF SHARE OWNERSHIP. Certificates representing the Trust's
Shares shall not be physically issued. Shares in the Trust shall be recorded on
a register maintained for the Trust by the Transfer Agent appointed by the
Trustees. The holders of Shares so maintained shall have the same rights of
ownership with respect to such shares as if certificates had been issued. The
Trustees shall, from time to time, by appropriate resolution, establish such
rules for authentication of Shareholders for purposes of purchase and redemption
as they shall deem necessary.
ARTICLE V
Miscellaneous
Section 5.1 DEPOSITORIES. The funds of the Trust shall be deposited in such
depositories as the Trustees shall designate in accordance with the provisions
of the Declaration, and shall be drawn out on checks, drafts or other orders
signed by such
8
<PAGE>
officer, officers, agent or agents (including the Adviser), as the Trustees may
from time to time authorize.
Section 5.2 SIGNATURES. All contracts and other instruments shall be executed on
behalf of the Trust by such officer, officers, agent or agents, as provided in
the Declaration or these By-laws or as the Trustees may from time to time by
resolution provide.
Section 5.3 SEAL. The seal of the Trust shall have inscribed thereon the words
"Bankers National Series Trust. a Massachusetts Voluntary Association, Common
Seal, 1982." Such seal may be used by causing it or a facsimile thereof, to be
impressed or affixed or in any manner reproduced and attested as if it had been
impressed and attested manually.
ARTICLE VI
AMENDMENT OF BY-LAWS
Section 6.1 AMENDMENT AND REPEAL OF BY-LAWS. In accordance with the Declaration,
the Trustees have the power to alter, amend or repeal the By-laws or adopt new
By-laws at any time. Action by the Trustees with respect to the By-laws shall be
taken by an affirmative vote of a majority of the Trustees. The Trustees shall
in no event adopt By-laws which are in conflict with the Declaration, and any
apparent inconsistency shall be construed in favor of the related provisions in
the Declaration.
*****
The Declaration of Trust establishing Bankers National Series Trust, dated
November 15, 1982, a copy of which, together with all amendments thereto (the
"Declaration"), is on file in the office of the Secretary of the Commonwealth of
Massachusetts, provides that the name "Bankers National Series Trust" refers to
the Trustees under the Declaration collectively as Trustees, but not as
individuals or personally; and no Trustee shareholder, officer, employee or
agent of Bankers National Series Trust shall be held to any personal liability,
nor shall resort be had to their private property for the satisfaction of any
obligation or claim or otherwise in connection with the affairs of said Bankers
National Series Trust but the Trust Property only shall be liable.
INVESTMENT ADVISORY AGREEMENT
-----------------------------
BETWEEN BANKERS NATIONAL SERIES TRUST
AND
BANKERS INVESTMENT ADVISER INC.
It is hereby agreed by and between BANKERS NATIONAL SERIES TRUST (the "Trust")
and BANKERS INVESTMENT ADVISER INC. (the "Adviser") as follows:
I
The Trust hereby appoints the Adviser to act as the investment adviser to the
Trust in relation to its class of shares entitled the BNL Multiple Strategies
Portfolio (the "Portfolio") and to manage the investment and reinvestment of
the assets of the Portfolio and to provide certain administrative services to
the Trust in connection with the Portfolio, subject at all times to the
direction and control of the Trustees of the Trust. The Adviser accepts such
appointment subject to the terms and conditions as hereunder provided.
II
The Adviser agrees to provide continuous professional investment management of
the investments of the Portfolio. The Adviser shall provide the Trust with an
investment program complying with the investment objectives, policies and
restrictions of the Portfolio as more fully set forth in the Registration
Statement of the Trust as filed with the Securities and Exchange Commission and
as further amended from time to time. In carrying out the investment program of
the Portfolio, the Adviser shall:
1. Provide investment advice and, in general, supervise the management and
investment program of the Portfolio;
<PAGE>
2. Furnish office space for the Trust;
3. Provide the Trust with such accounting data concerning the investment
activities of the Portfolio as shall be required to prepare and file all
periodic financial reports and returns required to be filed with the
Securities and Exchange Commission and any other regulatory agency,
provided that such data may be provided by the Trust's custodian bank at
the expense of the Trust pursuant to an agreement between the Trust and
said bank;
4. Continuously monitor compliance by the Trust as to the Portfolio in its
investment activities with the requirements of the Investment Company
Act and the rules promulgated thereunder pursuant thereto; and
5. Render to the Trust such periodic and special reports as to the
Portfolio as may be reasonably requested with respect to matters
relating to the duties of the Adviser.
III
To the extent that the Trust or the Adviser is a party to any sub-advisory
agreements with persons other than the Adviser concerning any of the foregoing,
the Adviser shall be responsible for overseeing the performance of each such
sub-adviser.
IV
The Trust will pay an investment advisory fee to the Adviser for compensation
for investment advisory services rendered in connection with the management of
the Portfolio. Such fee shall be equal, on an annual basis, to .65% of the
average daily value of the net assets of the Portfolio.
The amounts payable to the Adviser shall be determined as of the close of
business each day, and shall, except as set
2
<PAGE>
forth below, be based upon the value of net assets of the Portfolio computed in
accordance with the Declaration of Trust of the Trust; and shall be paid in
arrears whenever requested by the Adviser.
V
It is understood and agreed that the Adviser and/or its affiliated companies and
persons may act and may continue to act as investment adviser to other clients,
accounts, and funds, and that the services to be provided hereunder are not
deemed to be exclusive. In addition, it is understood that the individuals who
participate on behalf of the Adviser in the performance of its duties under this
Agreement will not necessarily devote their full time thereto, and nothing
contained herein shall be deemed to limit or restrict their right to engage in
and devote time and attention to other businesses or to render other services of
whatever kind or nature.
VI
The Adviser agrees that all records which it maintains for the Trust shall be
the property of the Trust and that it will surrender promptly to the designated
officers of the Trust any of such records upon its request. The Adviser further
agrees to preserve for the period prescribed by the rules and regulations of the
Securities and Exchange Commission all such records as are required to be
maintained pursuant to said rules. The Adviser agrees that it will maintain all
records and accounts regarding the investment activities of the Portfolio in a
confidential manner. All such accounts or records shall be made available within
five (5) business days of request to the accountants or auditors of the Trust
during regular business hours at the Adviser's offices upon reasonable prior
written notice. In addition, the Adviser will provide any materials reasonably
related to the investment advisory services provided hereunder as may be
reasonably requested in writing by the designated officers of the Trust or as
may be required by any governmental agency having jurisdiction.
3
<PAGE>
VII
The Adviser shall give to the Trust the benefit of its best judgment, efforts
and facilities in rendering services hereunder.
The Adviser shall at all times be guided by and be subject to the Trust's
investment policies, and provisions of its Declaration of Trust and By-Laws as
each shall from time to time be amended, and by the decision and determination
of the Trustees.
