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. 16 /X/
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and/or
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 / /
Amendment No. 17 /X/
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PC&J PERFORMANCE FUND - File Nos. 2-87490 and 811-3906
- ------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
300 Old Post Office, 120 West Third Street, Dayton, Ohio 45402
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(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including Area Code: 937/223-0600
----------------
James M. Johnson, 300 Old Post Office, 120 West Third Street,Dayton, Ohio 45402
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(Name and Address of Agent for Service)
Copy to: Donald S. Mendelsohn, Brown, Cummins & Brown Co., L.P.A.,
3500 Carew Tower, Cincinnati, Ohio 45202
Approximate Date of Proposed Public Offering: March 13, 1998
----------------
It is proposed that this filing will become effective:
/ / immediately upon filing pursuant to paragraph (b)
/X/ on March 12, 1998 pursuant to paragraph (b)
/ / 60 days after filing pursuant to paragraph (a)(1)
/ / on (date) pursuant to paragraph (a)(1)
/ / 75 days after filing pursuant to paragraph (a)(2)
/ / on (date) pursuant to paragraph (a)(2) of Rule 485
If appropriate, check the following box:
/ / this post-effective amendment designates a new effective date for
a previously filed post-effective amendment.
Title of Securities Being Registered
--------------------------
Omit from the facing sheet reference to the other Act if the
Registration Statement or amendment is filed under only one of the
Acts. Include the "Approximate Date of Proposed Public Offering" and
"Title of Securities Being Registered" only where securities are being
registered under the Securities Act of 1933.
<PAGE>
PC&J PERFORMANCE FUND
Cross Reference Sheet Required By
Rule 481(a) under the Securities Act of 1933
PART A OF FORM N-1A ITEM NO. CAPTION(S) IN PROSPECTUS
- ----------------------------- ------------------------------------------
1 ........................... Cover Page
2 ........................... Fee Table
3 ........................... Financial Highlights
4 ........................... Organization And Operation Of The Fund
5A........................... Organization and Operation of The Fund
5 ........................... Organization And Operation Of The Fund
6 ........................... Description Of Shares And Taxes
7 ........................... Determination Of Share Price, How To Invest
In The Fund, Distribution Expense Plan
8 ........................... How To Redeem Your Investment
9 ........................... None
CAPTION (S) N STATEMENT
PART B OF FORM N-1A ITEM NO. OF ADDITIONAL INFORMATION
- ----------------------------- ------------------------------------------
10 .......................... Cover Page
11 .......................... Table Of Contents
12 .......................... None
13 .......................... Investment Objective And Policies
14 .......................... Organization And Operation Of The Fund
15 .......................... Organization And Operation Of The Fund
16 .......................... Organization And Operation Of The Fund,
Distribution Expense Plan
17 .......................... Portfolio Transactions And Brokerage
Allocation
18 .......................... Description Of Shares And Taxes
19 .......................... How To Invest In The Fund, Determination
Of Share Price
20 .......................... Description Of Shares And Taxes
21 .......................... Not Applicable
22 .......................... None
23 .......................... Financial Statements
<PAGE>
PROSPECTUS
March 13, 1998
PC&J PERFORMANCE FUND
A No-Load Fund
300 Old Post Office
120 West Third Street
Dayton, Ohio 45402
Investment Adviser: Parker Carlson & Johnson, Inc.
INVESTMENT OBJECTIVE
The investment objective of PC&J Performance Fund (the "Fund") is
long-term growth of capital through investment in common stocks.
Current income is of secondary importance.
IMPORTANT FEATURES
Investment for Capital Growth
No Sales Commissions or Withdrawal Charges
Professional Management
Diversification
This Prospectus sets forth concisely the information about the
Fund that you should know before investing. Please retain this
Prospectus for future reference. A Statement of Additional
Information dated March 13, 1998 has been filed with the
Securities and Exchange Commission and is incorporated by
reference in its entirety into this Prospectus. A copy of the
Statement of Additional Information can be obtained at no charge
by calling the Fund at 937-223-0600.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<PAGE>
TABLE OF CONTENTS
PAGE
FEE TABLE ..................................................... 3
FINANCIAL HIGHLIGHTS .......................................... 4
INVESTMENT OBJECTIVE AND POLICIES ............................. 5
ORGANIZATION AND OPERATION OF THE FUND ........................ 5
DISTRIBUTION EXPENSE PLAN ..................................... 7
DESCRIPTION OF SHARES AND TAXES ............................... 7
HOW TO INVEST IN THE FUND .................................... 8
HOW TO REDEEM YOUR INVESTMENT ................................. 9
DETERMINATION OF SHARE PRICE .................................. 10
AUDITORS ...................................................... 10
NEW ACCOUNT APPLICATION ....................................... 11
<PAGE>
FEE TABLE
SHAREHOLDER TRANSACTION EXPENSES
<TABLE>
<S> <C>
Maximum Sales Load Imposed on Purchases
(as a percentage of offering price) 0%
Maximum Sales Load Imposed on Reinvested
Dividends (as a percentage of offering
price) 0%
Deferred Sales Load (as a percentage
of original purchase price or redemption
proceeds, as applicable) 0%
Redemption Fees (as a percentage of
amount redeemed, if applicable) 0%
Exchange Fee 0%
</TABLE>
ANNUAL FUND OPERATING EXPENSES
(as a percentage of average net assets)
<TABLE>
<S> <C>
Management Fees 1.00%
12b-1 Fees 0%
Other Expenses 0.50%
-------
Total Fund Operating Expenses 1.50%
=======
</TABLE>
<TABLE>
<CAPTION>
EXAMPLE 1 YEAR 3 YEARS 5 YEARS 10 YEARS
<S> <C> <C> <C> <C>
You would pay the
following expenses on
a $1,000 investment,
assuming (1) 5% annual
return and (2) redemption
at the end of each time
period: $15 $47 $81 $178
</TABLE>
The purpose of the above table is to assist a potential purchaser
of the Fund's shares in understanding the various costs and
expenses that an investor in the Fund will bear directly or
indirectly. See "ORGANIZATION AND OPERATION OF THE FUND" and
"DISTRIBUTION EXPENSE PLAN" for a more complete discussion of the
annual operating expenses of the Fund. The foregoing example
should not be considered a representation of past or future
expenses. Actual expenses may be greater or less than those
shown. Under normal circumstances, such expenses will not exceed
1.5% of the Fund's average net assets.
<PAGE>
FINANCIAL HIGHLIGHTS
The information contained in the table below is for the years
ended December 31, 1997, 1996, 1995, 1994, 1993, 1992, 1991,
1990, 1989 and 1988. Such information has been derived from data
contained in financial statements audited by Deloitte & Touche,
LLP, independent auditors. Such information should be read in
conjunction with the financial statements incorporated by reference
in the Fund's Statement of Additional Information. The Fund's Annual
Report contains additional performance information and will be made
available upon request and without charge.
<PAGE>
PC&J PERFORMANCE FUND
FINANCIAL HIGHLIGHTS
FOR THE YEARS ENDED DECEMBER 31, 1997, 1996, 1995, 1994, 1993, 1992, 1991,
1990, 1989, AND 1988
<TABLE>
<CAPTION>
Selected Data for Each Share December December December December December
of Capital Stock Outstanding 1997 1996 1995 1994 1993
Throughout the Year
<S> <C> <C> <C> <C> <C>
Net asset value-beginning of year $21.11 $19.18 $17.68 $18.13 $17.90
Income from investment operations:
Net investment income (0.03) 0.06 0.03 0.06 0.08
Net realized and unrealized
gain (loss) on securities 7.54 3.73 3.99 0.08 2.47
Total from investment operations 7.51 3.79 4.02 0.14 2.55
Less dividends:
Dividends from net investment (0.00) (0.06) (0.03) (0.06) ( 0.08)
income
Distributions from net
realized capital gains (1.61) (1.80) (2.49) (0.53) (2.24)
Total dividends (1.61) (1.86) (2.52) (0.59) (2.32)
Net asset value - end of year $27.01 $21.11 $19.18 $17.68 $18.13
Total return 35.58% 19.80% 22.74% 0.77% 14.25%
Ratios to average net assets
Expenses 1.50% 1.50% 1.50% 1.50% 1.52%
Net investment income -0.12% 0.30% 0.13% 0.35% 0.45%
Net assets at end of year (000's) $37,453 $28,638 $23,949 19,753 $19,670
Average commissions per share <F1> $0.10 $0.10
Portfolio turnover rate 22.44% 64.31% 76.71% 68.56% 63.28%
<CAPTION>
Selected Data for Each Share December December December December December
of Capital Stock Outstanding 1992 1991 1990 1989 1988
Throughout the Year
<S> <C> <C> <C> <C> <C>
Net asset value-beginning of year $17.42 $14.22 $15.30 $12.35 $11.20
Income from investment operations:
Net investment income 0.10 0.15 0.18 0.17 0.27
Net realized and unrealized
gain (loss) on securities 1.30 4.18 (1.08) 3.95 1.15
Total from investment operations 1.40 4.33 (0.90) 4.12 1.42
Less dividemds:
Dividends from net investment (0.10) (0.15) (0.18) (0.17) (0.27)
income
Distributions from net
realized capital gains (0.82) (0.98) 0.00 (1.00) 0.00
Total dividends (0.92) (1.13) (0.18) (1.17) (0.27)
Net asset value - end of year $17.90 $17.42 $14.22 $15.30 $12.35
Total return 8.04% 30.45% -5.88% 33.36% 12.68%
Ratios to average net assets
Expenses 1.52% 1.52% 1.50% 1.52% 1.60%
Net investment income 0.61% 0.97% 1.19% 1.20% 2.15%
Net assets at end of year (000's) $16,045 $14,040 $8,354 $8,489 $6,740
Average commissions per share <F1>
Portfolio turnover rate 48.26% 41.40% 73.89% 89.85% 62.54%
<FN>
<F1> Represents the dollar amount of commissions paid on portfolio
transactions divided by the total number of shares purchased
and sold for which commissions were charged. Disclosure is
not required prior to 1996.
</FN>
</TABLE>
<PAGE>
INVESTMENT OBJECTIVE AND POLICIES
The investment objective of the Fund is long-term growth of
capital through investment in common stocks. Current income is of
secondary importance. This investment objective may be changed
without the affirmative vote of a majority of the outstanding
voting securities of the Fund. The Fund seeks to achieve this
objective by investing primarily in common stock that the Fund's
Investment Adviser believes to offer growth potential without
regard to current dividend yield.
The Fund may invest all or a portion of its assets for temporary
defensive purposes, in U.S. Treasury bills or other short-term
interest bearing securities and in bank interest bearing checking
accounts, including interest bearing checking accounts of the
Custodian. Under normal circumstances, such short-term
investments are expected to represent only a nominal portion of
the Fund's total assets.
As a diversified company, at least 75% of the Fund's total assets
must be invested in (a) securities limited in respect of any one
issuer to an amount not greater than 5% of the value of the total
assets of the Fund and not greater than 10% of the outstanding
voting securities of such issuer, (b) cash and cash items, (c)
government securities, and (d) securities of other investment
companies.
Although the Fund intends to diversify its investments,
investment in the Fund generally will be subject to market risks
associated with the ownership of common stock since the net asset
value of shares of the Fund will reflect the underlying value of
the common stock owned by the Fund.
ORGANIZATION AND OPERATION OF THE FUND
The Fund is a diversified, open-end management investment company
organized as an Ohio business trust on October 26, 1983. The
responsibility for management of the Fund is vested in its Board
of Trustees which, among other things, is empowered by the Fund's
Declaration of Trust to elect officers of the Fund and contract
with and provide for the compensation of agents, consultants and
other professionals to assist and advise in such management.
The Fund has entered into an Investment Advisory Agreement
("Investment Advisory Agreement") with Parker Carlson & Johnson,
Inc., 300 Old Post Office, 120 West Third Street, Dayton, Ohio
(the "Adviser") in which the Adviser has agreed to provide the
Fund with continuous investment advice, including management of
the Fund's portfolio securities. The Adviser was organized in
1982 and has been the only investment adviser of the Fund. James
M. Johnson is primarily responsible for the day to day management
of the Fund's portfolio and has been since the Fund's inception
(December 23, 1983). Mr. Johnson has been the Secretary of the
Adviser since September, 1982 and Secretary and a Trustee of the
Fund since its inception.
The Adviser is also the investment adviser to PC&J Preservation
Fund and to various individual, business and pension fund clients
and is registered under the Investment Advisers Act of 1940. All
officers of the Adviser are members of the Financial Analysts
Federation, and Mr. Johnson and Mrs. Carlson are Chartered
Financial Analysts.
As compensation for the investment advice, the Fund will pay the
Adviser a monthly fee, accrued daily, based on an annual rate of
1% of the daily net asset value of the Fund.
The Fund has entered into a Management and Transfer Agent
Agreement ("Management Agreement") with PC&J Service Corp., 300
Old Post Office, 120 West Third Street, Dayton, Ohio ("Service
Corp."), in which Service Corp. has agreed to manage the Fund's
business affairs, exclusive of investment advice provided by
Adviser, and to serve as its transfer and dividend disbursing
agent. Service Corp. pays all expenses of the Fund (excluding
interest, taxes, brokerage and extraordinary expenses and fees
payable under the Investment Advisory Agreement and Management
Agreement, all of which are payable by the Fund).
These expenses include, but are not limited to, costs of
furnishing documents to shareholders and regulatory agencies,
registration and filing fees, legal, auditing, and custodian
fees. Service Corp. pays the expenses of shareholders' and
Trustees' meetings and any fees paid to Trustees who are not
interested persons of the Adviser. Service Corp. was organized in
October 1983, and its officers and directors are identical to
those of Adviser.
As compensation for the overall management, transfer and dividend
disbursing agent services and payment of the foregoing expenses,
the Fund will pay Service Corp. a monthly fee, accrued daily,
based on an annual rate of .5% of the daily net asset value of
the Fund.
The Fund has appointed Star Bank, N.A., Cincinnati ("Custodian"),
425 Walnut Street, Cincinnati, Ohio 45202, as the Fund's
custodian. In such capacity the Custodian will receive all new
account applications in connection with initial purchases of the
Fund's shares, will receive and credit to the account of the Fund
all checks payable to the Fund and all wire transfers to the
Fund. The Custodian will hold all portfolio securities and other
assets owned by the Fund. Compensation for such services will be
paid by Service Corp.
Performance information for the Fund is contained in the Fund's
annual report which will be made available upon request and
without charge.
DISTRIBUTION EXPENSE PLAN
Certain of the foregoing expenses of the Fund payable by Adviser
and Service Corp. are for activities associated with the sale of
Fund shares. For example, Adviser and Service Corp. are
responsible for the compensation of all employees and officers
common to such organizations and the Fund. Also, Service Corp. is
responsible for the costs of preparation and printing the Fund's
registration statements and prospectuses and its registration and
filing fees.
While the Fund does not believe that payments made to Adviser
under the Investment Advisory Agreement and to Service Corp.
under the Management Agreement indirectly are for activity
primarily intended to result in the sale of Fund shares, the Fund
and its shareholders have adopted a Distribution Expense Plan
authorizing payments under the Investment Advisory Agreement and
Management Agreement which might be deemed to be primarily
intended to result in the sale of Fund shares.
DESCRIPTION OF SHARES AND TAXES
Ownership records of shares are maintained by the Fund's transfer
agent, Service Corp., which confirms purchase and sale of shares
and dividend and capital gain distributions. Certificates
representing shares will not be issued.
Shareholders have equal voting rights on all matters submitted
for shareholder vote. The Declaration of Trust limits the matters
requiring a shareholder vote to the election or removal of
Trustees, approval of certain contracts of the Fund such as the
Investment Advisory Agreement with Adviser, approval of the
termination or reorganization of the Fund and certain other
matters described in such Declaration.
Dividends and distributions on shares shall be made with such
frequency and in such amounts as the Trustees from time to time
shall determine. Long-term capital gains normally will be
distributed only once annually. Distributions will be made only
in additional shares and not in cash. The tax consequences
described in this section apply to dividends and distributions
even though paid in additional shares and not in cash.
It is expected that the Trustees will distribute annually to
shareholders all or substantially all of the Fund's net income
and net realized capital gains. Distributed net income and
distributed net realized short-term capital gains are taxable to
investors for federal income tax purposes as ordinary income.
Distributed net realized long-term capital gains are taxable to
investors as long-term capital gains, even though paid in
additional shares and not in cash. Shareholders not subject to
federal income tax on their income will not, of course, be
required to pay federal income tax on any amounts distributed to
them.
The Fund will inform shareholders of the amount and nature of
such income and capital gains. Dividend and capital gain
distributions may be subject to state and local taxes.
Shareholders are urged to consult their own tax advisers
regarding specific questions as to federal, state or local taxes
and about the tax effect of distributions and withdrawals from
the Fund.
Holders of shares should direct all inquiries concerning the
purchase or redemption of shares to the Fund. All other questions
should be directed to Service Corp.
HOW TO INVEST IN THE FUND
You may purchase shares of the Fund on any business day the New
York Stock Exchange is open. The minimum initial investment is
$1,000 ($2,000 for tax deferred retirement plans). There is no
required minimum subsequent investment. The purchase price for
shares will be the net asset value per share next determined
after the order is received. (See "Determination of Share
Price".) There is no sales charge or commission.
The Fund reserves the right to refuse to sell to any person. If a
purchaser's check is returned to the Custodian as uncollectible,
the purchase order is subject to cancellation and the purchaser
will be responsible for any loss incurred by the Fund.
INITIAL INVESTMENT BY MAIL
You may purchase shares of the Fund by mail, in at least the
minimum amount, by submitting a check payable to the order of
"PC&J Performance Fund" and a completed and signed new account
application, which accompanies this Prospectus (page 10), to the
Custodian at the following address:
PC&J - Lockbox Account
Location 0614
Cincinnati, Ohio 45264-0614
The Fund confirms with the Custodian, by telephone and on a daily
basis as required, the receipt by the Custodian of the foregoing
information, payment and properly completed new account
application.
INITIAL INVESTMENTS BY WIRE
You may purchase shares of the Fund by wire, in at least the
minimum amount, by (a) first completing and signing the new
account application, (b) telephoning (937-223-0600) the
information contained in the new account application to the Fund,
(c) mailing the completed and signed new account application to
the Custodian at the address set forth in the preceding
paragraph, and (d) instructing your bank to wire Federal Funds to
the Custodian. Your bank may charge you a fee for sending such
wire.