This Agreement shall be performed in accordance with the requirements of the
Investment Company Act of 1940 (the "1940 Act"), the Investment Advisers Act of
1940, the Securities Act of 1933, and the Securities Exchange Act of 1934, to
the extent of such Acts. Insofar as applicable to the Adviser as an investment
adviser and affiliated person of the Trust, the Adviser shall comply with the
provisions of the 1940 Act, the Investment Advisers Act of 1940, and the
respective Rules and Regulations of the Securities and Exchange Commission
thereunder.
In the absence of willful misfeasance, bad faith, gross negligence or reckless
disregard of obligations or duties hereunder on the part of the Adviser (and its
officers, directors, agents, employees, controlling persons, shareholders and
any other person or entity affiliated with the Adviser or retained by it to
perform or assist in the performance of its obligations under this Agreement)
the Adviser shall not be subject to liability to the Trust or to any Shareholder
of the Trust for any act or omission in the course of, or connect with,
rendering services hereunder, including without limitation, any error of
judgment or mistake of law or for any loss suffered by any of them in connection
with the matter to which Agreement relates, except to the extent specified in
Section 36(b) of the 1940 Act concerning loss resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services.
4
<PAGE>
VIII
The Adviser understands that the obligations of this agreement are not binding
upon any shareholder of the Trust personally, but bind only the Trust's
property; the Adviser represents that it has notice of the provisions of the
Trust's Declaration of Trust disclaiming shareholders liability for acts or
obligations of the Trust.
IX
This Agreement, unless sooner terminated, shall go into effect on the date on
which it is approved by a vote of the holders of a majority (as defined in the
1940 Act) of the outstanding voting securities of the Portfolio and shall
continue for two years and thereafter from year to year so long as such
continuance is specifically approved at least annually (a) by the Trustees of
the Trust, and (b) by the vote of a majority of those Trustees of the Trust who
are not parties to this Agreement or interested persons (as defined in the 1940
Act) of any such party, cast in person at a meeting called for the purpose of
voting on such approval, provided, this Agreement may be terminated by the Trust
at any time, without the payment of any penalty, by vote of a majority of the
Trustees of the Trust, or by a vote of the holders of a majority (as defined in
the 1940 Act) of the outstanding voting securities of the Trust on sixty (60)
days written notice to the Adviser, or by the Adviser at any time, without
payment of any penalty, on sixty (60) days written notice to the Trust. This
Agreement shall terminate automatically upon its assignment (as defined in the
1940 Act).
This Agreement may be amended only in writing by the parties hereto. Any
amendment to this Agreement requires approval, prior to the effectiveness of
such amendment, (a) by vote of a majority of those Trustees of the Trust who are
not parties to this agreement or interested persons of any such party, cast in
person called for the purpose of voting on such amendment, and (b) by vote of
the holders of majority (as defined in the 1940 Act) of the outstanding voting
securities of the Portfolio.
5
<PAGE>
IN WITNESS WHEREOF the parties hereto have caused this instrument to be signed
on their behalf by their respective officers there unto duly authorized.
BANKERS NATIONAL SERIES TRUST
Date: 5/1/87 By: /s/ Richard E. Coleman
--------------------- -----------------------------
BANKERS INVESTMENT ADVISER INC.
Date: 5/1/87 By: /s/ Kenneth F. Judkowitz
--------------------- -----------------------------
6
<PAGE>
INVESTMENT ADVISORY AGREEMENT
-----------------------------
BETWEEN CONSECO SERIES TRUST
AND
CONSECO CAPITAL MANAGEMENT, INC.
It is hereby agreed by and between CONSECO SERIES TRUST (the "Trust")
and CONSECO CAPITAL MANAGEMENT, INC. (the "Adviser") as follows:
The Trust hereby appoints the Adviser to act as the investment adviser
to the Trust in relation to its class of shares entitled the Corporate Bond
Portfolio (the "Portfolio") and to manage the investment and reinvestment of the
assets of the Portfolio and to provide certain administrative services to the
Trust in connection with the Portfolio, subject at all times to the direction
and control of the Trustees of the Trust. The Adviser accepts such appointment
subject to the terms and conditions as hereunder provided.
II
The Adviser agrees to provide continuous professional investment
management of the investments of the Portfolio. The Adviser shall provide the
Trust with an investment program complying with the investment objectives,
policies and restrictions of the Portfolio as more fully set forth in the
Registration Statement of the Trust as filed with the Securities and Exchange
Commission and as further amended from time to time. In carrying out the
investment program of the Portfolio, the Adviser shall:
1. Provide investment advice and, in general, supervise the
management and investment program of the Portfolio;
2. Furnish office space for the Trust;
3. Provide the Trust with such accounting data concerning the
investment activities of the Portfolio as shall be required to
prepare and file all periodic financial reports and returns
required to be filed with the
<PAGE>
Securities and Exchange Commission and any other regulatory
agency, provided that such data may be provided by the Trust's
custodian bank at the expense of the Trust pursuant to an
agreement between the Trust and said bank;
4. Continuously monitor compliance by the Trust as to the Portfolio
in its investment activities with the requirements of the
Investment Company Act and the rules promulgated thereunder
pursuant thereto; and
5. Render to the Trust such periodic and special reports as to the
Portfolio as may be reasonably requested with respect to matters
relating to the duties of the Adviser.
III
To the extent that the Trust or the Adviser is a party to any
sub-advisory agreements with persons other than the Adviser concerning any of
the foregoing, the Adviser shall be responsible for overseeing the performance
of each such sub-adviser.
IV
The Trust will pay an investment advisory fee to the Adviser for
compensation for investment advisory services rendered in connection with the
management of the Portfolio. Such fee shall be equal, on an annual basis, to
0.50% of the average daily value of the net assets of the Portfolio.
The amounts payable to the Adviser shall be determined at of the close
of business each day, and shall, except as set forth below, be based upon the
value of net assets of the Portfolio computed in accordance with the Declaration
of Trust of the Trust; and shall be paid in arrears whenever requested by the
Adviser.
V
It is understood and agreed that the Adviser and/or its affiliated
companies and persons may act and may continue to act as investment adviser to
other clients, accounts, and funds, and that the services to be provided
hereunder are not deemed to be exclusive. In addition, it is understood that the
2
<PAGE>
individuals who participate on behalf of the Adviser in the performance of its
duties under this Agreement will not necessarily devote their full time thereto,
and nothing contained herein shall be deemed to limit or restrict their right to
engage in and devote time and attention to other businesses or to render other
services of whatever kind or nature.
VI
The Adviser agrees that all records which it maintains for the Trust
shall be the property of the Trust and that it will surrender promptly to the
designated officers of the Trust any of such records upon its request. The
Adviser further agrees to preserve for the period prescribed by the rules and
regulations of the Securities and Exchange Commission all such records as are
required to be maintained pursuant to said rules. The Adviser agrees that it
will maintain all records and accounts regarding the investment activities of
the Portfolio in a confidential manner. All such accounts or records shall be
made available within five (5) business days of request to the accountants or
auditors of the Trust during regular business hours at the Adviser's offices
upon reasonable prior written notice. In addition, the Adviser will provide any
materials reasonably related to the investment advisory services provided
hereunder as may be reasonably requested in writing by the designated officers
of the Trust or as may be required by any governmental agency having
jurisdiction.
VII
The Adviser shall give to the Trust the benefit of its best judgment,
efforts and facilities in rendering services hereunder.
The Adviser shall at all times be guided by and be subject to the
Trust's investment policies, the provisions of its Declaration of Trust and
By-Laws as each shall from time to time be amended, and by the decision and
determination of the Trustees.
This Agreement shall be performed in accordance with the requirements
of the Investment Company Act of 1940 (the "1940 Act"), the Investment Advisers
Act of 1940, the Securities Act of 1933, and the Securities Exchange Act of
1934, to the extent
3
<PAGE>
that the subject matter of this Agreement is within the purview of such Acts.
Insofar as applicable to the Adviser as an investment adviser and affiliated
person of the Trust, the Adviser shall comply with the provisions of the 1940
Act, the Investment Advisers Act of 1940, and the respective Rules and
Regulations of the Securities and Exchange Commission thereunder.
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the Adviser
(and its officers, directors, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this Agreement) the Adviser shall not be subject to liability to the Trust or to
any Shareholder of the Trust for any act or omission in the course of, or
connect with, rendering services hereunder, including without limitation, any
error of judgment or mistake of law or for any loss suffered by any of them in
connection with the matters to which Agreement relates, except to the extent
specified in Section 36(b) of the 1940 Act concerning loss resulting from a
breach of fiduciary duty with respect to the receipt of compensation for
services.
VIII
The Adviser understands that the obligations of this Agreement are not
binding upon any shareholder of the Trust personally, but bind only the Trust's
property; the Adviser represents that it has notice of the provisions of the
Trust's Declaration of Trust disclaiming shareholder liability for acts or
obligations of the Trust.
IX
This Agreement, unless sooner terminated, shall go into effect on the
date on which it is approved by a vote of the holders of a majority (as defined
in the 1940 Act) of the outstanding voting securities of the Portfolio and shall
continue for two years and thereafter from year to year so long as such
continuance is specifically approved at least annually (a) by the Trustees of
the Trust, and (b) by the vote of a majority of those Trustees of the Trust who
are not parties to this Agreement or interested persons (as defined in the 1940
Act) of any such party, cast in person at a meeting called for
4
<PAGE>
the purpose of voting on such approval, provided, this Agreement may be
terminated by the Trust at any time, without the payment of any penalty, by vote
of a majority of the Trustees of the Trust, or by a vote of the holders of a
majority (as defined in the 1940 Act) of the outstanding voting securities of
the Trust on sixty (60) days written notice to the Adviser, or by the Adviser at
any time, without payment of any penalty, on sixty (60) days written notice to
the Trust. This Agreement shall terminate automatically upon its assignment (as
defined in the 1940 Act).
This Agreement may be amended only in writing by the parties hereto.
Any amendment to this Agreement requires approval, prior to the effectiveness of
such amendment, (a) by vote of a majority of those Trustees of the Trust who are
not parties to this Agreement or interested persons of any such party, case in
person called for the purpose of voting on such amendment, and (b) by vote of
the holders of a majority (as defined in the 1940 Act) of the outstanding voting
securities of the Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be signed on their behalf by their respective officers thereunto duly
authorized.
CONSECO SERIES TRUST
By: /s/ ROLLIN M. DICK
-----------------------------
CONSECO CAPITAL MANAGEMENT, INC.
By: /s/ WALTER T. KIRKBRIDE
-----------------------------
January 1, 1993
5
<PAGE>
INVESTMENT ADVISORY AGREEMENT
-----------------------------
BETWEEN BANKERS NATIONAL SERIES TRUST
AND
BANKERS INVESTMENT ADVISER INC.
It is hereby agreed by and between BANKERS NATIONAL SERIES TRUST (the
Trusts) and BANKERS INVESTMENT ADVISER INC. (the "Adviser.) as follows:
I
The Trust hereby appoints the Adviser to act as the investment adviser
to the Trust in relation to its class of shares entitled the BNL Common Stock
Portfolio (the "Portfolio") and to manage the investment and reinvestment of the
assets of the Portfolio and to provide certain administrative services to the
Trust in connection with the Portfolio, subject at all times to the direction
and control of the Trustees of the Trust. The Adviser accepts such appointment
subject to the terms and conditions as hereunder provided.
II
The Adviser agrees to provide continuous professional investment
management of the investments of the Portfolio. The Adviser shall provide the
Trust with an investment program complying with the investment objectives,
policies and restrictions of the Portfolio as more fully set forth in the
Registration Statement of the Trust as filed with the Securities and Exchange
Commission and as further amended from time to time. In carrying out the
investment program of the Portfolio, the Adviser shall:
1. Provide investment advice and, in general, supervise the
management and investment program of the Portfolio;
2. Furnish office space for the Trust;
<PAGE>
3. Provide the Trust with such accounting data concerning the
investment activities of the Portfolio as shall be required to
prepare and file all periodic financial reports and returns
required to be filed with the Securities and Exchange Commission
and any other regulatory agency, provided that such data may be
provided by the Trust's custodian bank at the expense of the Trust
pursuant to an agreement between the Trust and said bank.
4. Continuously monitor compliance by the Trust as to the Portfolio
in its investment activities with the requirements of the
Investment Company Act and the rules promulgated thereunder
pursuant thereto; and
5. Render to the Trust such periodic and special reports as to the
Portfolio as may be reasonably requested with respect to matters
relating to the duties of the Adviser.
III
To the extent that the Trust or the Adviser is a party to any
sub-advisory agreements with persons other than the Adviser concerning any of
the foregoing, the Adviser shall be responsible for overseeing the performance
of each such sub-adviser.
IV
The Trust will pay an investment advisory fee to the Adviser for
compensation for investment advisory services rendered in connection with the
management of the Portfolio. Such fee shall be equal, on an annual basis, to
0.65% of the average daily value of the net assets of the Portfolio.
The amounts payable to the Adviser shall be determined as of the close
of business each day, and shall, except as set forth below, be based upon the
value of net assets of the Portfolio computed in accordance with the Declaration
of Trust of the Trust; and shall be paid in arrears whenever requested by the
Adviser.
V
2
<PAGE>
It is understood and agreed that the Adviser and/or its affiliated
companies and persons may act and may continue to act as investment adviser to
other clients, accounts, and funds, and that the services to be provided
hereunder are not deemed to be exclusive. In addition, it is understood that the
individuals who participate on behalf of the Adviser in the performance of its
duties under this Agreement will not necessarily devote their full time thereto,
and nothing contained herein shall be deemed to limit or restrict their right to
engage in and devote time and attention to other businesses or to render other
services of whatever kind or nature.