SUBSEQUENT INVESTMENTS
You may purchase additional shares of the Fund by (a) first
providing the Fund, by mail or by telephone, the necessary
information concerning the name of your account and its number
and (b) thereafter providing the Custodian the necessary payment,
which may be by check or by wire transfer, as described above.
EFFECTIVE DATE OF PURCHASE
The Fund confirms with the Custodian, by telephone and on a daily
basis as required, the receipt by the Fund or the Custodian of
the foregoing information, payment and properly completed new
account application. The Fund will deem a purchase to be
effective only after confirmation of the receipt of such
information, payment and the proper completion of the new account
application. The Fund's transfer agent, Service Corp., mails you
confirmations of all investments and redemptions.
HOW TO REDEEM YOUR INVESTMENT
The Fund will redeem all or part of your shares without charge at
the net asset value next determined after receipt by the Fund of
your properly completed written request for redemption. Payment
for shares of the Fund tendered for redemption is made within 7
days after tender in proper form. However, payment in redemptions
of shares purchased by check will be effected only after the
check has been collected, which normally occurs within fifteen
days. The Fund further reserves the right to delay payment for
the redemption of shares until such time as the Fund has received
the properly completed new account application with respect to
such shares.
Shares of the Fund may be redeemed on each day that the Fund is
open for business by sending a written redemption request to the
Fund. The written request must be signed by each shareholder,
including each joint owner, exactly as the name appears on the
Fund's account records. The redemption request must state the
number or dollar amount of shares to be redeemed and your account
number. For the protection of shareholders, additional
documentation may be required from individuals, corporations,
partnerships, executors, trustees and other fiduciaries.
Because the Fund incurs certain fixed costs in maintaining
shareholder accounts, the Fund reserves the right to redeem all
shares of any account on sixty days' written notice if the net
asset value of the account, due to a redemption, is less than
$5,000 ($1,000 for tax deferred retirement plans), or such other
minimum amount as the Fund may determine from time to time. A
shareholder may increase the value of his shares to the minimum
amount within the sixty day period. Each share of the Fund is
subject to redemption at any time if the Board of Trustees
determines in its sole discretion that failure to so redeem may
have materially adverse consequences to all or any of the
shareholders of the Fund. It is anticipated that the redemption
provisions of the preceding sentence would be used only to
preserve the tax status of a Fund or to close a Fund.
The Fund may suspend the right of redemption or may delay payment
(a) during any period the New York Stock Exchange is closed other
than for customary weekend and holiday closings, (b) when trading
on the New York Stock Exchange is restricted, or an emergency
exists (as determined by the rules and regulations of the
Securities and Exchange Commission) so that disposal of the
securities held in the Fund or determination of the net asset
value of the Fund is not reasonably practicable, or (c) for such
other periods as the Securities and Exchange Commission by order
may permit for the protection of the Fund's shareholders.
DETERMINATION OF SHARE PRICE
On each day that the Fund is open for business, the net asset
value of the shares is determined as of 4:15 P.M., Dayton, Ohio
time. The Fund is open for business on each day the New York
Stock Exchange is open for business and on any other day when
there is sufficient trading in the Fund's portfolio securities
that the Fund's net asset value might be materially affected. The
net asset value per share is computed by dividing the sum of the
value of the securities held by the Fund plus any cash or other
assets (including interest and dividends accrued but not yet
received) minus all liabilities (including estimated accrued
expenses) by the total number of shares then outstanding.
All portfolio securities are valued on the following bases:
(a) securities which are traded on stock exchanges are valued at
the last sale price as of the close of business on the day the
securities are being valued, (b) securities traded in the
over-the-counter market are valued at either the mean between the
bid and ask prices or the last sale price as one or the other may
be quoted by the National Association of Securities Dealers
Automated Quotations System ("NASDAQ") as of the close of
business on the day the securities are being valued, (c)
securities and other assets for which market quotations are not
readily available are valued at fair value as determined in good
faith by or under the direction of the Board of Trustees of the
Fund. The share price of the Fund will fluctuate with the value
of its portfolio securities.
AUDITORS
The Fund has selected the firm of Deloitte & Touche,LLP as the
independent auditors for the Fund. Deloitte & Touche,LLP will be
paid for its services by Service Corp.
<PAGE>
PC&J PERFORMANCE FUND
NEW ACCOUNT APPLICATION
- ------------------------------------------------------------------------------
INSTRUCTIONS: Complete Sections 1 through 4 where applicable. Please print
or type. This application should be completed, signed, and mailed to PC&J -
Lockbox Account, Cincinnati. If payment is by check or other negotiable
instrument, such check or other negotiable instrument payable to PC&J Mutual
Funds should accompany the New Account Application. Refer to the Prospectus
for more detailed information.
Mail to: PC&J - Lockbox Account
Location 0614
Cincinnati, Ohio 45264-0614
- -------------------------------------------------------------------------------
1. REGISTRATION (Complete one section only)
A) INDIVIDUALS ------------------------------------- -----------------
AND First Name Initial Last Name Social Security
JOINT TENANTS Number
--------------------------------------------------------
Joint Owner (A Joint Tenancy with Right of survivorship
will be presumed, unless otherwise indicated)
---------------------------------------------------------------------------
B) GIFTS ------------------------------------- -----------------
TO Custodian's Name (Only One) Minor's State
MINORS of Residence
------------------------------------- -----------------
Minor's Name (Only one) Minor's Social
Security Number
---------------------------------------------------------------------------
C) TRUSTS AND ------------------------------------- ------------------
QUALIFIED Trust or Plan Name Tax Identification
RETIREMENTS Number
PLANS -------------------------------------
Name of Trustee(s)
---------------------------------------------------------------------------
D) ORGANIZATIONS ------------------------------------- ------------------
Name of Organization Tax Identification
Number
TYPE: Corporation Partner Association
----- ----- -----
- -------------------------------------------------------------------------------
(Over, please)
<PAGE>
- -------------------------------------------------------------------------------
2. MAILING ADDRESS
---------------------------------------------------- -----------------
Street Telephone Number
---------------------------------------------------- -----------------
City State Zip Code
------------------------------------
Attention (if any)
- -------------------------------------------------------------------------------
3. INITIAL INVESTMENT (Complete One Only)
A. I am mailing $ by check or other negotiable instrument
---------------
Amount
B. I have arranged $ for wire transfer
---------------
Amount
to PC&J - Lockbox Account, Cincinnnati, at the address set forth above
for the purchase of shares of PC&J Performance Fund. The minimum
initial purchase is $1,000 ($2,000 for tax deferred retirement plans).
- -------------------------------------------------------------------------------
4. SIGNATURES
I have received and reviewed a copy of the Fund's Prospectus dated
March 13, 1998 and understand that (a) certificates with respect to
shares of the Fund will not be issued, and (b) dividends and capital
gain distributions will be made only in additional shares of the Fund
and not in cash.
---------------- ---------------------------------------------------
Date Signature (Individual, Custodian, Trustee or Other)
---------------- ---------------------------------------------------
Date Signature (Individual, Custodian, Trustee or Other)
- -------------------------------------------------------------------------------
<PAGE>
PROSPECTUS
March 13, 1998
PC&J
PERFORMANCE
FUND
Investment Adviser
Parker Carlson & Johnson, Inc.
300 Old Post Office
120 West Third Street
Dayton, Ohio 45402
Manager and Transfer Agent PC&J
PERFORMANCE
PC&J Service Corp. FUND
300 Old Post Office
120 West Third Street
Dayton, Ohio 45402
AUDITORS
Deloitte & Touche, LLP
1700 Courthouse Plaza Northeast
Dayton, Ohio 45402
CUSTODIAN
Star Bank, N.A., Cincinnati
425 Walnut Street
Cincinnati, Ohio 45202
<PAGE>
STATEMENT OF ADDITIONAL INFORMATION
MARCH 13, 1998
PC&J PERFORMANCE FUND
A No-Load Fund
300 Old Post Office
120 West Third Street
Dayton, Ohio 45402
Investment Adviser: Parker Carlson & Johnson, Inc.
(the "Adviser")
INVESTMENT OBJECTIVE
The investment objective of PC&J Performance Fund (the "Fund") is
long-term growth of capital through investment in common stocks.
Current income is of secondary importance.
IMPORTANT FEATURES
Investment for Capital Growth
No Sales Commissions or Withdrawal Charges
Professional Management
Diversification
This Statement of Additional Information is not a prospectus and
should be read in conjunction with the Prospectus of the Fund
dated March 13, 1998 (the "Prospectus") which is available upon
request and without charge by calling the Fund at 937-223-0600.
This Statement of Additional Information is incorporated by
reference in its entirety into the Prospectus.
<PAGE>
TABLE OF CONTENTS
PAGE
INVESTMENT OBJECTIVE AND POLICIES ............................. 1
Fundamental .............................................. 1
Non-Fundamental .......................................... 2
State Restrictions ....................................... 3
ORGANIZATION AND OPERATION OF THE FUND ........................ 3
Principal Holders of Equity Securities ................... 5
Investment Adviser ....................................... 5
Manager and Transfer Agent ............................... 5
Custodian ................................................ 5
Auditors ................................................. 6
PORTFOLIO TRANSACTIONS AND BROKERAGE ALLOCATION ............... 6
DISTRIBUTION EXPENSE PLAN ..................................... 7
DESCRIPTION OF SHARES AND TAXES ............................... 7
HOW TO INVEST IN THE FUND ..................................... 7
Initial Investment By Mail ............................... 7
Initial Investments By Wire .............................. 7
Subsequent Investments ................................... 7
Effective Date of Purchase ............................... 7
HOW TO REDEEM YOUR INVESTMENT ................................. 8
DETERMINATION OF SHARE PRICE .................................. 8
FINANCIAL STATEMENTS .......................................... 8
<PAGE>
INVESTMENT OBJECTIVE AND POLICIES
FUNDAMENTAL
Information contained in the Prospectus under the heading
"Investment Objective and Policies" is incorporated herein by
reference. The investment limitations described below have been
adopted by the Fund and are fundamental ("Fundamental"), I.E.,
they may not be changed without the affirmative vote of a
majority of the outstanding shares of the Fund. As used in the
Prospectus and this Statement of Additional Information, the term
"majority" of the outstanding shares of the Fund means the lesser
of (1) 67% or more of the outstanding shares of the Fund present
at a meeting, if the holders of more than 50% of the outstanding
shares of the Fund are present or represented at such meeting; or
(2) more than 50% of the outstanding shares of the Fund. Other
investment practices which may be changed by the Board of
Trustees without the approval of shareholders to the extent
permitted by applicable law, regulation or regulatory policy are
considered non-fundamental ("Non-Fundamental").
1. BORROWING MONEY. The Fund will not borrow money,
except (a) from a bank, provided that immediately after such
borrowing there is an asset coverage of 300% for all borrowings
of the Fund; or (b) from a bank or other persons for temporary
purposes only, provided that such temporary borrowings are in an
amount not exceeding 5% of the Fund's total assets at the time
when the borrowing is made. This limitation does not preclude
the Fund from entering into reverse repurchase transactions,
provided that the Fund has an asset coverage of 300% for all
borrowings and repurchase commitments of the Fund pursuant to
reverse repurchase transactions.
2. SENIOR SECURITIES. The Fund will not issue senior
securities. This limitation is not applicable to activities that
may be deemed to involve the issuance or sale of a senior
security by the Fund, provided that the Fund's engagement in such
activities is (a) consistent with or permitted by the Investment
Company Act of 1940, as amended, the rules and regulations
promulgated thereunder, or interpretations of the Securities and
Exchange Commission or its staff and (b) as described in the
Prospectus and the Statement of Additional Information.
3. UNDERWRITING. The Fund will not act as underwriter of
securities issued by other persons. This limitation is not
applicable to the extent that, in connection with the disposition
of portfolio securities (including restricted securities), the
Fund may be deemed an underwriter under certain federal
securities laws.
4. REAL ESTATE. The Fund will not purchase or sell real
estate. This limitation is not applicable to investments in
securities which are secured by or represent interests in real
estate. This limitation does not preclude the Fund from
investing in mortgage-related securities, or investing in
companies which are engaged in the real estate business or have a
significant portion of their assets in real estate (including
real estate investment trusts).
5. COMMODITIES. The Fund will not purchase or sell
commodities unless acquired as a result of ownership of
securities or other investments. This limitation does not
preclude the Fund from purchasing or selling options or futures
contracts, from investing in securities or other instruments
backed by commodities or from investing in companies which are
engaged in a commodities business or have a significant portion
of their assets in commodities.
6. LOANS. The Fund will not make loans to other persons,
except (a) by loaning portfolio securities, (b) by engaging in
repurchase agreements, or (c) by purchasing nonpublicly offered
debt securities. For purposes of this limitation, the term
"loans" shall not include the purchase of a portion of an issue
of publicly distributed bonds, debentures or other securities.
7. CONCENTRATION. The Fund will not invest 25% or more of
its total assets in a particular industry. This limitation is
not applicable to investments in obligations issued or guaranteed
by the U.S. government, its agencies and instrumentalities or
repurchase agreements with respect thereto.
With respect to the percentages adopted by the Fund as maximum
limitations on its investment policies and limitations, an excess
above the fixed percentage will not be a violation of the policy
or limitation unless the excess results immediately and directly
from the acquisition of any security or the action taken. It is
the current position of the SEC staff that the provisions of this
paragraph do not apply to a fund's borrowing policy (paragraph 1
above). As long as the SEC staff maintains that position,
neither Fund will apply the provisions to its borrowing policy.
Notwithstanding the concentration limitation in paragraph 7, any
investment company, whether organized as a trust, association or
corporation, or a personal holding company, may be merged or
consolidated with or acquired by the Fund, provided that if such
merger, consolidation or acquisition results in any concentration
prohibited by said paragraph 7, the Fund shall, within ninety
days after the consummation of such merger, consolidation or
acquisition, dispose of all of the securities of such issuer so
acquired or such portion thereof as shall bring the total
investment therein within the limitation imposed by said
paragraph 7 above as of the date of consummation.
NON-FUNDAMENTAL
The following limitations have been adopted by the Fund and are
Non-Fundamental.
1. PLEDGING. The Fund will not mortgage, pledge,
hypothecate or in any manner transfer, as security for
indebtedness, any assets of the Fund except as may be necessary
in connection with borrowings described in limitation (1) above.
Margin deposits, security interests, liens and collateral
arrangements with respect to transactions involving options,
futures contracts, short sales and other permitted investments
and techniques are not deemed to be a mortgage, pledge or
hypothecation of assets for purposes of this limitation.
2. MARGIN PURCHASES. The Fund will not purchase
securities or evidences of interest thereon on "margin." This
limitation is not applicable to short term credit obtained by the
Fund for the clearance of purchases and sales or redemption of
securities, or to arrangements with respect to transactions
involving options, futures contracts, short sales and other
permitted investments and techniques.
3. OPTIONS. The Fund will not purchase or sell puts,
calls, options or straddles except as described in the Prospectus
and the Statement of Additional Information.
4. SHORT SALES. The Fund will not effect short sales of
securities unless it owns or has the right to obtain securities
equivalent in kind and amount to the securities sold short.
5. ILLIQUID INVESTMENTS. The Fund will not invest more
than 15% of its net assets in securities for which there are
legal or contractual restrictions on resale and other illiquid
securities.
STATE RESTRICTIONS
To comply with the current blue sky regulations of the State of
Ohio, the Fund presently intends to observe the following
restrictions, which may be changed by the Board of Trustees
without shareholder approval.
The Fund will not purchase or retain securities of any issuer if
the Trustees and officers of the Fund or of the Adviser, who
individually own beneficially more than 0.5% of the outstanding
securities of such issuer, together own beneficially more than 5%
of such securities. The Fund will not purchase securities issued
by other investment companies except by purchase in the open
market where no commission or profit to a sponsor or dealer
results from such purchase other than customary broker's
commission or except when such purchase is part of a plan of
merger, consolidation, reorganization or acquisition. The Fund
will not borrow (other than by entering into reverse repurchase
agreements), pledge, mortgage or hypothecate more than one-third
of its total assets. In addition, the Fund will engage in
borrowing (other than reverse repurchase agreements) only for
emergency or extraordinary purposes and not for leverage. The
Fund will not invest more than 15% of its total assets in
securities of issuers which, together with any predecessors, have
a record of less than three years continuous operation or
securities of issuers which are restricted as to disposition.
The Fund will not purchase the securities of any issuer if such
purchase at the time thereof would cause more than 10% of the
voting securities of any issuer to be held by the Fund.
It is the Fund's policy to sell securities that the Fund's
Investment Adviser, Parker Carlson & Johnson, Inc. (the
"Adviser") considers overvalued, replacing them with undervalued
securities and to do so as often as the Adviser deems prudent and
appropriate. For the Fund's fiscal year ended December 31, 1997
the Fund's portfolio turnover rate was 22.44%.
ORGANIZATION AND OPERATION OF THE FUND
Information contained in the Prospectus under the heading
"Organization and Operation of the Fund" is incorporated herein
by reference. The names of the executive officers and Trustees of
the Fund are shown in the table below. Each Trustee who is an
"interested person" of the Fund, as defined in the Investment
Company Act of 1940, is indicated by an asterisk.
<TABLE>
<CAPTION>
POSITION HELD PRINCIPAL OCCUPATION(S)
NAME, ADDRESS AND AGE WITH FUND DURING PAST FIVE YEARS
<S> <C> <C>
*Leslie O. Parker III <F1> President and Since September 1982,
300 Old Post Office Trustee President of Adviser
120 West Third Street
Dayton, Ohio 45402
Age:58
*Kathleen A. Carlson, CFA <F1> Treasurer and Since September 1982,
300 Old Post Office Trustee Treasurer of Adviser
120 West Third Street
Dayton, Ohio 45402
Age:42
*James M. Johnson, CFA <F1> Secretary and Since September 1982,
300 Old Post Office Trustee Secretary of Adviser
120 West Third Street
Dayton, Ohio 45402
Age:45
Donald N. Lorenz Trustee Since December 1980,Vice
367 West Second Street President-Finance and
Dayton, Ohio 45402 Treasurer, Price Brothers
Age:63 Company (concrete pipe
products)
Thomas H. Rodgers Trustee Since July 1986, Vice
World Headquarters Blvd. President-General Counsel
Troy, Ohio 45373 and Secretary, Premark
Age:53 International, Inc. Food
Equipment Group
<FN>
<F1> Each of these individuals serves as a director of the Adviser.