VI
The Adviser agrees that all records which it maintains for the Trust
shall be the property of the Trust and that it will surrender promptly to the
designated officers of the Trust any of such records upon its request. The
Adviser further agrees to preserve for the period prescribed by the rules and
regulations of the Securities and Exchange Commission all such records as are
required to be maintained pursuant to said rules. The Adviser agrees that it
will maintain all records and accounts regarding the investment activities of
the Portfolio in a confidential manner. All such accounts or records shall be
made available within five (5) business days of request to the accountants or
auditors of the Trust during regular business hours at the Adviser's offices
upon reasonable prior written notice. In addition, the Adviser will provide any
materials reasonably related to the investment advisory services provided
hereunder as may be reasonably requested in writing by the designated officers
of the Trust or as may be required by any governmental agency having
jurisdiction.
VII
The Adviser shall give to the Trust the benefit of its best judgment,
efforts and facilities in rendering services hereunder.
The Adviser shall at all times be guided by and be subject to the
Trust's investment policies, the provisions
3
<PAGE>
of its Declaration of Trust and By-Laws as each shall from time to time be
amended, and by the decision and determination of the Trustees.
This Agreement shall be performed in accordance with the requirements
of the Investment Company Act of 1940 (the "1940 Act"), the Investment Advisers
Act of 1940, the Securities Act of 1933, and the Securities Exchange Act of
1934, to the extent that the subject matter of this Agreement is within the
purview of such Acts. Insofar as applicable to the Adviser as an investment
adviser and affiliated person of the Trust, the Adviser shall comply with the
provisions of the 1940 Act, the Investment Advisers Act of 1940, and the
respective Rules and Regulations of the Securities and Exchange Commission
thereunder.
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the Adviser
(and its officers, directors, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this Agreement) the Adviser shall not be subject to liability to the Trust or to
any Shareholder of the Trust for any act or omission in the course of, or
connect with, rendering services-hereunder, including without limitation, any
error of judgment or mistake of law or for any loss suffered by any of them in
connection with the matters to which Agreement relates, except to the extent
specified in Section 36(b) of the 1940 Act concerning loss resulting from a
breach of fiduciary duty with respect to the receipt of compensation for
services.
VIII
The Adviser understands that the obligations of this Agreement are not
binding upon any shareholder of the Trust personally, but bind only the Trust's
property; the Adviser represents that it has notice of the provisions of the
Trust's Declaration of Trust disclaiming shareholder liability for acts or
obligations of the Trust.
IX
4
<PAGE>
This Agreement, unless sooner terminated, shall go into effect on the
date on which it is approved by a vote of the holders of a majority (as defined
in the 1940 Act) of the outstanding voting securities of the Portfolio and shall
continue for two years and thereafter from year to year so long as such
continuance is specifically approved at least annually (a) by the Trustees of
the Trust, and (b) by the vote of a majority of those Trustees of the Trust who
are not parties to this Agreement or interested persons (as defined in the 1940
Act) of any such party, cast in person at a meeting called for the purpose of
voting on such approval, provided, this Agreement may be terminated by the Trust
at any time, without the payment of any penalty, by vote of a majority of the
Trustees of the Trust, or by a vote of the holders of a majority (as defined in
the 1940 Act) of the outstanding voting securities of the Trust on sixty (60)
days written notice to the Adviser, or by the Adviser at any time, without
payment of any penalty, on sixty (60) days written notice to the Trust. This
Agreement shall terminate automatically upon its assignment (as defined in the
1940 Act).
This Agreement may be amended only in writing by the parties hereto.
Any amendment to this Agreement requires approval, prior to the effectiveness of
such amendment, (a) by vote of a majority of those Trustees of the Trust who are
not parties to this agreement or interested persons of any such party, case in
person called for the purpose of voting on such amendment, and (b) by vote of
the holders of a majority (as defined in the 1940 Act) of the outstanding voting
securities of the Portfolio.
IN WITNESS WHEREOF the parties hereto have caused this instrument to be
signed on their behalf by their respective officers thereunto duly authorized.
BANKERS NATIONAL SERIES TRUST
By: /s/ Kenneth F. Judkowitz
--------------------------------
BANKERS INVESTMENT ADVISER INC.
5
<PAGE>
By: /s/ Richard E. Coleman
--------------------------------
October 9, 1986
6
<PAGE>
INVESTMENT ADVISORY AGREEMENT
-----------------------------
BETWEEN BANKERS NATIONAL SERIES TRUST
AND
BANKERS INVESTMENT ADVISER INC.
It is hereby agreed by and between BANKERS NATIONAL SERIES TRUST (the
Trusts) and BANKERS INVESTMENT ADVISER INC. (the "Adviser) as follows:
I
The Trust hereby appoints the Adviser to act as the investment adviser
to the Trust in relation to its class of shares entitled the BNL Government
Securities Portfolio (the "Portfolio") and to manage the investment and
reinvestment of the assets of the Portfolio and to provide certain
administrative services to the Trust in connection with the Portfolio, subject
at all times to the direction and control of the Trustees of the Trust. The
Adviser accepts such appointment subject to the terms and conditions as
hereunder provided.
II
The Adviser agrees to provide continuous professional investment
management of the investments of the Portfolio. The Adviser shall provide the
Trust with an investment program complying with the investment objectives,
policies and restrictions of the Portfolio as more fully set forth in the
Registration Statement of the Trust as filed with the Securities and Exchange
Commission and as further amended from time to time. In carrying out the
investment program of the Portfolio, the Adviser shall:
1. Provide investment advice and, in general, supervise the
management and investment program of the Portfolio;
2. Furnish office space for the Trust;
<PAGE>
3. Provide the Trust with such accounting data concerning the
investment activities of the Portfolio as shall be required to
prepare and file all periodic financial reports and returns
required to be filed with the Securities and Exchange Commission
and any other regulatory agency, provided that such data may be
provided by the Trust's custodian bank at the expense of the Trust
pursuant to an agreement between the Trust and said bank.
4. Continuously monitor compliance by the Trust as to the Portfolio
in its investment activities with the requirements of the
Investment Company Act and the rules promulgated thereunder
pursuant thereto; and
5. Render to the Trust such periodic and special reports as to the
Portfolio as may be reasonably requested with respect to matters
relating to the duties of the Adviser.
III
To the extent that the Trust or the Adviser is a party to any
sub-advisory agreements with persons other than the Adviser concerning any of
the foregoing, the Adviser shall be responsible for overseeing the performance
of each such sub-adviser.
IV
The Trust will pay an investment advisory fee to the Adviser for
compensation for investment advisory services rendered in connection with the
management of the Portfolio. Such fee shall be equal, on an annual basis, to
0.5% of the average daily value of the net assets of the Portfolio.
The amounts payable to the Adviser shall be determined as of the close
of business each day, and shall, except as set forth below, be based upon the
value of net assets of the Portfolio computed in accordance with the Declaration
of Trust of the Trust; and shall be paid in arrears whenever requested by the
Adviser.
2
<PAGE>
V
It is understood and agreed that the Adviser and/or its affiliated
companies and persons may act and may continue to act as investment adviser to
other clients, accounts, and funds, and that the services to be provided
hereunder are not deemed to be exclusive. In addition, it is understood that the
individuals who participate on behalf of the Adviser in the performance of its
duties under this Agreement will not necessarily devote their full time thereto,
and nothing contained herein shall be deemed to limit or restrict their right to
engage in and devote time and attention to other businesses or to render other
services of whatever kind or nature.
VI
The Adviser agrees that all records which it maintains for the Trust
shall be the property of the Trust and that it will surrender promptly to the
designated officers of the Trust any of such records upon its request. The
Adviser further agrees to preserve for the period prescribed by the rules and
regulations of the Securities and Exchange Commission all such records as are
required to be maintained pursuant to said rules. The Adviser agrees that it
will maintain all records and accounts regarding the investment activities of
the Portfolio in a confidential manner. All such accounts or records shall be
made available within five (5) business days of request to the accountants or
auditors of the Trust during regular business hours at the Adviser's offices
upon reasonable prior written notice. In addition, the Adviser will provide any
materials reasonably related to the investment advisory services provided
hereunder as may be reasonably requested in writing by the designated officers
of the Trust or as may be required by any governmental agency having
jurisdiction.
VII
The Adviser shall give to the Trust the benefit of its best judgment,
efforts and facilities in rendering services hereunder.
3
<PAGE>
The Adviser shall at all times be guided by and be subject to the
Trust's investment policies, the provisions of its Declaration of Trust and
By-Laws as each shall from time to time be amended, and by the decision and
determination of the Trustees.
This Agreement shall be performed in accordance with the requirements
of the Investment Company Act of 1940 (the "1940 Act"), the Investment Advisers
Act of 1940, the Securities Act of 1933, and the Securities Exchange Act of
1934, to the extent that the subject matter of this Agreement is within the
purview of such Acts. Insofar as applicable to the Adviser as an investment
adviser and affiliated person of the Trust, the Adviser shall comply with the
provisions of the 1940 Act, the Investment Advisers Act of 1940, and the
respective Rules and Regulations of the Securities and Exchange Commission
thereunder.
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the Adviser
(and its officers, directors, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this Agreement) the Adviser shall not be subject to liability to the Trust or to
any Shareholder of the Trust for any act or omission in the course of, or
connect with, rendering services hereunder, including without limitation, any
error of judgment or mistake of law or for any loss suffered by any of them in
connection with the matters to which Agreement relates, except to the extent
specified in Section 36(b) of the 1940 Act concerning loss resulting from a
breach of fiduciary duty with respect to the receipt of compensation for
services.
VIII
The Adviser understands that the obligations of this Agreement are not
binding upon any shareholder of the Trust personally, but bind only the Trust's
property; the Adviser represents that it has notice of the provisions of the
Trust's Declaration of Trust disclaiming shareholder liability for acts or
obligations of the Trust.
4
<PAGE>
IX
This Agreement, unless sooner terminated, shall go into effect on the
date on which it is approved by a vote of the holders of a majority (as defined
in the 1940 Act) of the outstanding voting securities of the Portfolio and shall
continue for two years and thereafter from year to year so long as such
continuance is specifically approved at least annually (a) by the Trustees of
the Trust, and (b) by the vote of a majority of those Trustees of the Trust who
are not parties to this Agreement or interested persons (as defined in the 1940
Act) of any such party, cast in person at a meeting called for the purpose of
voting on such approval, provided, this Agreement may be terminated by the Trust
at any time, without the payment of any penalty, by vote of a majority of the
Trustees of the Trust, or by a vote of the holders of a majority (as defined in
the 1940 Act) of the outstanding voting securities of the Trust on sixty (60)
days written notice to the Adviser, or by the Adviser at any time, without
payment of any penalty, on sixty (60) days written notice to the Trust. This
Agreement shall terminate automatically upon its assignment (as defined in the
1940 Act).
This Agreement may be amended only in writing by the parties hereto.
Any amendment to this Agreement requires approval, prior to the effectiveness of
such amendment, (a) by vote of a majority of those Trustees of the Trust who are
not parties to this agreement or interested persons of any such party, case in
person called for the purpose of voting on such amendment, and (b) by vote of
the holders of a majority (as defined in the 1940 Act) of the outstanding voting
securities of the Portfolio.
5
<PAGE>
IN WITNESS WHEREOF the parties hereto have caused this instrument to be
signed on their behalf by their respective officers thereunto duly authorized.
BANKERS NATIONAL SERIES TRUST
By: /s/ KENNETH F. JUDKOWITZ
---------------------------------
BANKERS INVESTMENT ADVISER INC.
October 9, 1986 By: /s/ RICHARD E. COLEMAN
--------------------------------
6
<PAGE>
INVESTMENT ADVISORY AGREEMENT
-----------------------------
BETWEEN BANKERS NATIONAL SERIES TRUST
AND
BANKERS INVESTMENT ADVISER INC.
It is hereby agreed by and between BANKERS NATIONAL SERIES TRUST (the
"Trusts") and BANKERS INVESTMENT ADVISER INC. (the "Adviser") as follows:
I
The Trust hereby appoints the Adviser to act as the investment adviser
to the Trust in relation to its class of shares entitled the BNL Money Market
Portfolio (the "Portfolio") and to manage the investment and reinvestment of the
assets of the Portfolio and to provide certain administrative services to the
Trust in connection with the Portfolio, subject at all times to the direction
and control of the Trustees of the Trust. The Adviser accepts such appointment
subject to the terms and conditions as hereunder provided.
II
The Adviser agrees to provide continuous professional investment
management of the investments of the Portfolio. The Adviser shall provide the
Trust with an investment program complying with the investment objectives,
policies and restrictions of the Portfolio as more fully set forth in the
Registration Statement of the Trust as filed with the Securities and Exchange
Commission and as further amended from time to time. In carrying out the
investment program of the Portfolio, the Adviser shall:
1. Provide investment advice and, in general, supervise the
management and investment program of the Portfolio;
2. Furnish office space for the Trust;
<PAGE>
3. Provide the Trust with such accounting data concerning the
investment activities of the Portfolio as shall be required to
prepare and file all periodic financial reports and returns
required to be filed with the Securities and Exchange Commission
and any other regulatory agency, provided that such data may be
provided by the Trust's custodian bank at the expense of the Trust
pursuant to an agreement between the Trust and said bank.
4. Continuously monitor compliance by the Trust as to the Portfolio
in its investment activities with the requirements of the
Investment Company Act and the rules promulgated thereunder
pursuant thereto; and
5. Render to the Trust such periodic and special reports as to the
Portfolio as may be reasonably requested with respect to matters
relating to the duties of the Adviser.
III
To the extent that the Trust or the Adviser is a party to any
sub-advisory agreements with persons other than the Adviser concerning any of
the foregoing, the Adviser shall be responsible for overseeing the performance
of each such sub-adviser.
IV
The Trust will pay an investment advisory fee to the Adviser for
compensation for investment advisory services rendered in connection with the
management of the Portfolio. Such fee shall be equal, on an annual basis, to
0.5% of the average daily value of the net assets of the Portfolio.