</FN>
</TABLE>
Each of the foregoing Trustees also is a Trustee of PC&J
Preservation Fund.
As of February 13, 1998, all Trustees and officers of the Fund as
a group owned 1.69% of the outstanding shares of the Fund.
The compensation paid to the Trustees of the Fund for the year
ended December 31, 1997 is set forth in the following table:
<TABLE>
<CAPTION>
PENSION OR ESTIMATED TOTAL
RETIREMENT ANNUAL COMPENSA-
AGGREGATE ACCRUED AS BENEFITS TION FROM
COMPENSA- PART OF UPON FUND
TION FROM FUND RETIRE- COMPLEX
NAME FUND EXPENSES MENT
<S> <C> <C> <C> <C>
Leslie O. Parker, III $ 0 $0 $0 $ 0
Kathleen A. Carlson $ 0 $0 $0 $ 0
James M. Johnson $ 0 $0 $0 $ 0
Donald N. Lorenz $350 $0 $0 $700
Thomas H. Rodgers $350 $0 $0 $700
</TABLE>
The Fund and PC&J Preservation Fund are the two investment
companies in the PC&J Mutual Funds complex. They have identical
Boards of Trustees, and Board and committee meetings of both
Funds are held at the same time. Although the fees paid to
Trustees are expenses of the Funds, Service Corp. makes the
actual payment pursuant to its management agreements with the
Funds, which obligate Service Corp. to pay all of the operating
expenses of the Funds (with limited exceptions).
PRINCIPAL HOLDERS OF EQUITY SECURITIES
The following table sets forth each person or group known to the
Fund to be the record or beneficial owner of five percent (5%) or
more of the Fund's shares as of February 13, 1998:
NONE
INVESTMENT ADVISER
Information contained in the Prospectus under the heading
"Organization and Operation of the Fund" is incorporated herein
by reference.
The Fund's President, Treasurer and Secretary are the President,
Treasurer and Secretary, respectively, of Adviser and own in the
aggregate a controlling interest in Adviser.
For the Fund's fiscal years ended December 31, , 1995,1996, and
1997 the Adviser was paid $225,207, $259,438, and $325,779
respectively, under the Investment Advisory Agreement.
The Adviser and Service Corp., as manager, jointly and severally
have agreed to reimburse the Fund (up to the amount of the
respective fee received by Adviser or Service Corp.) for the
aggregate expenses of the Fund during any fiscal year which
exceed the limits prescribed by any state in which the shares of
the Fund are registered for sale. Currently, the most stringent
limitation provides that annual expenses of the Fund, including
investment advisory and management fees but excluding interest,
taxes, brokerage commissions and extraordinary expenses, shall
not exceed two percent of the first ten million dollars of the
Fund's average net assets and one and one-half percent of average
net assets in excess of ten million dollars. The Fund's expenses
have never exceeded the foregoing limitations.
MANAGER AND TRANSFER AGENT
Information contained in the Prospectus under the heading
"Organization and Operation of the Fund" is incorporated herein
by reference.
For the Fund's fiscal years ended December 31, , 1995, 1996, and
1997 Service Corp. was paid $112,603, $129,719, and $162,890
respectively, under the Management Agreement.
Service Corp. has agreed to pay the Fund's organizational costs
and to provide and pay the compensation for the Fund's officers
and employees, to provide and pay for office space and facilities
required for its operation and generally to provide and pay for
the general administration and operation of the Fund, including
its compliance obligations under state and federal laws and
regulations (but excluding interest, taxes, brokerage and
extraordinary expenses and fees payable under the Investment
Advisory Agreement and Management Agreement, all of which are
payable by the Fund).
CUSTODIAN
Information contained in the Prospectus under the heading
"Organization and Operation of the Fund" is incorporated herein
by reference.
AUDITORS
Information contained in the Prospectus under the heading
"Auditors" is incorporated herein by reference.
The Auditors' principal business address is: 1700 Courthouse
Plaza Northeast, Dayton, Ohio 45402.
It is expected that such independent public accountants will
audit the annual financial statements of the Fund, assist in the
preparation of the Fund's federal and state tax returns and
review certain of the Fund's filings with the Securities and
Exchange Commission.
PORTFOLIO TRANSACTIONS AND BROKERAGE ALLOCATION
Subject to the policies established by the Board of Trustees of
the Fund, the Adviser is responsible for the Fund's portfolio
decisions and the placing of the Fund's portfolio transactions.
In executing such transactions, the Adviser seeks to obtain the
best net results for the Fund taking into account such factors as
price (including the applicable brokerage commission or dealer
spread), size of order, difficulties of execution and operational
facilities of the firm involved and the firm's risk in
positioning a block of securities. While the Adviser generally
seeks reasonably competitive commission rates, for the reasons
stated in the prior sentence the Fund will not necessarily be
paying the lowest commission or spread available.
The Adviser may consider (a) provision of research, statistical
and other information to the Fund or to the Adviser, and (b) the
occasional sale by a broker-dealer of Fund shares as factors in
the selection of qualified broker-dealers who effect portfolio
transactions for the Fund so long as the Adviser's ability to
obtain the best net results for portfolio transactions of the
Fund is not diminished. Such research services include
supplemental research, securities and economic analyses, and
statistical services and information with respect to the
availability of securities or purchaser or seller of securities.
Such research services may also be useful to the Adviser in
connection with its services to other clients. Similarly,
research services provided by brokers serving such other clients
may be useful to the Adviser in connection with its services to
the Fund. Although this information and the occasional sale by a
broker-dealer of Fund shares is useful to the Fund and the
Adviser, it is not possible to place a dollar value on it. It is
the opinion of the Board of Trustees and the Adviser that the
review and study of this information and the occasional sale by a
broker-dealer of Fund shares will not reduce the overall cost to
the Adviser of performing its duties to the Fund under the
Investment Advisory Agreement. The Fund is not authorized to pay
brokerage commissions which are in excess of those which another
qualified broker would charge solely by reason of brokerage,
research or occasional sales services provided.
For the Fund's fiscal years ended December 31, , 1995, 1996, and
1997 the Fund paid 58,714, $51,025, $29,608 respectively, in
brokerage commissions. Of this amount approximately 100% was
paid to firms which provided either research, statistical or
other information to the Fund or Adviser.
To the extent that the Fund and other clients of the Adviser seek
to acquire the same security at about the same time, the Fund may
not be able to acquire as large a position in such security as it
desires or it may have to pay a higher price for the security.
Similarly, the Fund may not be able to obtain as large an
execution of an order to sell or as high a price for any
particular portfolio security if the other client desires to sell
the same portfolio security at the same time. On the other hand,
if the same securities are bought or sold at the same time by
more than one client, the resulting participation in volume
transactions could produce better executions for the Fund. In the
event that more than one client purchases or sells the same
security on a given date, the purchases and sales will be
allocated by the Adviser in a manner that is fair and equitable
to all parties involved.
DISTRIBUTION EXPENSE PLAN
Information contained in the Prospectus under the heading
"Distribution Expense Plan" is incorporated herein by reference.
DESCRIPTION OF SHARES AND TAXES
Information contained in the Prospectus under the heading
"Description of Shares and Taxes" is incorporated herein by
reference.
Shareholders have neither any preemptive rights to subscribe for
additional shares nor any cumulative voting rights. In the event
of a liquidation, shareholders of the Fund are entitled to
receive the excess of the assets of the Fund over the liabilities
of the Fund in proportion to the shares of the Fund held by them.
The Fund has qualified and intends to qualify as a regulated
investment company under Subchapter M of the Internal Revenue
Code of 1986, as amended.
HOW TO INVEST IN THE FUND
Information contained in the Prospectus under the heading "How to
Invest in the Fund" is incorporated herein by reference.
INITIAL INVESTMENT BY MAIL
Information contained in the Prospectus under the heading "How to
Invest in the Fund - Initial Investments by Mail" is incorporated
herein by reference.
INITIAL INVESTMENTS BY WIRE
Information contained in the Prospectus under the heading "How to
Invest in the Fund - Initial Investments by Wire" is incorporated
herein by reference.
SUBSEQUENT INVESTMENTS
Information contained in the Prospectus under the heading "How to
Invest in the Fund - Subsequent Investments" is incorporated
herein by reference.
EFFECTIVE DATE OF PURCHASE
Information contained in the Prospectus under the heading "How to
Invest in the Fund - Effective Date of Purchase" is incorporated
herein by reference.
HOW TO REDEEM YOUR INVESTMENT
Information contained in the Prospectus under the heading "How to
Redeem Your Investment" is incorporated herein by reference.
DETERMINATION OF SHARE PRICE
Information contained in the Prospectus under the heading
"Determination of Share Price" is incorporated herein by
reference.
FINANCIAL STATEMENTS
The financial statements and independent auditors' report required
to be included in this Statement of Additional Information are
incorporated herein by reference to the Trust's Annual Report to
Shareholders for the fiscal year ended December 31, 1997.
<PAGE>
PC&J PERFORMANCE FUND
PART C. OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
Included in Part A:
Financial Highlights for the period April 1, 1987 to
December 31, 1997
Included in Part B:
The financial statements and independent auditors' report for
PC&J Performance Fund required to be included in Part B are
incorporated therein by reference to the Registrant's Annual
Report to Shareholders for the year ended December 31, 1997.
(b) Exhibits
(1) (i) Copy of Registrant's Declaration of Trust is filed
herewith.
(ii) Copy of Amendment No. 1 to Registrant's Declaration
of Trust is filed herewith.
(iii) Copy of Amendment No. 2 to Registrant's Declaration
of Trust is filed herewith.
(2) (i) Copy of Registrant's By-Laws is filed herewith.
(ii) Copy of Amendment No. 1 to Registrant's By-laws
is filed herewith.
(3) Voting Trust Agreements - None.
(4) Specimen of Share Certificate - None.
(5) (a) (i) Copy of Registrant's Investment Advisory
Agreement with its Adviser, Parker Carlson
& Johnson, Inc. is filed herewith.
(ii) Amendment No. 1 to Registrant's Investment
Advisory Agreement is filed herewith.
(b) (i) Copy of Registrant's Management and Transfer
Agent Agreement with PC&J Service Corp. is
filed herewith.
(ii) Amendment No. 1 to Registrant's Management and
Transfer Agent Agreement is filed herewith.
(iii) Amendment No. 2 to Registrant's Management and
Transfer Agent Agreement is filed herewith.
(iv) Amendment No. 3 to Registrant's Management and
Transfer Agent Agreement is filed herewith.
(6) Underwriting or Distribution Contracts
and Agreements with Principal Underwriters and
Dealers - None.
(7) Bonus, Profit Sharing, Pension or Similar Contracts for
the benefit of Directors or Officers - None.
(8) Copy of Registrant's Agreement with the Custodian,
Star Bank, N.A., Cincinnati is filed herewith.
(9) Other Material Contracts - None.
(10) (i) Opinion and Consent of Brown, Cummins & Brown Co.,
LPA, which was filed as an exhibit to Registrant's
Post-Effective Amendment No. 15 , is hereby
incorporated by reference.
(11) Consent of Deloitte & Touche, LLP is filed herewith.
(12) Financial Statements Omitted from Item 23 - None.
(13) Copy of Letter of Initial Stockholder is filed herewith.
(14) Model Plan used in Establishment of any Retirement
Plan - None.
(15) Copy of Registrant's 12b-1 Distribution Expense Plan
is filed herewith.
(16) Schedule for Computation of Each Performance Quotation -
None.
(17) Financial Data Schedule - None.
(18) Rule 18f-3 Plan - None.
(19) (i) Power of Attorney for Registrant and Certificate
with respect thereto are filed herewith.
(ii) Power of Attorney for Trustees and Officers of
Registrant are filed herewith.
ITEM 25. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH THE REGISTRANT
None.
ITEM 26. NUMBER OF HOLDERS OF SECURITIES (AS OF FEBRUARY 13, 1998)
TITLE OF CLASS NUMBER OF RECORD HOLDERS
Shares of beneficial interest 209
ITEM 27. INDEMNIFICATION
(a) Article VI of the Registrant's Declaration of Trust
provides for indemnification of officers and Trustees as
follows:
SECTION 6.4 INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC.
The Fund shall indemnify each of its Trustees and officers
(including persons who serve at the Fund's request as
directors, officers or trustees of another organization in
which the Fund has any interest as a shareholder, creditor
or otherwise (hereinafter referred to as a "Covered Person")
against all liabilities, including but not limited to amounts
paid in satisfaction of judgments, in compromise or as fines
and penalties, and expenses, including reasonable accountants'
and counsel fees, incurred by any Covered Person in connection
with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person
may be or may have been involved as a party or otherwise or with
which such person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a
Trustee or officer, director or trustee, and except that no
Covered Person shall be indemnified against any liability to the
Fund or its Shareholders to which such Covered Person would
otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of such Covered Person's office ("disabling conduct").
Anything herein contained to the contrary notwithstanding, no
Covered Person shall be indemnified for any liability to the
Fund or its shareholders to which such Covered Person would
otherwise be subject unless (1) a final decision on the merits
is made by a court or other body before whom the proceeding was
brought that the Covered Person to be indemnified is not liable by
reason of disabling conduct or, (2) in the absence of such a
decision, a reasonable determination is made, based upon a review
of the facts, that the Covered Person 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 Fund as
defined in the Investment Company Act of 1940 nor parties to the
proceeding ("disinterested, non-party Trustees"), or (b) an
independent legal counsel in a legal opinion.
SECTION 6.5 ADVANCES OF EXPENSES. The Fund shall advance
attorneys' fees or other expenses incurred by a Covered Person
in defending a proceeding, upon the undertaking by or on behalf
of the Covered Person to repay the advance unless it is ultimately
determined that such Covered Person is entitled to indemnification,
so long as one of the following conditions is met: (i) the Covered
Person shall provide security for his undertaking, (ii) the Fund
shall be insured against losses arising by reason of any lawful
advances, or (iii) a majority of a quorum of the disinterested
non-party Trustees of the Fund, or an independent legal counsel in
a written opinion, shall determine, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that
there is reason to believe that the Covered Person ultimately
will be found entitled to indemnification.
SECTION 6.6 INDEMNIFICATION NOT EXCLUSIVE, ETC. The right of
indemnification provided by this Article VI shall not be exclusive
of or affect any other rights to which any such Covered Person may
be entitled. As used in this Article VI, "Covered Person" shall
include such person's heirs, executors and administrators, an
"interested Covered Person" is one against whom the action, suit
or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or has been
pending or threatened, and a "disinterested" person is a person
against whom none of such actions, suits or other proceedings or
another action, suit or other proceeding on the same or similar
grounds is then or has been pending or threatened. Nothing contained
in this Article VI shall affect any rights to indemnification to
which personnel of the Fund, other than Trustees and officers, and
other persons may be entitled by contract or otherwise under
law, nor the power of the Fund to purchase and maintain
liability insurance on behalf of any such person.
The Registrant may not pay for insurance which protects the
Trustees and officers against liabilities rising from action
involving willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of
their offices.
(b) The Registrant may maintain a standard mutual fund
and investment advisory professional and directors and
officers liability policy. The policy, if maintained,
would provide coverage to the Registrant, its Trustees
and officers, and its Adviser, among others. Coverage
under the policy would include losses by reason of any
act, error, omission, misstatement, misleading
statement, neglect or breach of duty.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
trustees, officers and controlling persons of the
Registrant pursuant to the provisions of Ohio law and
the Declaration of Trust of the Registrant or the
By-Laws of the Registrant, or otherwise, the Registrant
has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against
public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred
or paid by a trustee, officer or controlling person of
the Fund in the successful defense of any action, suit
or proceeding) is asserted by such trustee, officer or
controlling person in connection with the securities
being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such
issue.
ITEM 28. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
None.
ITEM 29. PRINCIPAL UNDERWRITERS
None.
ITEM 30. LOCATION OF ACCOUNTS AND RECORDS
Kathleen A. Carlson, 300 Old Post Office, 120 West
Third Street, Dayton, Ohio 45402, has been charged with
the responsibility of maintaining physical possession
of each account, book or other document required to be
maintained by Section 31(a) to the Investment Company
Act of 1940 and the rules promulgated thereunder.
ITEM 31. MANAGEMENT SERVICES NOT DISCUSSED IN PARTS A OR B
None.
ITEM 32. UNDERTAKINGS
(a) Not Applicable.
(b) Not Applicable.
(c) The Registrant hereby undertakes to furnish each person to
whom a prospectus is delivered with a copy of the Registrant's
latest annual report to shareholders, upon request and
without charge.
<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 the requirements for effectiveness of this Post-
Effective Amendment to its Registration Statement pursuant to
Rule 485(b) under the Securities Act of 1933 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in the City of Cincinnati,
and State of Ohio on this 6th day of March, 1998.