The amounts payable to the Adviser shall be determined as of the close
of business each day, and shall, except as set forth below, be based upon the
value of net assets of the Portfolio computed in accordance with the Declaration
of Trust of the Trust; and shall be paid in arrears whenever requested by the
Adviser.
2
<PAGE>
V
It is understood and agreed that the Adviser and/or its affiliated
companies and persons may act and may continue to act as investment adviser to
other clients, accounts, and funds, and that the services to be provided
hereunder are not deemed to be exclusive. In addition, it is understood that the
individuals who participate on behalf of the Adviser in the performance of its
duties under this Agreement will not necessarily devote their full time thereto,
and nothing contained herein shall be deemed to limit or restrict their right to
engage in and devote time and attention to other businesses or to render other
services of whatever kind or nature.
VI
The Adviser agrees that all records which it maintains for the Trust
shall be the property of the Trust and that it will surrender promptly to the
designated officers of the Trust any of such records upon its request. The
Adviser further agrees to preserve for the period prescribed by the rules and
regulations of the Securities and Exchange Commission all such records as are
required to be maintained pursuant to said rules. The Adviser agrees that it
will maintain all records and accounts regarding the investment activities of
the Portfolio in a confidential manner. All such accounts or records shall be
made available within five (5) business days of request to the accountants or
auditors of the Trust during regular business hours at the Adviser's offices
upon reasonable prior written notice. In addition, the Adviser will provide any
materials reasonably related to the investment advisory services provided
hereunder as may be reasonably requested in writing by the designated officers
of the Trust or as may be required by any governmental agency having
jurisdiction.
VII
The Adviser shall give to the Trust the benefit of its best judgment,
efforts and facilities in rendering services hereunder.
3
<PAGE>
The Adviser shall at all times be guided by and be subject to the
Trust's investment policies, the provisions of its Declaration of Trust and
By-Laws as each shall from time to time be amended, and by the decision and
determination of the Trustees.
This Agreement shall be performed in accordance with the requirements
of the Investment Company Act of 1940 (the "1940 Act"), the Investment Advisers
Act of 1940, the Securities Act of 1933, and the Securities Exchange Act of
1934, to the extent that the subject matter of this Agreement is within the
purview of such Acts. Insofar as applicable to the Adviser as an investment
adviser and affiliated person of the Trust, the Adviser shall comply with the
provisions of the 1940 Act, the Investment Advisers Act of 1940, and the
respective Rules and Regulations of the Securities and Exchange Commission
thereunder.
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the Adviser
(and its officers, directors, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this Agreement) the Adviser shall not be subject to liability to the Trust or to
any Shareholder of the Trust for any act or omission in the course of, or
connect with, rendering services hereunder, including without limitation, any
error of judgment or mistake of law or for any loss suffered by any of them in
connection with the matters to which Agreement relates, except to the extent
specified in Section 36(b) of the 1940 Act concerning loss resulting from a
breach of fiduciary duty with respect to the receipt of compensation for
services.
VIII
The Adviser understands that the obligations of this Agreement are not
binding upon any shareholder of the Trust personally, but bind only the Trust's
property; the Adviser represents that it has notice of the provisions of the
Trust's Declaration of Trust disclaiming shareholder liability for acts or
obligations of the Trust.
4
<PAGE>
IX
This Agreement, unless sooner terminated, shall go into effect on the
date on which it is approved by a vote of the holders of a majority (as defined
in the 1940 Act) of the outstanding voting securities of the Portfolio and shall
continue for two years and thereafter from year to year so long as such
continuance is specifically approved at least annually (a) by the Trustees of
the Trust, and (b) by the vote of a majority of those Trustees of the Trust who
are not parties to this Agreement or interested persons (as defined in the 1940
Act) of any such party, cast in person at a meeting called for the purpose of
voting on such approval, provided, this Agreement may be terminated by the Trust
at any time, without the payment of any penalty, by vote of a majority of the
Trustees of the Trust, or by a vote of the holders of a majority (as defined in
the 1940 Act) of the outstanding voting securities of the Trust on sixty (60)
days written notice to the Adviser, or by the Adviser at any time, without
payment of any penalty, on sixty (60) days written notice to the Trust. This
Agreement shall terminate automatically upon its assignment (as defined in the
1940 Act).
This Agreement may be amended only in writing by the parties hereto.
Any amendment to this Agreement requires approval, prior to the effectiveness of
such amendment, (a) by vote of a majority of those Trustees of the Trust who are
not parties to this agreement or interested persons of any such party, case in
person called for the purpose of voting on such amendment, and (b) by vote of
the holders of a majority (as defined in the 1940 Act) of the outstanding voting
securities of the Portfolio.
5
<PAGE>
IN WITNESS WHEREOF the parties hereto have caused this instrument to be
signed on their behalf by their respective officers thereunto duly authorized.
BANKERS NATIONAL SERIES TRUST
By: /s/ KENNETH F. JUDKOWITZ
----------------------------
BANKERS INVESTMENT ADVISER INC.
By: /s/ RICHARD E. COLEMAN
----------------------------
October 9, 1986
6
CUSTODIAN ACCOUNT AGREEMENT
_______________________,19___
Bankers Trust Company
New York, New York
Gentlemen:
We, the undersigned, hereby request that you act as our Custodian to
hold and dispose of all securities or similar property and cash deposited with,
delivered to or received by you as such Custodian. For the purposes of this
agreement, any securities now held by you for us under a prior custody agreement
with you shall be deemed to have been deposited hereunder. Custody by you of
securities shall be deemed to have begun immediately upon receipt by you of any
such securities and shall continue until you shall have surrendered such
securities to, or in accordance with, the instructions or directions of the
undersigned, subject to the following terms and conditions:
1. (a) You will hold the securities in one or more Custodian
accounts (whether one or more, the "Custodian Account") which you will open and
maintain in such name(s) as may be agreed upon from time to time with us. You
shall keep the securities received by you hereunder separate and distinct from
securities documents and property owned by yourself or others to the extent that
each and every item received by it hereunder shall at all times be identified
and identifiable as the property solely of the undersigned.
(b) The term "hold" shall include your authority to deposit any
part, or all of the aforesaid property, with the Depository Trust Company, the
Participants' Trust Company, the Federal Reserve Book Entry System, or any other
centralized securities depository system, whether presently or hereafter
organized, in which you participate (hereinafter called "CSDS"). In holding any
such deposits, you shall at all times keep complete and accurate records to the
end that all securities of ours may be identifiable (i) by the issuer or obligor
of each security, (ii) by the issue or distinguishing characteristics (such as
due date and
<PAGE>
percentage rate of return based on face value) of such security, and (iii) by
the securities depository or safekeeping facility with which each security is
placed. Placement of our securities by you into a CSDS shall neither augment nor
diminish your responsibilities and rights under any paragraph of this Agreement.
(c) Subject to the aforesaid provision, securities are to be
held in our Custodian Account with you in coupon bearer form; with respect to
securities which are received in registered form, you are authorized to
reregister such Securities in the name of your nominee, or the nominee of the
CSDS, unless alternate registration instructions are furnished.
(d) In consideration of your registration of any stocks,
bonds, securities and other property in the name of your nominee, we agree to
pay on demand to you or your nominee the amount of any loss or liability for
stockholders' assessments, or otherwise, claimed or asserted against your
nominee by reason of such registration.
(e) Should any securities which are forwarded to you by us and
which are subsequently deposited with any CSDS not be deemed acceptable for
deposit by the CSDS for any reason, we agree to immediately furnish you with
like securities in acceptable form or, in the alternative, you are authorized to
charge our account for the cost of replacing such securities and for any other
fees or charges an may be payable to such CSDS as a result of such unacceptable
deposit.
(f) You are authorized to accept, act upon and rely upon all
signed, written instructions given by one or more of our officers, employees or
agents as are designated in any certificate of resolutions or other acceptable
document delivered to you by us and amendments thereto from time to time. In
addition, you may rely on instructions received by telephone, telex, TWX,
facsimile transmission, bank wire or other teleprocess acceptable to you which
you believe in good faith to have been given by such authorized person or which
are transmitted with proper testing or authentication pursuant to terms and
conditions which you may specify. You may also rely on instructions transmitted
2
<PAGE>
electronically through your POL*ARIS communications system, or any similar
electronic instruction system acceptable to you. You shall incur no liability to
us or otherwise as a result of any act by you in accordance with instructions on
which you are authorized to rely pursuant to the provisions of this paragraph.
(g) In complying with instructions for delivery of eligible
transactions, you will make deliveries through (i) the Federal Reserve System,
pursuant to Subpart O of Treasury Department Circular #300 (31 Code of Federal
Regulations Part 306), and operating circulars of the Federal Reserve Bank of
New York, both as amended from time to time, or (ii) the facilities of any CSDS
pursuant to Section 8-320 of the New York Uniform Commercial Code and the rules
and procedures of any such CSDS and any subsequent amendments thereto.
(h) We acknowledge familiarity with the current securities
industry practice of delivering physical securities against later payment on
delivery date. Notwithstanding our instructions to deliver securities against
payment, you are authorized to make delivery against a temporary receipt
(sometimes called a "window ticket") in lieu of payment. You agree to use your
best efforts to obtain payment therefor during the same business day, but we
confirm our sole assumption of all risks of payment for such deliveries. You may
accept checks, whether certified or not, in payment for securities delivered on
our instruction, and we assume sole responsibility for the risks of
collectability of such checks.
2. Unless instructed otherwise in writing, the proceeds of sales,
redemptions, collections, and other receipts, and dividend and interest income,
will be credited to our account in accordance with the schedule specified in
your Standards Manual. As used herein, the term "account" shall be deemed to
mean any one or more of our deposit accounts with you maintained at the time of
the transaction referred to.
3. (a) In no event shall you be responsible to ascertain or to take any
action concerning any maturities, puts, calls, conversions, exchanges,
reorganizations,
3
<PAGE>
offers, tenders or similar matters relating to our securities held in the
Custodian Account, other than to transmit to us all information relating to any
such action received by you from any offers or otherwise. We agree that our
instructions to you with respect to tender offers must be in writing (if oral,
then to be confirmed next day in writing) and delivered to you within sufficient
time for you to act thereon if any action by you is required. As used herein,
"sufficient time" shall mean at any time up to the last permissible date for
action by you established by your written notice to us, and you shall have no
liability to us for your failure to act upon our instructions received by you
any time after such date.
(b) All proxies and material pertaining thereto received by you
in connection with stocks, bonds, securities and other property held in the
account, whether physically by you or on deposit with the CSDS, are to be
forwarded to us.
(c) Should any securities held in the CSDS be called for a
partial redemption by the issuer of such securities, you are authorized to
accept allocations as determined pursuant to the program therefor in effect at
such CSDS or, in the absence of any such program, in your sole discretion to
allot the called portion to the respective holders in any manner deemed to be
fair and equitable in your judgment.
(d) Recapitalizations and stock distributions will be credited
to the account within five (5) business days after the Stock Exchange due bill
redeemable date (ten [10] business days after payable date) in order to comply
with the normal course of settling our position at the CSDS and sufficient time
to allocate theme shares to the Custodian Account. Stock dividends will be
credited on payable date.
(e) You are authorized to exchange temporary for definitive
certificates, and old certificates for new or overstamped certificates
evidencing a change therein.
4. (a) With respect to foreign securities or securities for which
adequate financial information is not readily available, your responsibility is
expressly limited to
4
<PAGE>
safekeeping. While it is expected that you will collect dividends, interest, and
other income, and notify us of any call for redemption, offer of exchange, right
of subscription, reorganization, or other proceeding affecting such securities,
it is understood that you shall be responsible for any internal failure or delay
in crediting collections or giving notice, but shall not be responsible for any
failures or delays in collection or notice incurred outside of the bank.
(b) Collections of monies in foreign currency, to the extent
possible, are to be converted into U.S. dollars at customary rates. All risk and
expense incident to such foreign collections and conversions is for our account,
and you shall have no responsibility for fluctuations in exchange rates
affecting such collections or conversions.
5. We acknowledge our responsibility as a principal for all of our
obligations to you arising under or in connection with this Agreement,
notwithstanding that we may be acting on behalf of other persons, and we warrant
our authority to deposit in the Custodian Account and any accounts of ours any
securities and funds which you or your agents receive therefor, and to give
instructions relative thereto. We further agree that you shall not be subject
to, nor shall your rights and obligations with respect to this Agreement and the
Custodian Account be affected by, any agreement between us and any other person.
You assume no liability to any customer of ours or to any beneficiary for which
we may be acting as agent, bailee or fiduciary.
6. You shall give the securities that come into your possession under
this Agreement the same physical care and safeguards as are afforded similar
property owned by you; provided, however, your responsibility hereunder is
limited to losses occasioned directly by the negligence or willful misconduct of
your employees, or by robbery, burglary or theft (while the securities are in
your physical possession), to the extent of the market value of the securities
at the date of the discovery of such loss. With respect to any securities which
you deliver for us to a third party, and with respect to such delivery, you
shall be deemed no more than an "intermediary" as defined in Section 8-306(3) of
the New York Uniform Commercial Code. You may,
5
<PAGE>
at your option, make arrangements for insuring yourselves against any loss from
any cause, but you shall not be under any obligation to insure for our benefit.
We agree to defend and indemnify you and to hold you harmless from and
against any and all liabilities, losses, damages, claims, costs (including fees
and disbursements of counsel selected by you), and every other expense of any
nature (collectively, "liabilities") incurred by you arising out of or resulting
from your performing your obligations hereunder, except to the extent that such
liabilities shall be due to your negligence or willful misconduct. In no event
shall you be liable for any indirect, special or consequential damages.