PC&J PERFORMANCE FUND
By: /s/ James M. Johnson
----------------------------------
JAMES M. JOHNSON, Attorney-In-Fact
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to Registration Statement has been
signed below by the following persons in the capacities and on
the date indicated:
SIGNATURE CAPACITY
Leslie 0. Parker III President, Trustee )
and Principal )
Executive )
Officer )
)
Kathleen A. Carlson Treasurer, Trustee, )
Principal Financial )
and Accounting )
Officer ) By:/s/ James M. Johnson
--------------------
) James M. Johnson,
James M. Johnson Secretary and ) Attorney-in-Fact
Trustee )
) March 6, 1998
Donald N. Lorenz Trustee )
)
Thomas H. Rodgers Trustee )
<PAGE>
EXHIBIT INDEX
EXHIBIT
Declaration of Trust ....................................... Ex-99.B1
Amendment No. 1 to Declaration of Trust .................... Ex-99.B1a
Amendment No. 2 to Declaration of Trust .................... Ex-99.B1b
By-Laws .................................................... Ex-99.B2
Amendment No. 1 to By-Laws ................................. Ex-99.B2a
Investment Advisory Agreement .............................. Ex-99.B5
Amendment No. 1 to Advisory Agreement ...................... Ex-99.B5a
Management and Transfer Agent Agreement .................... Ex-99.B5b
Amendment No. 1 to Management And Transfer Agent Agreemen... Ex-99.B5c
Amendment No. 2 to Management and Transfer Agent Agreement . Ex-99.B5d
Amendment No. 3 to Management and Transfer Agent Agreement . Ex-99.B5e
Agreement with the Custodian ............................... Ex-99.B8
Consent of Deloitte & Touche, LLP .......................... Ex-99.B11
Letter of Initial Stockholder .............................. Ex-99.B13
Distribution Expense Plan .................................. Ex-99.B15
Power of Attorney for Registrant and Certificate ........... Ex-99.POA1
Power of Attorney for Trustees and Officers of Registrant .. Ex-99.POA2
Ex99.B1
PDC&J PERFORMANCE FUND
DECLARATION OF TRUST
DATED AS OF OCTOBER 26, 1983
<PAGE>
PDC&J PERFORMANCE FUND
DECLARATION OF TRUST
TABLE OF CONTENTS
Page
ARTICLE I NAME, PRINCIPAL OFFICE AND DEFINITIONS 1
Section 1.1 Name and Principal Office 1
Section 1.2 Definitions 1
(a) "Fund" 1
(b) "Trustee" or "Trustees" 1
(c) "Share" or "Shares" 2
(d) "Shareholder" or "Shareholders" 2
(e) "1940 Act" 2
(f) "Commission" 2
(g) "Declaration of Trust" 2
(h) "By-Laws" 2
ARTICLE II PURPOSES OF FUND 2
ARTICLE III THE TRUSTEES 2
Section 3.1 Number, Designation, Election, Term, etc. 2
(a) Initial Trustees 2
(b) Number 2
(c) Term 3
(d) Resignation and Retirement 3
(e) Removal 3
(f) Vacancies 3
(g) Effect of Death, Resignation, etc. 4
(h) No Accounting 4
Section 3.2 Powers of Trustees 4
(a) Investments 5
(b) Disposition of Assets 5
(c) Ownership Powers 5
(d) Subscription 5
(e) Form of Holding 5
(f) Reorganization, etc. 6
(g) Voting Trusts, etc. 6
(h) Compromise 6
(i) Partnerships, etc. 6
(j) Borrowing and Security 6
(k) Guarantees, etc. 6
(1) insurance 6
(m) Pensions, etc. 6
Section 3.3 Certain Contracts 7
(a) Advisory 8
(b) Administration 8
(c) Distribution 8
(d) Custodian and Depository 8
(e) Transfer and Dividend Disbursing
Agency 8
(f) Shareholder Servicing 8
(g) Accounting 8
Section 3.4 Payment of Fund Expenses and
Compensation of Trustees 10
Section 3.5 Ownership of Assets of the Fund 10
ARTICLE IV SHARES 10
Section 4.1 Description of Shares 10
Section 4.2 Terms of Shares 11
(a) Dividends 11
(b) Liquidation 12
(c) Voting 12
(d) Redemption by Shareholder 12
(e) Redemption by Fund 13
(f) Net Asset Value 13
(g) Transfer 13
(h) Fractions 13
Section 4.3 Ownership of Shares 13
Section 4.4 Investments in the Fund 14
Section 4.5 No Preemptive Rights 14
Section 4.6 Status of Shares and Limitation of
Personal Liability 14
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS 14
Section 5.1 Voting Powers 14
Section 5.2 Meetings 15
Section 5.3 Record Dates 16
Section 5.4 Quorum and Required Vote 16
Section 5.5 Action by Written Consent 16
Section 5.6 Inspection of Records 17
Section 5.7 Additional Provisions 17
ARTICLE VI LIMITATION OF LIABILITY; INDEMNIFICATION 17
Section 6.1 Trustees, Shareholders, etc. Not
Personally Liable; Notice 17
Section 6.2 Trustee's Good Faith Action; Expert
Advice; No Bond or Surety 18
Section 6.3 Indemnification of Shareholders 18
Section 6.4 Indemnification of Trustees,
Officers, etc 18
Section 6.5 Advances of Expenses 19
Section 6.6 Indemnification Not Exclusive, etc 19
Section 6.7 Liability of Third Persons Dealing
with Trustees 20
ARTICLE VII MISCELLANEOUS 20
Section 7.1 Duration and Termination of Fund 20
Section 7.2 Reorganization 20
Section 7.3 Amendments 21
Section 7.4 Filing of Copies; References; Headings 21
Section 7.5 Applicable Law 22
Execution 22
<PAGE>
PDC&J PERFORMANCE FUND
DECLARATION OF TRUST
DECLARATION OF TRUST made at Dayton, Ohio, as of the 26th day of
October, 1983, by the Trustees thereunder, and by the holders of Shares of
beneficial interest to be issued thereunder as hereinafter provided.
WITNESSETH:
WHEREAS, this Fund has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of an Ohio business trust in accordance with the
provisions of Chapter 1746, Ohio Revised Code, and as hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets which they may from time to time acquire in
any manner as Trustees thereunder IN TRUST to manage and dispose of the same
upon the following terms and conditions for the benefit of the holders from
time to time of shares of beneficial interest in this Fund as hereinafter set
forth.
ARTICLE I
NAME, PRINCIPAL OFFICE AND DEFINITIONS
SECTION 1.1 NAME AND PRINCIPAL OFFICE. This Fund
shall be known as "PDC&J Performance Fund" and the Trustees shall conduct the
business of the Fund under that name or any other name as they may from time
to time determine. The principal office of the Fund is located in Dayton,
Ohio.
SECTION 1.2 DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Fund" refers to the Ohio business trust established by this
Declaration of Trust, as amended from time to time;
(b) "Trustee" or "Trustees" refers to the trustee or trustees of the
Fund named herein or elected in accordance with Article III;
(c) "Share"or "Shares"refers to the transferable unit or units of
interest into which the beneficial interest in the Fund shall be
divided from time to time;
(d) "Shareholder" or "Shareholders" means a record owner or owners of a
Share or Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(f) "Commission" shall have the meaning given it in the 1940 Act;
(g) "Declaration of Trust" shall mean this Declaration of Trust as
amended or restated from time to time; and
(h) "By-Laws" shall mean the By-Laws of the Fund as amended from time to
time.
ARTICLE II
PURPOSES OF FUND
The purpose of the Fund is to operate as an investment company and to
engage in any lawful act or activity for which business trusts may be formed
under Chapter 1746, Ohio Revised Code.
ARTICLE III
THE TRUSTEES
SECTION 3.1 NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) INITIAL TRUSTEES. Upon his execution of this Declaration of Trust or
a counterpart hereof or some other writing in which he accepts such
trusteeship and agrees to the provisions hereof, each of Leslie O.
Parker III, Roderick H. Dillon, Jr., Kathleen A. Carlson, James M.
Johnson, David A. Becher, J. Norman Eckstein and Robert C. Sammons
shall become a Trustee hereof.
(b) NUMBER. The Trustees serving as such, whether named above or
hereafter becoming a Trustee, may increase or decrease (to not less
than three) the number of Trustees to a number other than the number
theretofore determined. No decrease in the number of Trustees shall
have the effect of removing any Trustee from office prior to the
expiration of his term, but the number of Trustees may be decreased
in conjunction with the removal of a Trustee pursuant to subsection
(e) of this Section 3.1.
(c) TERM. Each Trustee, whether named above or hereafter becoming a
Trustee, shall serve as a Trustee until the next annual meeting of
Shareholders or any special meeting in lieu thereof and until the
election and qualification of his successor, if any, elected at such
meeting, or until such Trustee sooner dies, resigns, retires or is
removed.
(d) RESIGNATION AND RETIREMENT. Any Trustee may resign his trust or
retire as a Trustee, by written instrument signed by him and
delivered to the other Trustees or to any officer of the Fund, and
such resignation or retirement shall take effect upon such delivery
or upon such later date as is specified in such instrument.
(e) REMOVAL. Any Trustee may be removed with or without cause at any
time either by written instrument, signed by at least two-thirds of
the number of Trustees prior to such removal, specifying the date
upon which such removal shall become effective, or by the
Shareholders at any meeting called for the purpose.
(f) VACANCIES. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation,
retirement, removal or incapacity of any of the Trustees, or
resulting from an increase in the number of Trustees by the Trustees
may (but so long as there are at least three remaining Trustees, need
not unless required by the 1940 Act) be filled either by a majority
of the remaining Trustees through the appointment in writing of such
other person as such remaining Trustees in their discretion shall
determine (unless a shareholder election is required by the 1940 Act)
or by the election by the Shareholders, at a meeting called for the
purpose, of a person to fill such vacancy, and such appointment or
election shall be effective upon the written acceptance of the person
named therein to serve as a Trustee and agreement by such person to
be bound by the provisions of this Declaration of Trust, except that
any such appointment or election in anticipation of a vacancy to
occur by reason of retirement, resignation, or increase in number of
Trustees to be effective at a later date shall become effective only
at or after the effective date of said retirement, resignation, or
increase in number of Trustees. As soon as any Trustee so appointed
or elected shall have accepted such appointment or election and shall
have agreed in writing to be bound by this Declaration of Trust and
the appointment or election is effective, the Fund estate shall vest
in the new Trustee, together with the continuing Trustees, without
any further act of conveyance.
(g) EFFECT OF DEATH, RESIGNATION, ETC. The death, resignation,
retirement, removal, or incapacity of the Trustees, or any one of
them, shall not operate to annul or terminate the Fund or to revoke
or terminate any existing agency or contract created or entered into
pursuant to the terms of this Declaration of Trust.
(h) NO ACCOUNTING. Except to the extent required by the 1940 Act or
under circumstances which would justify his removal for cause, no
person ceasing to be a Trustee as a result of his death, resignation,
retirement, removal or incapacity (nor the estate of any such person)
shall be required to make an accounting to the Shareholders or
remaining Trustees upon such cessation.
SECTION 3.2 POWERS OF TRUSTEES. Subject to the provisions of this
Declaration of Trust, the business of the Fund shall be managed by the
Trustees, and they shall have all powers necessary or convenient to carry out
that responsibility and the purpose of the Fund. Without limiting the
foregoing, the Trustee may adopt By-Laws not inconsistent with this
Declaration of Trust providing for the conduct of the business and affairs of
the Fund and may amend and repeal them to the extent that such By-Laws do not
reserve that right to the Shareholders; they may as they consider appropriate
elect and remove officers and appoint and terminate agents and consultants
and hire and terminate employees, any one or more of the foregoing of whom
may be a Trustee, and may provide for the compensation of all of the
foregoing; they may appoint from their own number, and terminate, any one or
more committees consisting of two or more Trustees, including without implied
limitation an executive committee, which may, when the Trustees are not in
session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in accordance with
Section 3.3 they may employ one or more Advisers, Administrators,
Depositories and Custodians and may authorize any Depository or Custodian to
employ subcustodians or agents and to deposit all or any part of such assets
in a system or systems for the central handling of securities and debt
instruments, retain transfer, dividend, accounting or Shareholder servicing
agents or any of the foregoing, provide for the distribution of Shares by the
Fund through one or more distributors, principal underwriters or otherwise,
set record dates or times for the determination of Shareholders or various of
them with respect to various matters; they may compensate or provide for the
compensation of the Trustees, officers, advisers, administrators, custodians,
other agents, consultants and employees of the Fund or the Trustees on such
terms as they deem appropriate; and in general they may delegate to any
officer of the Fund, to any committee of the Trustees and to any employee,
adviser, administrator, distributor, depository, custodian, transfer and
dividend disbursing agent, or any other agent or consultant of the Fund such
authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of the business and affairs of the Fund,
including without implied limitation the power and authority to act in the
name of the Fund and of the Trustees, to sign documents and to act as
attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with
the 1940 Act or other applicable law, the Trustees shall have power and
authority:
(a) INVESTMENTS. To invest and reinvest cash and other property, and to
hold cash or other property uninvested without in any event being
bound or limited by any present or future law or custom in regard to
investments by trustees:
(b) DISPOSITION OF ASSETS. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of
the Fund:
(c) OWNERSHIP POWERS. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt
instruments or property; and to execute and deliver proxies or powers
of attorney to such person or persons as the Trustees shall deem
proper, granting to such person or persons such power and discretion
with relation to securities, debt instruments or property as the
Trustees shall deem proper;
(d) SUBSCRIPTION. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or
debt instruments:
(e) FORM OF HOLDING. To hold any security, debt instrument or property
in a form not indicating any trust, whether in bearer, unregistered
or other negotiable form, or in the name of the Trustees or of the
Fund or in the name of a custodian, subcustodian or other depository
or a nominee or nominees or otherwise:
(f) REORGANIZATION, ETC. To consent to or participate in any plan for
the reorganization, consolidation or merger of any corporation or
issuer, any security or debt instrument of which is or was held in
the Fund; to consent to any contract, lease, mortgage, purchase or
sale of property by such corporation or issuer, and to pay calls or
subscriptions with respect to any security or debt instrument held in
the Fund;
(g) VOTING TRUSTS, ETC. To join with other holders of any securities or
debt instruments in acting through a committee, depository, voting
trustee or otherwise, and in that connection to deposit any security
or debt instrument with, or transfer any security or debt instrument
to, any such committee, depository or trustee, and to delegate to
them such power and authority with relation to any security or debt
instrument (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee,
depository or trustee as the Trustees shall deem proper;
(g) COMPROMISE. To compromise, arbitrate or otherwise adjust claims in
favor of or against the Fund or any matter in controversy, including
but not limited to claims for taxes;
(i) PARTNERSHIPS, ETC. To enter into joint ventures, general or limited
partnerships and any other combinations or associations.
(j) BORROWING AND SECURITY. To borrow funds and to mortgage and pledge
the assets of the Fund or any part thereof to secure obligations
arising in connection with such borrowing;
(k) GUARANTEES, ETC. To endorse or guarantee the payment of any notes or
other obligations of any person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof; and to
mortgage and pledge the Fund property or any part thereof to secure
any of or all such obligations:
(l) INSURANCE. To purchase and pay for entirely out of Fund property
such insurance as they may deem necessary or appropriate for the
conduct of the business, including, without limitation, insurance
policies insuring the assets of the Fund and payment of distributions
and principal on its portfolio investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
consultants, investment advisers, managers, administrators,
distributors, principal underwriters, or independent contractors, or
any thereof (or any person connected therewith), of the Fund
individually against all claims and liabilities of every nature
arising by reason of holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or
omitted by any such person in any such capacity, including any action
taken or omitted that may be determined to constitute negligence;
provided, however, that insurance which protects the Trustees and
officers against liabilities rising from action involving willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of their offices may not be purchased;
and
(m) PENSIONS, ETC. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out
pension, profit-sharing, share bonus, share purchase, savings, thrift
and other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the
Fund.
Except as otherwise provided by the 1940 Act or other applicable law, this
Declaration of Trust or the By-Laws, any action to be taken by the Trustees
may be taken by a majority of the Trustees present at a meeting of Trustees
(a quorum, consisting of at least a majority of the Trustees then in office,
being present), within or without Ohio, including any meeting held by means
of a conference telephone or other communications equipment by means of which
all persons participating in the meeting can hear each other at the same time
and participation by such means shall constitute presence in person at a
meeting, or by written consents of a majority of the Trustees then in office
(or such larger or different number as may be required by the 1940 Act or
other applicable law).
SECTION 3.3 CERTAIN CONTRACTS. Subject to compliance with the provisions
of the 1940 Act, but notwithstanding any limitations of present and future
law or custom in regard to delegation of powers by trustees generally, the
Trustees may, at any time and from time to time and without limiting the
generality of their powers and authority otherwise set forth herein, enter
into one or more contracts with any one or more corporations, trusts,
associations, partnerships, limited partnerships, other type of organizations,
or individuals ("Contracting Party") to provide for the performance and
assumption of some or all of the following services, duties and
responsibilities to, for or of the Fund and/or the Trustees, and to provide
for the performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees may
determine appropriate:
(a) ADVISORY. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect to the
investments of the Fund, to manage such investments and assets, make
investment decisions with respect thereto, and to place purchase and
sale orders for portfolio transactions relating to such investments
and assets;
(b) ADMINISTRATION. Subject to the general supervision of the Trustees
and in conformity with any policies of the Trustees with respect to
the operations of the Fund, to supervise all or any part of the
operations of the Fund, and to provide all or any part of the
administrative and clerical personnel, office space and office
equipment and services appropriate for the efficient administration
and operations of the Fund:
(c) DISTRIBUTION. To distribute the Shares of the Fund, to be principal
underwriter of such Shares, and/or to act as agent of the Fund in the
sale of Shares and the acceptance or rejection of orders for the
purchase of Shares;
(d) CUSTODIAN AND DEPOSITORY. To act as depository for and to maintain
custody of the property of the Fund and accounting records in
connection therewith;
(e) TRANSFER AND DIVIDEND DISBURSING AGENCY. To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the
transfer thereof, and to disburse any dividends declared by the
Trustees and in accordance with the policies of the Trustees and/or
the instructions of any particular Shareholder to reinvest any such
dividends;
(f) SHAREHOLDER SERVICING. To provide service with respect to the
relationship of the Fund and its Shareholders, records with respect
to Shareholders and their Shares, and similar matters; and
(g) ACCOUNTING. To handle all or any part of the accounting
responsibilities, whether with respect to the Fund's properties,
Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Fund and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or
in addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940
Act relating to the standard of duty of and the rights to indemnification of
the Contracting Party and others, as the Trustees may determine. Nothing
herein shall preclude, prevent or limit the Fund or a Contracting Party from
entering into subcontractual arrangements relative to any of the matters
referred to in Sections 3.3(a) through (q) hereof.
Subject to the provisions of the 1940 Act, the fact
that:
(i) any of the Shareholders, Trustees or officers of the Fund is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any
Contracting Party or that the Contracting Party or any parent or
affiliate thereof is a Shareholder or has an interest in the Fund, or
that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or has other business or interests,
shall not affect the validity of any contract for the performance and
assumption of services, duties and responsibilities to, for or of the Fund
and/or the Trustees or disqualify any Shareholder, Trustee or officer of the
Fund from voting upon or executing the same or create any liability or
accountability to the Fund or its Shareholders, provided that in the case of
any relationship or interest referred to in the preceding clause (i) on the
part of any Trustee or officer of the Fund either (1) the material facts as
to such relationship or interest have been disclosed to or are known by the
Trustees not having any such relationship or interest and the contract
involved is approved in good faith by a majority of such Trustees not having
any such relationship or interest (even though such unrelated or
disinterested Trustees are less than a quorum of all of the Trustees), (2)
the material facts as to such relationship or interest and as to the contract
have been disclosed to or are known by the Shareholders entitled to vote
thereon and the contract involved is specifically approved in good faith by
vote of the Shareholders, or (3) the specific contract involved is fair to
the Fund as of the time it is authorized, approved or ratified by the
Trustees or by the Shareholders.
SECTION 3.4 PAYMENT OF FUND EXPENSES AND COMPENSATION OF TRUSTEES. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Fund, or partly out of principal and partly out of income, as
the Trustees deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Fund, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses and charges for the services of the Fund's officers,
employees, investment adviser, administrator, distributor, principal
underwriter, auditor, counsel, depository, custodian, transfer agent,
dividend disbursing agent, accounting agent, Shareholder servicing agent, and
such other agents, consultants and independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Without limiting the generality of any other provision hereof, the Trustees
shall be entitled to reasonable compensation from the Fund for their services
as Trustees and may fix the amount of such compensation.
SECTION 3.5 OWNERSHIP OF ASSETS OF THE FUND. Title to all of the assets
of the Fund shall at all times be considered as vested in the Trustees.
ARTICLE IV
SHARES
SECTION 4.1 DESCRIPTION OF SHARES. The beneficial interest in the Fund
shall be divided into Shares, all without par value and of one class.
The number of authorized Shares that may be issued is unlimited, and the
Trustees may issue Shares for such consideration and on such terms as they
may determine (or for no consideration if pursuant to a Share dividend or
split-up), all without action or approval of the Shareholders. All Shares
when so issued on the terms determined by the Trustees shall be fully paid
and non-assessable. The Trustees may hold as treasury Shares, reissue for
such consideration and on such terms as they may determine, or cancel, at
their discretion from time to time, any Shares re-acquired by the Fund.
The Trustees may from time to time close the transfer books or establish
record dates and times for the purposes of determining the holders of Shares
entitled to be treated as such, to the extent provided or referred to in
Section 5.3.
Any Trustee, officer or other agent of the Fund, and any organization in
which any such person is interested may acquire, own, hold and dispose of
Shares of the Fund to the
same extent as if such person were not a Trustee, officer or other agent of
the Fund; and the Fund may issue and sell or cause to be issued and sold and
may purchase Shares from any such person or any such organization.
SECTION 4.2 TERMS OF SHARES. The Shares shall have the following terms:
(a) DIVIDENDS. Dividends and distributions on Shares may be paid with
such frequency as the Trustees may determine, which may be daily or
otherwise pursuant to a standing resolution or resolutions adopted
only once or with such frequency as the Trustees may determine, to
the holders of Shares, from such of the income and capital gains,
accrued or realized, as the Trustees may determine, after providing
for actual and accrued liabilities. All dividends and distributions
on Shares shall be distributed pro rata to the holders in proportion
to the number of Shares held by such holders at the date and time of
record established for the payment of such dividends or
distributions, except that in connection with any dividend or
distribution program or procedure the Trustees may determine that no
dividend or distribution shall be payable on Shares as to which the
Shareholder's purchase order and/or payment have not been received by
the time or times established by the Trustees under such program or
procedure. Such dividends and distributions may be made in cash or
Shares or a combination thereof as determined by the Trustees or
pursuant to any program that the Trustees may have in effect at the
time for the election by each Shareholder of the mode of the making
of such dividend or distribution to that Shareholder. Any such
dividend or distribution paid in Shares will be paid at the net asset
value thereof as determined in accordance with subsection (f) of
Section 4.2.
The Fund intends 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.
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 Fund, the Board of Trustees shall have the power, in its
sole discretion, to distribute in any fiscal year as dividends,
including dividends designated in whole or in part as capital gains
distributions, amounts sufficient, in the opinion
of the Board of Trustees, to enable the Fund to qualify as a regulated
investment company and to avoid liability of the Fund for federal
income tax in respect of that year. However, nothing in the foregoing
shall limit the authority of the Board of Trustees to make
distributions greater than or less than the amount necessary to
qualify as a regulated investment company and to avoid liability of
the Fund for such tax.
(b) LIQUIDATION. In event of the liquidation or dissolution of the Fund,
the Shareholders shall be entitled to receive when and as declared by
the Trustees, the excess of the assets of the Fund over the
liabilities of the Fund. The assets so distributable to the
Shareholders shall be distributed among such Shareholders in
proportion to the number of Shares held by them and recorded on the
books of the Fund. The liquidation of the Fund may be authorized by
vote of a majority of the Trustees then in office subject to the
approval of a majority of the outstanding voting Shares, as defined
in the 1940 Act.
(c) VOTING. All Shares shall have "equal voting rights" as such term is
defined in the Investment Company Act of 1940 and except as otherwise
provided by that Act or rules, regulations or orders promulgated
thereunder. On each matter submitted to a vote of the Shareholders,
all Shares shall vote as a single class ("Single Class Voting").
(d) REDEMPTION BY SHAREHOLDER. Each holder of Shares shall have the
right at such times as may be permitted by the Fund, but no less
frequently than once each week, to require the Fund to redeem all or
any part of his Shares at a redemption price equal to the net asset
value per Share next determined in accordance with subsection (f) of
this Section 4.2 after the Shares are properly tendered for
redemption. Payment of the redemption price shall be in cash;
provided, however, that if the Trustees determine, which
determination shall be conclusive, that conditions exist which make
payment wholly in cash unwise or undesirable, the Fund may make
payment wholly or partly in securities or other assets of the Fund at
the value of such securities or assets used in such determination of
net asset value.,
Notwithstanding the foregoing, the Fund may postpone payment of the
redemption price and may suspend the right of the holders of Shares
to require the Fund to redeem Shares during any period or at any
time when and to the extent permissible under the 1940 Act, and such
redemption is conditioned upon the Fund having funds or property
legally available therefor
(e) REDEMPTION BY FUND. Each Share is subject to redemption by the Fund
at the redemption price which would be applicable if such Share was
then being redeemed by the Shareholder pursuant to subsection (d) of
this Section 4.2: (a) at any time, if the Trustees determine in their
sole discretion that failure to so redeem may have materially adverse
consequences to all or any of the holders of the Shares of the Fund,
or (b) upon such other conditions as may from time to time be
determined by the Trustees and set forth in the then current
Prospectus of the Fund with respect to maintenance of Shareholder
accounts of a minimum amount. Upon such redemption the holders of the
Shares so redeemed shall have no further right with respect thereto
other than to receive payment of such redemption price.
(f) NET ASSET VALUE. The net asset value per Share shall be the quotient
obtained by dividing the value of the net assets of the Fund (being
the value of the assets of the Fund less the liabilities of the Fund)
by the total number of Shares outstanding, all determined in
accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the
Trustees from time to time.
(g) TRANSFER. All Shares shall be transferable, but transfers of Shares
will be recorded on the Share transfer records of the Fund only at
such times as Shareholders shall have the right to require the Fund
to redeem Shares and at such other times as may be permitted by the
Trustees.
(h) FRACTIONS. Any fractional Share, if any such fractional Share is
outstanding, shall carry proportionately all the rights and
obligations of a whole Share, including with respect to voting,
receipt of dividends and distributions, redemption of Shares, and
liquidation of the Fund.
SECTION 4.3 OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Fund or of a transfer or similar agent for the
Fund. No certificates certifying the ownership of Shares need be issued
except as the Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the issuance of
Share certificates, the use of facsimile signatures, the transfer of Shares
and similar matters. The record books of the Fund as kept by the Fund or any
transfer or similar agent, as the case may be, shall be conclusive as to who
are the Shareholders and as to the number of Shares held from time to time by
each such Shareholder.
SECTION 4.4 INVESTMENTS IN THE FUND. The Trustees may accept investments
in the Fund from such persons and on such terms and for such consideration,
not inconsistent with the provisions of the 1940 Act, as they from time to
time authorize. The Trustees may authorize any distributor, principal
underwriter, custodian, transfer agent or other person to accept orders for
the purchase of Shares that conform to such authorized terms and to reject
any purchase orders for Shares whether or not conforming to such authorized
terms.
SECTION 4.5 NO PREEMPTIVE RIGHTS. Shareholder shall have no preemptive
or other right to subscribe to any additional Shares or other securities
issued by the Fund.
SECTION 4.6 STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights
provided in this instrument. Every Shareholder by virtue of having become a
Shareholder shall be held to have expressly assented and agreed to the terms
hereof and to have become a party hereto. The death of a Shareholder during
the continuance of the Fund shall not operate to terminate the Fund nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Fund or the Trustees, but
only to the rights of said decedent under this Declaration of Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to
the whole or any part of the Fund property or right to call for a partition
or division of the same or for an accounting, nor shall the ownership of
Shares constitute the Shareholders partners. Neither the Fund nor the
Trustees, nor any officer, employee or agent of the Fund shall have any power
to bind personally any Shareholder, nor except as specifically provided
herein to call upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 5.1 VOTING POWERS. The Shareholders shall have
power to vote only (i) for the election or removal of Trustees as provided in
Section 3.1, (ii) with respect to any contract with a Contracting Party as
provided in Section 3.3 as to which Shareholder approval is required by the
1940 Act, (iii) with respect to any termination or reorganization of the Fund
to the extent and as provided in Sections 7.1 and 7.2, (iv) with respect to
any amendment of this Declaration of Trust to the extent and as provided in
Section 7.3, (v) to the same extent as the stockholders of an Ohio
corporation for profit as to whether or not a court action, proceeding or
claim should or should not be brought or maintained derivatively or as a
class action on behalf of the Fund or the Shareholders, and (vi) with respect
to such additional matters relating to the Fund as may be required by the
1940 Act, this Declaration of Trust, the By-Laws or any registration of the
Fund with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. There shall be no cumulative
voting in the election of any Trustee or Trustees. Shares may be voted in
person or by proxy. A proxy with respect to Shares may be voted in person or
by proxy. A proxy with respect to Shares held in the name of two or more
persons shall be valid if executed by any one of them unless at or prior to
exercise of the proxy the Fund receives a specific written notice to the
contrary from any one of them. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior
to its exercise and the burden of proving invalidity shall rest on the
challenger. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of
Trust or the By-Laws to be taken by Shareholders.
SECTION 5.2 MEETINGS. There shall be an annual meeting of Shareholders
at such place within or without the State of Ohio and on such date as may be
designated in the call thereof, which call shall be made by the Trustees. In
the event that such meeting is not held in any year, whether the omission be
by oversight or otherwise, a subsequent special meeting may be called by the
Trustees and held in lieu of the annual meeting with the same effect as
though held within such time period. Special meetings may also be called by
the Trustees from time to time for the purpose of taking action upon any
matter requiring the vote or authority of the Shareholders as herein provided
or upon any other matter deemed by the Trustees to be necessary or desirable.
Written notice of any such meeting shall be given or caused to be given by
the Trustees by mailing such notice at least seven days before such meeting,
postage prepaid, stating the time, place and purpose of the meeting, to each
Shareholder entitled to vote at such meeting at the Shareholder's address as
it appears on the records of the Fund. If the Trustees shall fail to call or
give notice of any meeting of Shareholders for a period of 30 days after
written request by Shareholders holding at least 25% of the Shares then
outstanding entitled to vote upon any matter requiring
action by the Shareholders as provided herein that a meeting be called to
consider such matter, then Shareholders holding at least 25% of the Shares
then outstanding may call and give notice of such meeting, and thereupon the
meeting shall be held in the manner provided for herein in case of call
thereof by the Trustees.
SECTION 5.3 RECORD DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any
adjournment thereof, or who are entitled to participate in any dividend or
distribution, or for the purpose of any other action, the Trustees may from
time to time close the transfer books for such period, not exceeding 30 days
(except at or in connection with the termination of the Fund), as the
Trustees may determine; or without closing the transfer books the Trustees
may fix a date and time not more than 60 days prior to the date of any
meeting of Shareholders or other action as the date and time of record for
the determination of Shareholders entitled to vote at such meeting or any
adjournment thereof or to be treated as Shareholders of record for purposes
of such other action, and any Shareholder who was a Shareholder at the date
and time so fixed shall be entitled to vote at such meeting or any
adjournment thereof or (subject to any provisions permissible under
subsection (a) of Section 4.2 with respect to dividends or distributions on
Shares that have not been ordered and/or paid for by the time or times
established by the Trustees under the applicable dividend or distribution
program or procedure then in effect) to be treated as a Shareholder of record
for purposes of such other action, even though he has since that date and
time disposed of his Shares, and no Shareholder becoming such after that date
and time shall be so entitled to vote at such meeting or any adjournment
thereof or to be treated as a Shareholder of record for purposes of such
other action.
SECTION 5.4 QUORUM AND REQUIRED VOTE. A majority of the
Shares entitled to vote shall be a quorum for the transaction of business at
a Shareholders' meeting, but any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held, within a
reasonable time after the date set for the original meeting without the
necessity of further notice. A majority of the Shares voted, at a meeting of
which a quorum is present, shall decide any questions and a plurality shall
elect a Trustee, except when a different vote is required or permitted by any
provision of the 1940 Act or other applicable law or by this Declaration of
Trust or the By-Laws.
SECTION 5.5 ACTION BY WRITTEN CONSENT. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be
taken without a meeting if a majority of Shareholders entitled to vote on the
matter (or such other proportion thereof as shall be required by the 1940 Act
or by any express provision of this Declaration of Trust or the By-Laws)
consent to the action in writing and such written consents are filed with the
records of the meetings of Shareholders. Such consent shall be treated for
all purposes as a vote taken at a meeting of Shareholders.
SECTION 5.6 INSPECTION OF RECORDS. The records of the Fund shall be open
to inspection by Shareholders to the same extent as is permitted stockholders
of an Ohio corporation for profit under the Ohio General Corporation Law.
SECTION 5.7 ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 6.1 TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLy
LIABLE; NOTICE. All persons extending credit to, contracting with or having
any claim against the Fund shall look only to the assets of the Fund for
payment under such credit, contract or claim; and neither the Shareholders
nor the Trustees, nor any of the Fund's officers, employees or agents,
whether past, present or future, shall be personally liable therefor. Every
note, bond, contract, instrument, certificate or undertaking and every other
act or thing whatsoever executed or done by or on behalf of the Fund or the
Trustees or any of them in connection with the Fund shall be conclusively
deemed to have been executed or done only by or for the Fund or the Trustees
and not personally. Nothing in this Declaration of Trust shall protect any
Trustee or officer against any liability to the Fund or the Shareholders to
which such Trustee or officer would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee or of such officer.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officers or officer shall give notice
that this Declaration of Trust is on file with the Secretary of the State of
Ohio and shall recite to the effect that the same was executed or made by or
on behalf of the Fund or by them as Trustees or Trustee or as officers or
officer and not individually and that the obligations of such instrument are
not binding upon any of them or the Shareholders individually but are binding
only upon the assets and property of the Fund, but the omission thereof shall
not operate to bind any Trustees or Trustee or officers or officer or
Shareholders or Shareholder individually.
SECTION 6.2 TRUSTEE'S GOOD FAITH ACTION; EXPERT ADVICE;
NO BOND OR SURETY. The exercise by the Trustees of their powers and
discretion's thereunder shall be binding upon everyone interested. A Trustee
shall be liable for his own willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment
or mistakes of fact or law. Subject to the foregoing, (a) the Trustees shall
not be responsible or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, consultant, adviser, administrator, distributor
or principal underwriter, custodian or transfer, dividend disbursing,
Shareholder servicing or accounting agent of the Fund, nor shall any Trustee
be responsible for the act or omission of any other Trustee; (b) the Trustees
may take advice of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust and their duties as Trustees, and
shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (c) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely
upon the books of account of the Fund and upon written reports made to the
Trustees by any officer appointed by them, any independent public accountant,
and (with respect to the subject matter of the contract involved) any
officer, partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 3.3. The Trustees as such shall not be
required to give any bond or surety or any other security for the performance
of their duties.
SECTION 6.3 INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder or
former Shareholder shall be charged or held to be personally liable for any
obligation or liability of the Fund solely by reason of being or having been
a Shareholder and not because of such Shareholder's acts or omissions or for
some other reason, the Fund (upon proper and timely request by the
Shareholder) shall assume the defense against such charge and satisfy any
judgment thereon, and the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives or in the case of a
corporation or other entity, its corporate or other general successor) shall
be entitled out of the assets of the Fund estate to be held harmless from and
indemnified against all loss and expense arising from such liability.
SECTION 6.4 INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. The Fund shall
indemnify each of its Trustees and officers (including persons who serve at
the Fund's request as directors, officers or trustees of another organization
in which the Fund has any interest as a shareholder, creditor or otherwise
(hereinafter referred to as a "Covered Person") against all liabilities,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person in connection
with the defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or legislative
body, in which such Covered Person may be or may have been involved as a
party or otherwise or with which such person may be or may have been
threatened, while in office or thereafter, by reason of being or having been
such a Trustee or officer, director or trustee, and except that no Covered
Person shall be indemnified against any liability to the Fund or its
Shareholders to which such Covered Person would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Person's
office ("disabling conduct"). Anything herein contained to the contrary
notwithstanding, no Covered Person shall be indemnified for any liability to
the Fund or its Shareholders to which such Covered Person would otherwise be
subject unless (1) a final decision on the merits is made by a court or other
body before whom the proceeding was brought that the Covered Person to be
indemnified was not liable by reason of disabling conduct or, (2) in the
absence of such a decision, a reasonable determination is made, based upon a
review of the facts, that the Covered Person 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 Fund as defined in the Investment
Company Act of 1940 nor parties to the proceeding ("disinterested, non-party
Trustees"), or (b) an independent legal counsel in a written opinion.