7. You may charge the Cash Account tied to the Custodian Account for
all costs incurred by you in connection with your receipt of securities for the
Custodian Account. You are not obligated to effect any transaction or make any
payment in connection therewith unless there are sufficient available funds on
deposit in our account, or funds have otherwise been made available to you to
your satisfaction. The amount by which payments, made by you on our behalf with
respect to property in, or to be received for, the Custodian Account, or with
respect to other transactions pursuant to this Agreement, exceed available funds
and result in an account overdraft shall be deemed a loan from you to us in the
amount of such overdraft, payable on demand and bearing interest at the rate
customarily charged by you on similar loans. We confirm that all such loans
shall be based on your sole determination to make the underlying advance in each
came.
8. You agree to provide us with regular monthly reports of transactions
and holdings in the Custodian Account, or at such more frequent intervals as you
and we may mutually agree on. We shall have the right to physically examine the
securities held in your vault at reasonable times, provided that a
representative of yours shall accompany us upon such examination. We may meet
with the auditors of a Securities Depository to review and examine the
safeguards and controls which protect the assets held by the Securities
Depository in a fungible mass for all its participants. You will assist us in
obtaining appropriate audit comfort letters which are
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made available by a CSDS attesting to its safeguards and controls. In addition,
we understand that we have the option to elect to participate in your POL*ARIS
Service (an on-line system) which provides us, on a daily basis, with the
ability to view on-line or to print on hard copy (i) all transactions involving
the delivery in and out of securities on a free or payment basis; (ii) payments
of principal and interest or dividends; (iii) pending transactions and fails;
and (iv) schedules of Custodian Account holdings plus the market values thereof.
You have advised us that it is your expectation that the POL*ARIS Service is
constantly being tested and explored for the addition of new and valuable
services in the near future.
You have furnished us with a separate fee schedule applicable to the
POL*ARIS Service and, in the event we subscribe thereto, we shall be fully
responsible for the security of our connecting terminal, access thereto and the
proper and authorized use thereof, and our initiation and application of
continuing effective safeguards. In this connection, except for any instance
involving your own negligence or misconduct, we agree to defend, indemnify you
and to hold you harmless from and against any and all liabilities, losses,
damages, costs, including attorneys' fees and every other expense of every
nature incurred by you as a result of any improper or unauthorized use of such
terminal by us or by others on our premises.
To the extent that the POL*ARIS Service shall include market values of
our Custodian holdings, we acknowledge receipt from you of your advices that you
now obtain and will in the future obtain such information from outside sources
(presently Mellon Invest Data Corporation and Telstat) which you deem to be
reliable, and confirm that you do not verify nor represent or warrant either the
accuracy or the completeness of any such information furnished or transacted by
or through the POL*ARIS Service.
9. (a) You shall be under no duty to take any action with respect to
any property held in any Custodian Account except to the extent of any properly
issued instructions by us.
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(b) In the event that you agree, at our request, to appear on
our behalf and prosecute or defend any legal or equitable proceeding, we agree
to indemnify you for any and all costs and expenses.
(c) You are authorized and empowered in our name and on our
behalf to execute any certificates of ownership or other reports, declarations
or affidavits which you are or may hereafter be required to execute and furnish
under any regulation of the Internal Revenue Service, or other authority of the
United States, so far as the same are required in connection with any property
which is now or may hereafter be held in the Custodian Account, claiming no
exemptions on our behalf. We agree to notify you immediately in writing of any
material change in our status which may impact on any such certificates, reports
or other required documents or on the contents thereof.
l0. We agree to pay you as compensation for your services hereunder
your applicable fees in effect from time to time of which you will provide us
with notice in writing.
11. By your acceptance of this Agreement we agree to, and do hereby,
indemnify you and hold you harmless from any and all loss, liability (excluding
any liability occasioned by the negligence or willful misconduct of your
employees, or by robbery, burglary or theft of any securities while in your
physical possession), claims, damages or expense (including, without limitation,
charges and internal charges, fees and disbursements of counsel) arising from
your performance of your services as Custodian hereunder, including arising out
of a settlement of any dispute, prior to your being named as a defendant in any
litigation or proceeding and whether or not you are a party to such litigation
or proceeding.
12. In the event of the termination of this Agreement at our request,
you shall have the right to transfer to us all stocks, bonds, securities and
other property registered in the name of your nominee, and you shall charge all
taxes and other expenses incident to such transfer to our account. If
termination of this Agreement is made at your request, the above described
charges shall be at your expense.
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13. This Agreement contains the whole of the understanding between us,
and no provision hereof shall be modified or altered except in writing signed by
both of us.
14. This Agreement shall be governed by the laws of the State of New
York, and shall be binding upon us and upon our successors and assigns and shall
inure to your benefit and your successors and assigns, and shall be deemed
continuing until terminated by either of us upon at least sixty (60) days prior
written notice to the other. We shall have a period of thirty (30) days from the
date of receipt of the Agreement to make any objection and claim, and failure to
do so within the thirty day period shall be deemed by the parties hereto to
constitute accord and satisfaction.
15. The federal and state courts within the State of New York shall
have sole and exclusive jurisdiction over any claim or dispute which may arise
hereunder or which either of us may allege or assert against the other and/or
any transactions contemplated to be covered hereunder.
16. If any provision of this Agreement is deemed to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other provisions of this Agreement.
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To indicate your acceptance of the foregoing, we have executed two (2)
copies of this Agreement and enclose same with the request that you sign them in
the space provided, whereupon it shall become our Agreement, binding upon each
of us as of the date first above written. Please return one signed copy to us.
Sincerely yours,
-----------------------------------------------
(Account Title)
By:
-----------------------------------------------
(Authorized Signature)
-----------------------------------------------
(Title)
11815 North Pennsylvania St., Carmel. IN 46032
-----------------------------------------------
(Principal Office Address)
AGREED TO AND ACCEPTED:
BANKERS TRUST COMPANY
By:
--------------------------
(Authorized Signature)
--------------------------
(Title)
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INFORMATION DISCLOSURE NOTICE
AND INSTRUCTION
As authorized by the 1985 Shareholders Communication. Act, the
Securities and Exchange Commission issued rules governing the distribution of
proxy materials to and disclosure of information about shareholders whose
securities are registered in a bank nominee name. Under these rules, beneficial
owners of securities whose accounts were opened: (i) after December 28, 1986,
will be deemed to have consented to disclosure of their positions to issuers
unless the beneficial owner has affirmatively objected to such disclosure; and
(ii) on or before December 29, 1986, must affirmatively consent thereto before
such disclosure must be made. According to these rules, the issuing company
would be permitted to use your name for "corporate communication" purposes only.
NO YES
The undersigned elects not to The undersigned elects to have
have (his) (her) (its) name, (his) (her) (its) name,
address, and securities address, and securities
positions disclosed to any of positions disclosed to any of
the companies in which the the companies in which the
undersigned owns securities undersigned owns securities
that are registered in that are registered in
"nominee" or "street" name. "nominee" or "street" name.
- ------------------------------ ------------------------------
ACCOUNT NAME DATE