SECTION 6.5 ADVANCES OF EXPENSES. The Fund shall advance attorneys' fees
or other expenses incurred by a Covered Person in defending a proceeding,
upon the undertaking by or on behalf of the Covered Person to repay the
advance unless it is ultimately determined that such Covered Person is
entitled to indemnification, so long as one of the following conditions is
met: (i) the Covered Person shall provide security for his undertaking, (ii)
the Fund shall be insured against losses arising by reason of any lawful
advances, or (iii) a majority of a quorum of the disinterested non-party
Trustees of the Fund, or an independent legal counsel in a written opinion,
shall determine, based on a review of readily available facts (as opposed to
a full trial-type inquiry), that there is reason to believe that the Covered
Person ultimately will be found entitled to indemnification.
SECTION 6.6 INDEMNIFICATION MOT EXCLUSIVE, ETC. The right of
indemnification provided by this Article VI shall not be exclusive of or
affect any other rights to which any such Covered Person may be entitled. As
used in this Article VI, "Covered Person" shall include such person's heirs,
executors and administrators, an "interested Covered Person" is one against
whom the action, suit or other proceeding in question or another action, suit
or other proceeding on the same or similar grounds is then or has been
pending or threatened, and a "disinterested" person is a person against whom
none of such actions, suits or other proceedings or another action, suit or
other proceeding on the same or similar grounds is then or has been pending
or threatened. Nothing contained in this Article VI shall affect any rights
to indemnification to which personnel of the Fund, other than Trustees and
officers, and other persons may be entitled by contract or otherwise under
law, nor the power of the Fund to purchase and maintain liability insurance
on behalf of any such person.
SECTION 6.7 LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Fund or
upon its order.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 DURATION AND TERMINATION OF FUND. Unless terminated as
provided herein, the Fund shall continue without limitation of time. The Fund
may be terminated at any time by a majority of the Trustees then in office
subject to a favorable vote of a majority of the outstanding voting Shares,
as defined in the 1940 Act.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may
be determined by the Trustees, the Fund shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining assets
to distributable form in cash, securities or other property, or any
combination thereof, and distribute the proceeds to the Shareholders, in
conformity with the provisions of subsection (b) of Section 4.2.
SECTION 7.2 REORGANIZATION. The Trustees may sell, convey and transfer
the assets of the Fund to another trust, partnership, association or
corporation organized under the laws of any state of the United States, in
exchange for cash, shares or other securities with such transfer being made
subject to, or with the assumption by the transferee of, the liabilities of
the Fund; provided, however, that if shareholder approval is required by the
1940 Act, no assets of the Fund shall be so transferred unless the terms of
such transfer shall have first been approved at a meeting called for the
purpose by the affirmative vote of the holders of a majority of the
outstanding voting Shares, as defined in the 1940 Act. Following such
transfer, the Trustees shall distribute such cash, shares or other
securities among the Shareholders and the Fund shall be terminated.
SECTION 7.3 AMENDMENTS. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservation of the right
to amend this Declaration of Trust as herein provided, except that no
amendment shall repeal the limitations on personal liability of any
Shareholder or Trustee or repeal the prohibition of assessment upon the
Shareholders without the express consent of each Shareholder or Trustee
involved. Subject to the foregoing, the provisions of this Declaration of
Trust (whether or not related to the rights of Shareholders) may be amended
at any time by an instrument in writing signed by a majority of the then
Trustees (or by an officer of the Fund pursuant to the vote of a majority of
such Trustees), when authorized so to do by the vote, in accordance with
subsection (c) of Section 4.2, of Shareholders holding a majority of the
Shares entitled to vote, except that amendments having the purpose of
changing the name of the Fund or of supplying any omission, curing any
ambiguity or curing, correcting or supplementing any provision hereof which
is internally inconsistent with any other provision hereof or which is
defective or inconsistent with the 1940 Act or with the requirements of the
Internal Revenue Code and applicable regulations for the Fund's obtaining the
most favorable treatment thereunder available to regulated investment
companies, shall not require authorization by Shareholder vote. Subject to
the foregoing, any such amendment shall be effective as provided in the
instrument containing the terms of such amendment or, if there is no
provision therein with respect to effectiveness, upon the execution of such
instrument and of a certificate (which may be a part of such instrument)
executed by a Trustee or officer of the Fund to the effect that such
amendment has been duly adopted.
SECTION 7.4 FILING OF COPIES; REFERENCES; HEADINGS. The original or a
copy of this instrument and of each amendment hereto shall be kept at the
office of the Fund where it may be inspected by any Shareholder. An original
of this instrument and each amendment hereto, or a copy of this instrument
and of each amendment hereto certified as true and correct by a Trustee
before a Notary Public, shall be filed by the Fund with the Secretary
of the State of Ohio, together with the report required by Section 1746.04,
Ohio Revised Code. Anyone dealing with the Fund may rely on a certificate by
an officer of the Fund as to whether or not any such amendments have been
made, as to the identities of the Trustees and officers, and as to any
matters in connection with the Fund thereunder; and, with the same effect as
if it were the original, may rely on a copy certified by an officer of the
Fund to be a copy of this instrument or of any such amendments. In this
instrument and in any such amendment, references to this instrument, and all
expressions like "herein", "hereof" and "thereunder" shall be deemed to refer
to this instrument as a whole as the same may be amended or affected by any
such amendments. The masculine gender shall include the feminine and neuter
genders. Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. This instrument may be executed in
any number of counterparts each of which shall be deemed an original.
SECTION 7.5 APPLICABLE LAW. This Declaration of Trust is made in the
State of Ohio and it is created under and is governed by and construed and
administered according to the laws of said State, as the same may be amended
from time to time, to which reference is made with the intention that matters
not specifically covered herein or as to which an ambiguity may exist shall
be resolved as if the Fund were a corporation for profit organized in Ohio.
IN WITNESS WHEREOF. The undersigned have hereunto set their hands in the
City of Dayton, Ohio for themselves and their assigns, as of the day and year
first above Written.
/s/ LESLIE O. PARKER III
----------------------------
Leslie O. Parker III
/s/ RODERICK H. DILLON, JR.
----------------------------
Roderick H. Dillon, Jr.
/s/ KATHLEEN A. CARLSON
----------------------------
Kathleen A. Carlson
/s/ JAMES M. JOHNSON
----------------------------
James M. Johnson
/s/ DAVID A. BECHER
----------------------------
David A. Becher
/s/ J. NORMAN ECKSTEIN
----------------------------
J. Norman Eckstein
/s/ ROBERT C. SAMMONS
----------------------------
Robert C. Sammons
EX99.B1a
PDC&J PERFORMANCE FUND
AMENDMENT NO. 1 TO
DECLARATION OF TRUST
CERTIFICATE
The undersigned Secretary of PDC&J Performance Fund certifies that the
following resolutions were adopted by the Board of Trustees at a meeting held
on June 25, 1993, were approved by the shareholders at a meeting held on
August 20, 1993, and are in full force and effect:
"RESOLVED, that Section 3.1(c) of the Declaration of Trust be amended to read
as follows:
SECTION 3.1(C). TERM. Each Trustee shall serve as a Trustee during
the lifetime of the Fund and until its termination as hereinafter
provided, or until such Trustee sooner dies, resigns, retires or is
removed. The Trustees may elect their own successors and may, pursuant
to Section 3.1(f) hereof, appoint Trustees to fill vacancies.
FURTHER RESOLVED, that Section 3.1(e) of the Declaration of Trust be amended
to read as follows:
SECTION 3.1(E) REMOVAL. Any Trustee may be removed with or without
cause at any time (i) by written instrument, signed by at least two-
thirds of the number of Trustees prior to such removal, specifying the
date upon which such removal shall become effective, (ii) by vote of the
Shareholders holding not less than two-thirds of the Shares then
outstanding, cast in person or by proxy at any meeting called for the
purpose, or (iii) by a declaration in writing signed by Shareholders
holding not less than two-thirds of the Shares then outstanding and
filed with the Fund's Custodian.
FURTHER RESOLVED, that Section 5.2 of the Declaration of Trust be amended to
read as follows:
SECTION 5.2. MEETINGS. Meetings (including meetings involving only
the holders of Shares of one or more but less than all Series) of
Shareholders may be called by the Trustees from time to time for the
purpose of taking action upon any matter requiring the vote or authority
of the Shareholders as required by the provisions of the 1940 Act or as
herein provided or upon any other matter deemed by the Trustees to be
necessary or desirable. Written notice of any such meeting shall be
given or caused to be given by the Trustees by mailing such notice at
least seven days before such meeting, postage prepaid, stating the time,
place and purpose of the meeting, to each Shareholder entitled to vote
at such meeting at the Shareholder's address as it appears on the
records of the Fund. If the Trustees shall fail to call or give notice
of any meeting of Shareholders for a period of 30 days after written
request by Shareholders holding at least 25% of the Shares then
outstanding entitled to vote upon any matter requiring action by the
Shareholders as provided herein or in the By-Laws that a meeting be
called to consider such matter, then Shareholders holding at least 25%
of the Shares then outstanding may call and give notice of such meeting,
and thereupon the meeting shall be held in the manner provided for
herein in case of call thereof by the Trustees. "
FURTHER RESOLVED, that Section 1.2(c) of the Declaration of Trust be amended
to read as follows:
SECTION 1.2(C). "Share" or "Shares" refers to the transferable unit
or units of interest into which the beneficial interest in the Fund or
any Series of the Fund (as the context may require) shall be divided
from time to time;
FURTHER RESOLVED, that Section 1.2(i) of the Declaration of Trust be amended
to read as follows:
SECTION 1.2(I) "Series" refers to Series of Shares established and
designated under or in accordance with the provisions of Article IV;
FURTHER RESOLVED, that Section 3.3(a) of the Declaration of Trust be amended
to read as follows:
SECTION 3.3(A). ADVISORV. Subject to the general supervision of the
Trustees and in conformity with the stated policy of the Trustees with
respect to the investments of the Fund or of the assets belonging to any
Series of Shares of the Fund (as that phrase is defined in subsection
(a) of Section 4.2), to manage such investments and assets, make
investment decisions with respect thereto, and to place purchase and
sale orders for portfolio transactions relating to such investments and
assets;
FURTHER RESOLVED, that Section 3.4 of the Declaration of Trust be amended to
read as follows:
SECTION 3.4. PAVMENT OF FUND EXPENSES AND COMPENSATION OF TRUSTEES.
The Trustees are authorized to pay or to cause to be paid out of the
principal or income of the Fund, or partly out of principal and partly
out of income, and to charge or allocate the same to, between or among
such one or more of the Series and Sub-Series that may be established
and designated pursuant to Article IV, as the Trustees deem fair, all
expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Fund, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Fund's officers, employees,
investment adviser, administrator, distributor, principal underwriter,
auditor, counsel, depository, custodian, transfer agent, dividend
disbursing agent, accounting agent, Shareholder servicing agent, and
such other agents, consultants and independent contractors and such
other expenses and charges as the Trustees may deem necessary or proper
to incur. Without limiting the generality of any other provision hereof,
the Trustees shall be entitled to reasonable compensation from the Fund
for their services as Trustees and may fix the amount of such
compensation.
FURTHER RESOLVED, that Article IV of the Declaration of Trust be amended to
read as follows:
ARTICLE IV
SHARES
SECTION 4.1 DESCRIPTION OF SHARES. The beneficial interest in the
Fund shall be divided into Shares, all without par value and of one
class, but the Trustees shall have the authority from time to time to
divide the class of Shares into two or more Series of Shares (including
without limitation those Series specifically established and designated
in Section 4.2), as they deem necessary or desirable, to establish and
designate such Series, and to fix and determine the relative rights and
preferences as between the different Series of Shares as to right of
redemption and the price, terms and manner of redemption, special and
relative rights as to dividends and other distributions and on
liquidation, sinking or purchase fund provisions, conversion rights, and
conditions under which the several Series shall have separate voting
rights or no voting rights. Except as aforesaid all Shares of the
different Series shall be identical.
The Shares of each Series may be issued or reissued from time to
time in one or more sub-series ("Sub-Series"), as determined by the
Board of Trustees pursuant to resolution. Each Sub-Series shall be
appropriately designated, prior to the issuance of any shares thereof,
by some distinguishing letter, number or title. All Shares within a Sub-
Series shall be alike in every particular. All Shares of each Series
shall be of equal rank and have the same powers, preferences and rights,
and shall be subject to the same qualifications, limitations and
restrictions without distinction between the shares of different Sub-
Series thereof, except with respect to such differences among such Sub-
Series, as the Board of Trustees shall from time to time determine to be
necessary or desirable, including differences in the rate or rates of
dividends or distributions. The Board of Trustees may from time to time
increase the number of Shares allocated to any Sub-Series already
created by providing that any unissued Shares of the applicable Series
shall constitute part of such Sub-Series, or may decrease the number of
Shares allocated to any Sub-Series already created by providing that any
unissued Shares previously assigned to such Sub-Series shall no longer
constitute part thereof. The Board of Trustees is hereby empowered to
classify or reclassify from time to time any unissued Shares of each
Series by fixing or altering the terms thereof and by assigning such
unissued shares to an existing or newly created Sub-Series.
Notwithstanding anything to the contrary in this paragraph the Board of
Trustees is hereby empowered (i) to redesignate any issued Shares of any
Series by assigning a distinguishing letter, number or title to such
shares and (ii) to reclassify all or any part of the issued Shares of
any Series to make them part of an existing or newly created Sub-Series.
The number of authorized Shares and the number of Shares of each
Series that may be issued is unlimited, and the Trustees may issue
Shares of any Series for such consideration and on such terms as they
may determine (or for no consideration if pursuant to a Share dividend
or split-up), all without action or approval of the Shareholders. All
Shares when so issued on the terms determined by the Trustees shall be
fully paid and non-assessable (but may be subject to mandatory
contribution back to the Fund as provided in subsection (h) of Section
4.2). The Trustees may classify or reclassify any unissued Shares or any
Shares previously issued and reacquired of any Series into one or more
Series that may be established and designated from time to time. The
Trustees may hold as treasury Shares (of the same or some other Series),
reissue for such consideration and on such terms as they may determine,
or cancel, at their discretion from time to time, any Shares of any
Series reacquired by the Fund.
The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the
holders of Shares entitled to be treated as such, to the extent provided
or referred to in Section 5.3.
The establishment and designation of any Series of Shares in
addition to those established and designated in Section 4.2, or of any
Sub-Series of Shares, shall be effective upon the execution by a
majority of the then Trustees of an instrument setting forth such
establishment and designation and the relative rights and preferences of
such Series or Sub-Series, or as otherwise provided in such instrument.
At any time that there are no Shares outstanding of any particular
Series or Sub-Series previously established and designated the Trustees
may by an instrument executed by a majority of their number abolish that
Series or Sub-Series and the establishment and designation thereof. Each
instrument referred to in this paragraph shall have the status of an
amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Fund, and any
organization in which any such person is interested may acquire, own,
hold and dispose of Shares of any Series of the Fund to the same extent
as if such person were not a Trustee, officer or other agent of the
Fund; and the Fund may issue and sell or cause to be issued and sold and
may purchase Shares of any Series from any such person or any such
organization subject only to the general limitations, restrictions or
other provisions applicable to the sale or purchase of Shares of such
Series generally.
SECTION 4.2 ESTABLISHMENT AND DESIGNATION OF SERIES. Without
limiting the authority of the Trustees set forth in Section 4.1 to
establish and designate any further Series, the Trustees hereby
establish and designate two Series of Shares: the "Analysts Stock Fund"
and the "Analysts Fixed Income Fund". The Shares of these Series and any
Shares of any further Series that may from time to time be established
and designated by the Trustees shall (unless the Trustees otherwise
determine with respect to some further Series or Sub-Series at the time
of establishing and designating the same) have the following relative
rights and preferences:
(a) ASSETS BELONGING TO SERIES. All consideration received by the
Fund for the issuance or sale of Shares of a particular
Series, together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably belong to
that Series for all purposes, subject only to the rights of
creditors, and shall be so recorded upon the books of account
of the Fund. Such consideration, assets, income, earnings,
profits and proceeds thereof, including any proceeds derived
from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, together with any
General Items allocated to that Series as provided in the
following sentence, are herein referred to as "assets
belonging to" that Series. In the event that there are any
assets, income, earnings, profits, and proceeds thereof,
funds, or payments which are not readily identifiable as
belonging to any particular Series (collectively "General
Items"), the Trustees shall allocate such General Items to and
among any one or more of the Series established and designated
from time to time in such manner and on such basis as they, in
their sole discretion, deem fair and equitable; and any
General Items so allocated to a particular Series shall belong
to that Series. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Series for
all purposes.
The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall
be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding
upon the Shareholders.
(b) LIABILITIES BELONGING TO SERIES. The assets belonging to each
particular Series and Sub-Series thereof shall be charged with
the liabilities of the Fund in respect of that Series or Sub-
Series and all expenses, costs, charges and reserves
attributable to that Series or Sub-Series, and any general
liabilities, expenses, costs, charges or reserves of the Fund
which are not readily identifiable as belonging to any
particular Series shall be allocated and charged by the
Trustees to and among any one or more of the Series and Sub-
Series established and designated from time to time in such
manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. The liabilities, expenses,
costs, charges and reserves allocated and so charged to a
Series or Sub-Series are herein referred to as "liabilities
belonging to" that Series or Sub-Series. Each allocation of
liabilities, expenses, costs, charges and reserves by the
Trustees shall be conclusive and binding upon the Shareholders
of all Series for all purposes.
(c) DIVIDENDS. Dividends and distributions on Shares of a
particular Series may be paid with such frequency as the
Trustees may determine, which may be daily or otherwise
pursuant to a standing resolution or resolutions adopted only
once or with such frequency as the Trustees may determine, to
the holders of Shares of that Series, from such of the
estimated income and capital gains, accrued or realized, from
the assets belonging to that Series, as the Trustees may
determine, after providing for actual and accrued liabilities
belonging to that Series. All dividends and distributions on
Shares of a particular Series shall be distributed pro rata to
the holders of that Series in proportion to the number of
Shares of that Series held by such holders at the date and
time of record established for the payment of such dividends
or distributions, except that in connection with any dividend
or distribution program or procedure the Trustees may
determine that no dividend or distribution shall be payable on
Shares as to which the Shareholder's purchase order and/or
payment have not been received by the time or times
established by the Trustees under such program or procedure,
and except that if Sub-Series have been established for any
Series, the rate of dividends or distributions may vary among
such Sub-Series pursuant to resolution, which may be a
standing resolution, of the Board of Trustees. Such
dividends and distributions may be made in cash or Shares or a
combination thereof as determined by the Trustees or pursuant
to any program that the Trustees may have in effect at the
time for the election by each Shareholderof the mode of the
making of such dividend or distribution to that Shareholder.
Any such dividend or distribution paid in Shares will be paid
at the net asset value thereof as determined in accordance
with subsection (h) of Section 4.2.
The Fund intends to qualify each Series as a "regulated
investment company" under the Internal Revenue Code of 1986,
as amended, or any successor or comparable statute thereto,
and regulations promulgated thereunder. Inasmuch as the
computation of net income and gains for federal income tax
purposes may vary from the computation thereof on the books of
the Fund, the Board of Trustees shall have the power, in its
sole discretion, to distribute in any fiscal year as
dividends, including dividends designated in whole or in part
as capital gains distributions, amounts sufficient, in the
opinion of the Board of Trustees, to enable each Series to
qualify as a regulated investment company and to avoid
liability of the Series for federal income tax in respect of
that year. However, nothing in the foregoing shall limit the
authority of the Board of Trustees to make distributions
greater than or less than the amount necessary to qualify as a
regulated investment company and to avoid liability of each
Series for such tax.
(d) LIQUIDATION. In event of the liquidation or dissolution of the
Fund, the Shareholders of each Series or Sub-Series that has
been established and designated shall be entitled to receive,
as a Series or Sub-Series, when and as declared by the
Trustees, the excess of the assets belonging to that Series or
Sub-Series over the liabilities belonging to that Series or
Sub-Series. The assets so distributable to the Shareholders of
any particular Series or Sub-Series shall be distributed among
such Shareholders in proportion to the number of Shares of
that Series or Sub-Series held by them and recorded on the
books of the Fund. The liquidation of any particular Series or
Sub Series may be authorized by vote of a majority of the
Trustees then in office subject to the approval of a majority
of the Outstanding voting Shares of that Series or Sub-Series,
as defined in the 1940 Act.
(e) VOTING. All shares of all Series shall have "equal voting
rights" as such term is defined in the Investment Company Act
of 1940 and except as otherwise provided by that Act or rules,
regulations or orders promulgated thereunder. On each matter
submitted to a vote of the Shareholders, each Series shall
vote as a separate series except as to any matter with respect
to which a vote of all Series voting as a single series is
required by the 1940 Act or rules and regulations promulgated
thereunder, or would be required under the Ohio General
Corporation Law if the Fund were an Ohio corporation. As to
any matter which does not affect the interest of a particular
Series or Sub-Series, only the holders of Shares of the one or
more affected Series or Sub-Series shall be entitled to vote.
(f) REDEMPTION BY SHAREHOLDER. Each holder of Shares of a
particular Series shall have the right at such times as may be
permitted by the Fund, but no less frequently than once each
week, to require the Fund to redeem all or any part of his
Shares of that Series at a redemption price equal to the net
asset value per Share of that Series next determined in
accordance with subsection (h) of this Section 4.2 after the
Shares are properly tendered for redemption. Payment of the
redemption price shall be in cash; provided, however, that if
the Trustees determine, which determination shall be
conclusive, that conditions exist which make payment wholly in
cash unwise or undesirable, the Fund may make payment wholly
or partly in securities or other assets belonging to the
Series of which the Shares being redeemed are part at the
value of such securities or assets used in such determination
of net asset value.
Notwithstanding the foregoing, the Fund may postpone payment
of the redemption price and may suspend the right of the
holders of Shares of any Series to require the Fund to redeem
Shares of that Series during any period or at any time when
and to the extent permissible under the 1940 Act, and such
redemption is conditioned upon the Fund having funds or
property legally available therefor.
(g) REDEMPTION BY FUND. Each Share of each Series that has been
established and designated is subject to redemption by the
Fund at the redemption price which would be applicable if such
Share was then being redeemed by the Shareholder pursuant to
subsection (f) of this Section 4.2:(a) at any time, if the
Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to all or any
of the holders of the Shares, or any Series thereof, of the
Fund, or (b) upon such other conditions as may from time to
time be determined by the Trustees and set forth in the then
current Prospectus of the Fund with respect to maintenance of
Shareholder accounts of a minimum amount. Upon such redemption
the holders of the Shares so redeemed shall have no further
right with respect thereto other than to receive payment of
such redemption price.
(h) NET ASSET VALUE. The net asset value per Share of any Series
or Sub-Series shall be the quotient obtained by dividing the
value of the net assets of that Series or Sub-Series (being
the value of the assets belonging to that Series or Sub-Series
less the liabilities belonging to that Series or Sub-Series)
by the total number of Shares of that Series or Sub-Series
outstanding, all determined in accordance with the methods and
procedures, including without limitation those with respect to
rounding, established by the Trustees from time to time.
The Trustees may determine to maintain the net asset value per
Share of any Series at a designated constant dollar amount and
in connection therewith may adopt procedures not inconsistent
with the 1940 Act for the continuing declarations of income
attributable to that Series as dividends payable in additional
Shares of that Series at the designated constant dollar amount
and for the handling of any losses attributable to that
Series. Such procedures may provide that in the event of any
loss each Shareholder shall be deemed to have contributed to
the capital of the Fund attributable to that Series his pro
rata portion of the total number of Shares required to be
cancelled in order to permit the net asset value per Share of
that Series to be maintained, after reflecting such loss, at
the designated constant dollar amount. Each Shareholder of the
Fund shall be deemed to have agreed, by his investment in any
Series with respect to which the Trustees shall have adopted
any such procedure, to make the contribution referred to in
the preceding sentence in the event of any such loss.
(i) TRANSFER. All Shares of each particular Series shall be
transferable, but transfers of Shares of a particular Series
will be recorded on the Share transfer records of the Fund
applicable to that Series only at such times as Shareholders
shall have the right to require the Fund to redeem Shares of
that Series and at such other times as may be permitted by the
Trustees.
(j) EQUALITY. All Shares of each particular Series shall represent
an equal proportionate interest in the assets belonging to
that Series (subject to the liabilities belonging to that
Series), and each Share of any particular Series shall be
equal to each other Share of that Series; but the provisions
of this sentence shall not restrict any distinctions
permissible under this Section 4.2 that may exist with respect
to Sub-Series of the same Series. The Trustees may from time
to time divide or combine the Shares of any particular Series
into a greater or lesser number of Shares of that Series
without thereby changing the proportionate beneficial interest
in the assets belonging to that Series or in any way affecting
the rights of Shares of any other Series.
(k) FRACTIONS. Any fractional Share of any Series or Sub-Series,
if any such fractional Share is outstanding, shall carry
proportionately all the rights and obligations of a whole
Share of that Series or Sub-Series, including with respect to
voting, receipt of dividends and distributions, redemption of
Shares, and liquidation of the Fund.
(l) CONVERSION RIGHTS. Subject to compliance with the requirements
of the 1940 Act, the Trustees shall have the authority to
provide that holders of Shares of any Series shall have the
right to convert said Shares into Shares of one or more other
Series of Shares in accordance with such requirements and
procedures as may be established by the Trustees.
SECTION 4.3 OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Fund or of a transfer or similar agent for
the Fund, which books shall be maintained separately for the Shares of
each Series that has been established and designated. No certificates
certifying the ownership of Shares need be issued except as the Trustees
may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the issuance of Share
certificates, the use of facsimile signatures, the transfer of Shares
and similar matters. The record books of the Fund as kept by the Fund or
any transfer or similar agent, as the case may be, shall be conclusive
as to who are the Shareholders and as to the number of Shares of each
Series and Sub-Series held from time to time by each such Shareholder.
SECTION 4.4 INVESTMENTS IN THE FUND. The Trustees may accept
investments in the Fund from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as
they from time to time authorize. The Trustees may authorize any
distributor, principal underwriter, custodian, transfer agent or other
person to accept orders for the purchase of Shares that conform to such
authorized terms and to reject any purchase orders for Shares whether or
not conforming to such authorized terms.
SECTION 4.5 NO PREEMPTIVE RIGHTS. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Fund.
SECTION 4.6 STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights
provided in this instrument. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and agreed
to the terms hereof and to have become a party hereto. The death of a
Shareholder during the continuance of the Fund shall not operate to
terminate the Fund nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere
against the Fund or the Trustees, but only to the rights of said
decedent under this Fund. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Fund
property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the
Shareholders partners. Neither the Fund nor the Trustees, nor any
officer, employee or agent of the Fund shall have any power to bind
personally any Shareholder, nor except as specifically provided herein
to call upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
FURTHER RESOLVED, that Section 5.1 of the Declaration of Trust be amended to
read as follows:
SECTION 5.1. VOTING POWERS. The Shareholders shall have power to
vote only (i) for the election or removal of Trustees as provided in
Section 3.1, (ii) with respect to any contract with a Contracting Party
as provided in Section 3.3 as to which Shareholder approval is required
by the 1940 Act, (iii) with respect to any termination or reorganization
of the Fund or any Series to the extent and as provided in Sections 7.1
and 7.2, (iv) with respect to any amendment of this Declaration of Trust
to the extent and as provided in Section 7.3, (v) to the same extent as
the stockholders of an Ohio-corporation for profit as to whether or not
a court action, proceeding or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Fund or
the Shareholders, and (vi) with respect to such additional matters
relating to the Fund as may be required by the 1940 Act, this
Declaration of Trust, the By-Laws or any registration of the Fund with
the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. There shall be no
cumulative voting in the election of any Trustee or Trustees. Shares may
be voted in person or by proxy. A proxy with respect to Shares may be
voted in person or by proxy. A proxy with respect to Shares held in the
name of two or more persons shall be valid if executed by any one of
them unless at or prior to exercise of the proxy the Fund receives a
specific written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger. Until Shares
are issued, the Trustees may exercise all rights of Shareholders and may
take any action required by law, this Declaration of Trust or the By-
Laws to be taken by Shareholders.
FURTHER RESOLVED, that Section 5.3 of the Declaration of Trust be amended to
read as follows:
SECTION 5.3. RECORD DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any
adjournment thereof, or who are entitled to participate in any dividend
or distribution, or for the purpose of any other action, the Trustees
may from time to time close the transfer books for such period, not
exceeding 30 days (except at or in connection with the termination of
the Fund), as the Trustees may determine; or without closing the
transfer books the Trustees may f~x a date and time not more than 60
days prior to the date of any meeting of Shareholders or other action as
the date and time of record for the determination of Shareholders
entitled to vote at such meeting or any adjournment thereof or to be
treated as Shareholders of record for purposes of such other action, and
any Shareholder who was a Shareholder at the date and time so fixed
shall be entitled to vote at such meeting or any adjournment thereof or
(subject to any provisions permissible under subsection (c) of Section
4.2 with respect to dividends or distributions on Shares that have not
been ordered and/or paid for by the time or times established by the
Trustees under the applicable dividend or distribution program or
procedure then in effect) to be treated as a Shareholder of record for
purposes of such other action, even though he has since that date and
time disposed of his Shares, and no Shareholder becoming such after that
date and time shall be so entitled to vote at such meeting or any
adjournment thereof or to be treated as a Shareholder of record for
purposes of such other action.
FURTHER RESOLVED, that Section 5.4 of the Declaration of Trust be amended to
read as follows:
SECTION 5.4. QUORUM AND REQUIRED VOTE. A majority of the Shares
of each Series, or of all Series if voting as a single series is
required, entitled to vote shall be a quorum for the transaction of
business at a Shareholders' meeting, but any lesser number shall be
sufficient for adjournments. Any adjourned session or sessions may be
held, within a reasonable time after the date set for the original
meeting without the necessity of further notice. A majority of the
Shares voted, at a meeting of which a quorum is present, shall decide
any questions and a plurality shall elect a Trustee, except when a
different vote is required or permitted by any provision of the 1940 Act
or other applicable law or by this Declaration or the By-Laws.
FURTHER RESOLVED, that Section 7.1 of the Declaration of Trust be amended to
read as follows:
SECTION 7.1. DURATION AND TERMINATION OF FUND. Unless terminated
as provided herein, the Fund shall continue without limitation of time.
The Fund may be terminated at any time by a majority of the Trustees
then in office subject to a favorable vote of a majority of the
outstanding voting Shares, as defined in the 1940 Act, of each Series
voting separately by Series.
Upon termination, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due or accrued or
anticipated as may be determined by the Trustees, the Fund shall in
accordance with such procedures as the Trustees consider appropriate
reduce the remaining assets to distributable form in cash, securities or
other property, or any combination thereof, and distribute the proceeds
to the Shareholders, in conformity with the provisions of subsection (d)
of Section 4.2.
FURTHER RESOLVED, that Section 7.2 of the Declaration of Trust be amended to
read as follows:
SECTION 7.2. REORGANIZATION. The Trustees may sell, convey and
transfer the assets of the Fund or the assets belonging to any one or
more Series, to another trust, partnership, association or corporation
organized under the laws of any state of the United States or to the
Fund to be held as assets belonging to another Series of the Fund, in
exchange for cash, shares or other securities (including, in the case of
a transfer to another Series of the Fund, Shares of such other Series)
with such transfer being made subject to, or with the assumption by the
transferee of, the liabilities of each Series the assets of which are so
transferred; provided, however, that if shareholder approval is required
by the 1940 Act, no assets belonging to any particular Series shall be
so transferred unless the terms of such transfer shall have first been
approved at a meeting called for the purpose by the affirmative vote of
the holders of a majority of the outstanding voting Shares, as defined
in the 1940 Act, of that Series. Following such transfer, the Trustees
shall distribute such cash, shares or other securities (giving due
effect to the assets and liabilities belonging to and any other
differences among the various Series the assets belonging to which have
been so transferred) among the Shareholders of the Series the assets
belonging to which have been so transferred; and if all of the assets of
the Fund have been so transferred, the Fund shall be terminated.
FURTHER RESOLVED, that Section 7.3 of the Declaration of Trust be amended to
read as follows:
SECTION 7.3. AMENDMENTS. All rights granted to the Shareholders
under this Declaration of Trust are granted subject to the reservation
of the right to amend this Declaration of Trust as herein provided,
except that no amendment shall repeal the limitations on personal
liability of any Shareholder or Trustee or repeal the prohibition of
assessment upon the Shareholders without the express consent of each
Shareholder or Trustee involved. Subject to the foregoing, the
provisions of this Declaration of Trust (whether or not related to the
rights of Shareholders) may be amended at any time by an instrument in
writing signed by a majority of the then Trustees (or by an off~cer of
the Fund pursuant to the vote of a majority of such Trustees), when
authorized so to do by the vote, in accordance with subsectian (e) of
Section 4.2, of Shareholders holding a majority of the Shares entitled
to vote, except that amendments either (a) establishing and designating
any new Series of Shares not established and designated in Section 4.2,
or any SubSeries or (b) having the purpose of changing the name of the
Fund or of supplying any omission, curing any ambiguity or curing,
correcting or supplementing any provision hereof which is internally
inconsistent with any other provision hereof or which is defective or
inconsistent with the 1940 Act or with the requirements of the Internal
Revenue Code and applicable regulations for the Fund's obtaining the
most favorable treatment thereunder available to regulated investment
companies, shall not require authorization by Shareholder vote. Subject
to the foregoing, any such amendment shall be effective as provided in
the instrument containing the terms of such amendment or, if there is no
provision therein with respect to effectiveness, upon the execution of
such instrument and of a certificate (which may be a part of such
instrument) executed by a Trustee or officer of the Fund to the effect
that such amendment has been duly adopted.
FURTUER RESOLVED, that Section 6.2 of the Declaration of Trust be amended to
read as follows:
SECTION 6.2. TRUSTEE'S GOOD FAITH ACTION: EXPERT ADVICE; NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be
liable for his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office
of Trustee, and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. Subject to the foregoing, (a) the
Trustees shall not be responsible or liable in any event for any neglect
or wrongdoing of any officer, agent, employee, consultant, adviser,
administrator, distributor or principal underwriter, custodian or
transfer, dividend disbursing, Shareholder servicing or accounting agent
of the Fund, nor shall any Trustee be responsible for the act or
omission of any other Trustee; (b) the Trustees may take advice of
counsel or other experts with respect to the meaning and operation of
this Declaration of Trust and their duties as Trustees, and shall be
under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (c) in discharging
their duties, the Trustees, when acting in good faith, shall be entitled
to rely upon the books of account of the Fund and upon written reports
made to the Trustees by any officer appointed by them, any independent
public accountant, and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of a
Contracting party appointed by the Trustees pursuant to Section 3.3. The
Trustees as such shall not be required to give any bond or surety or any
other security for the performance of their duties. Nothing stated
herein is intended to detract from the protection accorded to Trustees
by Ohio Revised Code Sections 1746.08 and 1701.59, as amended from time
to time."
Date: August 20, 1993 /S/ JAMES M. JOHNSON
----------------------------
JAMES M. JOHNSON, Secretary
PDC&J PERFORMANCE FUND
AMENDMENT TO DECLARATION OF TRUST
Pursuant to Section 7.3 of the Declaration of Trust of PDC&J
Performance Fund (the "Trust") and effective upon execution of
this document, the undersigned, being a majority of the Trustees
of the Trust, hereby change the name of the Trust to "PC&J
Performance Fund."
/s/ Leslie O. Parker III
--------------------------------
Leslie O. Parker III, Trustee
/s/ Kathleen A. Carlson
--------------------------------
Kathleen A. Carlson, Trustee
/s/ James M. Johnson
--------------------------------
James M. Johnson, Trustee
/s/ Donald N. Lorenz
--------------------------------
Donald N. Lorenz, Trustee
/s/ Thomas H. Rodgers
--------------------------------
Thomas H. Rodgers, Trustee
Dated: October 6, 1994
Ex99.B2
BY-LAWS
OF
PDC&J PERFORMANCE FUND
ARTICLE 1
DECLARATION OF TRUST AND OFFICES
1.1 DECLARATION OF TRUST. These By-Laws shall be subject to the
Declaration of Trust, as from time to time in effect (the "Declaration of
Trust"), of PDC&J Performance Fund, the Ohio business trust established by
the Declaration of Trust (the "Fund").
1.2 OFFICES. The Fund shall maintain its principal office in Dayton,
Ohio, or in such other city as the Trustees otherwise may determine.
ARTICLE 2
MEETING OF TRUSTEES
2.1 REGULAR MEETINGS. Regular meetings of the Trustees may be held
without call or notice at such places and at such times as the Trustees may
from time to time determine, provided that notice of the first regular
meeting following any such determination shall be given to absent Trustees. A
regular meeting of the Trustees may be held without call or notice
immediately after and at the same place as the annual meeting of the
shareholders.
2.2 SPECIAL MEETINGS. Special meetings of the Trustees may be held at
any time and at any place designated in the call of the meeting when called
by the President or the Treasurer or by two or more Trustees, sufficient
notice thereof being given to each Trustee by the Secretary or an Assistant
Secretary or by the officer or the Trustees calling the meeting.
2.3 NOTICE. It shall be sufficient notice to a Trustee of a special
meeting to send notice by mail at least forty-eight hours or by telegram at
least twenty-four hours before the meeting addressed to the Trustee at his or
her usual or last known business or residence address or to give notice to
him or her in person or by telephone at least twenty-four hours before the
meeting. Notice of a meeting need not be given to any Trustee if a written
waiver of notice, executed by him or her before or after the meeting, is
filed with the records of the meeting, or to any Trustee who attends the
meeting without protesting prior thereto or at its commencement the lack of
notice to him or her. Neither notice of a meeting nor a waiver of a notice
need specify the purposes of the meeting.
2.4 QUORUM. At any meeting of the Trustees a majority of the Trustees
then in office shall constitute a quorum. Any meeting may be adjourned from
time to time by a majority of the votes cast upon the question, whether or
not a quorum is present, and the meeting may be held as adjourned without
further notice.
2.5 PARTICIPATION BY TELEPHONE. One or more of the Trustees or of any
committee of the Trustees may participate in a meeting thereof by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting
except as otherwise provided by the Investment Company Act of 1940.
2.6 ACTION BY CONSENT. Any action required or permitted to be taken at
any meeting of the Trustees or any committee thereof may be taken without a
meeting, if a written consent of such action is signed by a majority of the
Trustees then in office or a majority of the members of such committee, as
the case may be, and such written consent is filed with the minutes of the
proceedings of the Trustees or such committee, except as otherwise provided
by the Investment Company Act of 1940.
ARTICLE 3
OFFICERS
3.1 ENUMERATION; QUALIFICATION. The officers of the Fund shall be a
President, a Treasurer, a Secretary and such other officers, including Vice
Presidents, if any, as the Trustees from time to time may in their discretion
elect. The Fund may also have such agents as the Trustees from time to time
may in their discretion appoint. The President of the Fund shall be a Trustee
and may but need not be a shareholder; and any other officer may be but none
need be a Trustee or shareholder. Any two or more offices may be held by the
same person.
3.2 ELECTION. The President, the Treasurer and the Secretary shall be
elected annually by the Trustees at their first meeting following the annual
meeting of shareholders. Other officers, if any, may be elected or appointed
by the Trustees at said meeting or at any other time. Vacancies in any office
may be filled at any time.
3.3 TENURE. The President, the Treasurer and the Secretary shall hold
office until the first meeting of the Trustees next following the annual
meeting of the shareholders and until their respective successors are chosen
and qualified, or in each case until he or she sooner dies, resigns, is
removed or becomes disqualified. Each other officer shall hold office and
each
agent shall retain authority at the pleasure of the Trustees.
3.4 POWERS. Subject to the other provisions of these powers herein and
in the Declaration of Trust set forth, such duties and powers as are commonly
incident to the office occupied by him or her as if the Fund were organized
as an Ohio business corporation and such other duties and powers as the
Trustees
may from time to time designate.
3.5 PRESIDENT. Unless the Trustees otherwise provide, the President, or
in the absence of the President, any other Trustee chosen by the Trustees,
shall preside at all meetings of the shareholders and of the Trustees. The
President shall be the chief executive officer.
3.6 TREASURER. The Treasurer shall be the chief financial and
accounting officer of the Fund, and shall, subject to the provisions of the
Declaration .of Trust and to any arrangement made by the Trustees with a
custodian, investment adviser or manager, or transfer, shareholder servicing
or similar agent, be in charge of the valuable papers, books of account and
accounting records of the Fund, and shall have such other duties and powers
as may be designated from time to time by the Trustees or by the President.
3.7 SECRETARY. The Secretary shall record all proceedings of the
shareholders and the Trustees in books to be kept therefor, which books or a
copy thereof shall be kept at the principal office of the Fund. In the
absence of the Secretary from any meeting of the shareholders or Trustees, an
assistant secretary, or if there be none or if he or she is absent, a
temporary secretary chosen at such meeting shall record the proceedings
thereof in the aforesaid books.
3.8 RESIGNATIONS AND REMOVALS. Any Trustee or officer may resign at any
time by written instrument signed by him or her and delivered to the
President or the Secretary or to a meeting of the Trustees. Such resignation
shall be effective upon receipt unless specified to be effective at some
other time. The Trustees may remove any officer elected by them with or
without cause. Except to the extent expressly provided in a written agreement
with the Fund, no Trustee or officer resigning and no officer removed shall
have any right to any compensation for any period following his or her
resignation or removal, or any right to damages on account of such removal.
ARTICLE 4
COMMITTEES
4.1 GENERAL. The Trustees, by vote of a majority of the Trustees then in
office, may elect from their number an Executive Committee or other
committees and may delegate thereto some or all of their powers except those
which by law, by the Declaration of Trust, or by these By-Laws may not be
delegated. Except as the Trustees may otherwise determine, any such committee
may make rules for the conduct of its business, but unless otherwise provided
by the Trustees or in such rules, its business shall be conducted so far as
possible in the same manner as is provided by these By-Laws for the Trustees
themselves. All members of such committees shall hold offices at the pleasure
of the Trustees. The Trustees may abolish any such committee at any time. Any
committee to which the Trustees delegate any of their powers or duties shall
keep records of its meetings and shall report its action to the Trustees. The
Trustees shall have power to rescind any action of any committee, but no such
rescission shall have retroactive effect.
ARTICLE 5
REPORTS
5.1 GENERAL. The Trustees and officers shall render reports at the time
and in the manner required by the Declaration of Trust or any applicable
laws. Officers and Committees shall render such additional reports as they
may deem desirable or as may from time to time be required by the Trustees.
ARTICLE 6
FISCAL YEAR
6.1 GENERAL. The fiscal year of the Trust shall be fixed, and shall be
subject to change by the Trustees.
ARTICLE 7
SEAL
7.1 GENERAL. If required by applicable law, the seal of the Fund shall
consist of a flat-faced die with the word "Ohio", together with the name of
the Fund and the year of its organization cut or engraved thereon, but,
unless otherwise required by the Trustees, the seal shall not be necessary 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 Fund.
ARTICLE 8
EXECUTION OF PAPERS
8.1 GENERAL. Except as the Trustees may generally or in particular cases
authorize the execution thereof in some other manner, all deeds, leases,
contracts, notes and other obligations made by the Trustees shall be signed
by the President, any Vice President, or by the Treasurer and need not bear
the seal of the Fund, but shall state the substance of or make reference to
the provisions of Section 6.1 of the Declaration of Trust.
ARTICLE 9
ISSUANCE OF SHARE CERTIFICATES
9.1 SHARE CERTIFICATES. In lieu of issuing certificates for shares, the
Trustees or the transfer agent may either issue receipts therefor or may keep
accounts upon the books of the Fund for the record holders of such shares,
who shall in either case be deemed, for all purposes hereunder, to be the
holders of certificates for such shares as if they had accepted such
certificates and shall be held to have expressly assented and agreed to the
terms hereof.
The Trustees may at any time authorize the issuance of share
certificates. In that event, each shareholder shall be entitled to a
certificate stating the number of shares owned by him, in such form as shall
be prescribed from time to time by the Trustees. Such certificate shall be
signed by the President or a Vice President and by the Treasurer or Assistant
Treasurer. Such signatures may be facsimiles if the certificate is signed by
a transfer agent, or by a registrar, other than a Trustee, officer or
employee of the Fund. In case any officer who has signed or whose facsimile
signature has been placed on such certificate shall cease to be such officer
before such certificate is issued, it may be issued by the Fund with the same
effect as if he were such officer at the time of its issue.
9.2 LOSS OF CERTIFICATES. In case of the alleged loss or destruction or
the mutilation of a share certificate, a duplicate certificate may be issued
in place thereof, upon such terms as the Trustees shall prescribe.
9.3 ISSUANCE OF NEW CERTIFICATE TO PLEDGEE. In the event certificates
have been issued, a pledgee of shares transferred as collateral security
shall be entitled to a new certificate if the instrument of transfer
substantially describes the debt or duty that is intended to be secured
thereby. Such new certificate shall express on its face that it is held as
collateral security, and the name of the pledgor shall be stated thereon, who
alone shall be liable as a shareholder, and entitled to vote thereon.
9.4 DISCONTINUANCE OF ISSUANCE OF CERTIFICATES. The Trustees may at any
time discontinue the issuance of share certificates and may, by written
notice to each shareholder, require the surrender of share certificates to
the Fund for cancellation. Such surrender and cancellation shall not affect
the ownership of shares in the Fund.
ARTICLE 10
CUSTODIAN
10.1 GENERAL. The Fund shall at all times employ a bank or trust company
having a capital surplus and undivided profits of at least Twenty-Five
Million Dollars ($25,000,000) as Custodian of the capital assets of the Fund.
The Custodian shall be compensated for its services by the Fund and upon such
basis as shall be agreed upon from time to time between the Fund and the
Custodian.
ARTICLE 11
DEALINGS WITH TRUSTEES AND OFFICERS
11.1 GENERAL. Any Trustee, officer or other agent of the Fund may
acquire, own and dispose of shares of the Fund to the same extent as if he
were not a Trustee, officer or agent; and the Fund may accept subscriptions
to shares or repurchase shares from any firm or company in which he is
interested.
ARTICLE 12
SHAREHOLDERS
12.1 ANNUAL MEETING. The annual meeting of the shareholders of the Fund
shall be held not more than 120 days after the end of each fiscal year, or on
such other day as the Trustees shall select, at such time as the President or
the Trustees may fix in the notice of the meeting.
12.2 RECORD DATES. For the purpose of determining the shareholders who
are entitled to vote or act at any meeting or any adjournment thereof, or who
are entitled to receive payment of any dividend or of any other distribution,
the Trustees may from time to time fix a time, which shall be not more than
60 days before the date of any meeting of shareholders or the date for the
payment of any dividend or of any other distribution, as the record date for
determining the shareholders having the right to notice of and to vote at
such meeting and any adjournment thereof or the right to receive such
dividend or distribution, and in such case only shareholders of record on
such record date shall have such right, notwithstanding any transfer of
shares on the books of the Fund after the record date; or without fixing such
record date the Trustees may for any such purposes close the register or
transfer books for all or any part of such period.
ARTICLE 13
AMENDMENTS TO THE BY-LAWS
13.1 GENERAL. These By-Laws may be amended or repealed, in whole or in
part, by a majority of the Trustees then in office at any meeting of the
Trustees, or by one or more writings signed by such a majority.
Ex99.B2a
PDC&J PERFORMANCE FUND
RESOLUTIONS OF THE BOARD OF TRUSTEES
AMENDMENTS TO BY-LAWS
CERTIFICATE
The undersigned Secretary of PDC&J Performance Fund certifies
that the following resolutions were adopted by the Board of Trustees
at a meeting held on June 25, 1993, were approved by the
shareholders at a meeting held on August 20, 1993, and are in full
force and effect:
"RESOLVED, that Section 3.2 of Article 3 of the By-Laws be amended
to read as follows:
3.2 ELECTION. The President, the Treasurer and the
Secretary shall be elected annually by the Trustees.
Other officers, if any, may be elected or appointed by the
Trustees at any time. Vacancies in any office may be
filled at any time.
FURTHER RESOLVED, that Section 3.3 of Article 3 be amended to read
as follows:
3.4 TENURE. The President, the Treasurer and the
Secretary shall hold office for one year and until
respective successors are chosen and qualified, or in each
case until he or she sooner dies resigns, is removed or
becomes disqualified. Each other officer shall hold
officer and each agent shall retain authority at the
pleasure of the Trustee.
FURTHER RESOLVED, that Section 12.1 of Article 12 be amended to read
as follows:
12.1 MEETINGS. A meeting of the shareholders of the
Fund shall be held whenever called by the Trustees,
whenever required by the provisions of Section 16(a) of
the Investment Company Act of 1940, as amended, or
whenever otherwise required pursuant to the Declaration of
Trust. Any meeting shall be held on such day and at such
time as the President or the Trustees may fix in the
notice of the meeting."
Date: August 20, 1993
/S/ JAMES M. JOHNSON
---------------------
James M. Johnson
Ex99.B5
INVESTMENT ADVISORY AGREEMENT
TO: Parker, Dillon, Carlson & Johnson, Inc.
Governours Square Office Center
1416 Miamisburg-Centerville Road
Dayton, Ohio 45459
Dear Sirs:
PDC&J Performance Fund (hereinafter referred to as the "Fund") herewith
confirms our agreement with you.
The Fund has been organized as an Ohio business trust to engage in the
business of an investment company. You have been selected to act as the sole
investment adviser of the Fund and to provide certain other services, as more
fully set forth below, and you are willing to act as such investment adviser
and to perform such services under the terms and conditions hereinafter set
forth. Accordingly, the Fund agrees with you, and by your execution of the
Acceptance at the end hereof you agree with the Fund, as follows upon the
date of your execution of this Agreement.
1. ADVISORY SERVICES
You will regularly provide the Fund with such investment research,
advice and supervision as you in your discretion deem advisable and will
furnish a continuous investment program for the Fund consistent with the
Fund's investment objectives and policies. You will determine what securities
shall be purchased for the Fund, what portfolio securities shall be held or
sold by the Fund, and what portion of the Fund's assets shall be held
uninvested, subject always to the Fund's investment objectives, policies and
restrictions, as each of the same shall be from time to time in effect, and
subject further to such policies and instructions as the Board of Trustees
(the "Board") of the Fund may from time to time establish and supply to you
copies thereof. You will advise and assist the officers of the Fund in taking
such steps as are necessary or appropriate to carry out the decisions of the
Board and the appropriate committees of such Board regarding the conduct of
the business of the Fund.
2. ALLOCATION OF CHARGES AND EXPENSES
You or your affiliate, PDC&J Service Corp., will pay the compensation
and expenses of any persons rendering any services to the Fund who are
officers, directors, shareholders or employees of your corporation and will
make available, without expense to the Fund, the services of such of your
employees as may duly be elected officers or trustees of the Fund, subject to
their individual consent to serve and to any limitations imposed by law.
The Fund will be responsible for the payment of all interest, taxes,
brokerage and extraordinary or non-recurring expenses, including expenses of
any litigation to which the Fund may be a party and indemnification of the
Fund's officers, directors and shareholders with respect thereto, and of fees
payable under this Agreement and under the Management and Transfer Agent
Agreement.
All other expenses incurred in the administration of the Fund shall be
borne by your affiliate, PDC&J Service Corp.
3. COMPENSATION OF THE ADVISER
For all of the services to be rendered and payments made as provided in
this Agreement the Fund will pay you as of the last day of each month a
monthly fee, accrued daily, equal to the annual rate of 1% of the daily net
asset value of the Fund.
The total fees paid during the first and second halves of each fiscal
year of the Fund shall not exceed the semiannual total of the daily fee
accruals requested by you during the applicable six-month period. The daily
net asset value shall be determined pursuant to the applicable provisions of
the Declaration of Trust of the Fund or a resolution of the Board, if
required. If, pursuant to such provisions, the determination of net asset
value is suspended for any particular business day, then for the purposes of
this paragraph, the value of the net assets of the Fund as last determined
shall be deemed to be the value of the net assets as of the close of the
business day, or as of such other time as the value of the Fund's net assets
may lawfully be determined, on that day. If the determination of the net
asset value of the Fund's shares has been suspended for a period including
such month, your compensation payable at the end of such month shall be
computed on the basis of the value of the net assets of the Fund as last
determined (whether during or prior to such month).
You agree that your compensation during any fiscal year shall be reduced
by an amount, if any, by which the expenses of the Fund for such fiscal year
exceed the lowest applicable expense limitation applicable to the Fund
imposed by State securities administrators in States where the Fund's shares
are qualified for sale, as such limitations may be lowered or raised from
time to time. The payment of your compensation at the end of any month will
be reduced or postponed or, if necessary, a refund will be made to the Fund
as soon as practicable. You or your affiliate, PDC&J Service Corp., shall
refund to the Fund within sixty days after the close of each fiscal year, the
amount of any additional reduction of your compensation pursuant to this
paragraph as promptly as practicable after the end of such fiscal year,
provided, however, that you will not be required to pay the Fund an amount
greater than the fee paid to you in respect of such year pursuant to this
Agreement nor will your affiliate be required to pay the Fund an amount
greater than the fee paid to it under its Management And Transfer Agent
Agreement with the Fund. As used in this paragraph "expenses" shall mean
those expenses included in the applicable expense limitation having the
broadest specification thereof (certain expenses such as brokerage
commissions, if any, taxes, interest and extra ordinary items are excluded
from such limitations), and "expense limitation" means a limit on the
maximum annual expenses which may be incurred by an investment company
determined (1) by multiplying a fixed percentage by the average or
multiplying more than one such percentage by different specified amounts of
the average of the values of an investment company's net assets for a fiscal
year or (2)by multiplying a fixed percentage of an investment company's net
investment income for a fiscal year. The words "lowest expense limitation"
shall be construed to result in the largest reduction of your compensation
for any fiscal year of the Fund.
4. EXECUTION OF PURCHASE AND SALE ORDERS
In connection with purchases or sales of portfolio securities for the
account of the Fund, it is understood that you will arrange for the placing
of all orders for the purchase and sale of portfolio securities for the
Fund's account with brokers or dealers selected by you subject to review of
this selection by the Fund's Board from time to time. In the selection of
such brokers or dealers and the placing of such orders, you are directed at
all times to seek for the Fund the best net results for the Fund, taking into
account such factors as price, size of order, difficulties of execution and
operational facilities of the firm involved and the firm's risk in
positioning a block of securities.
To the extent that the execution and price offered by more than one
dealer are comparable, you may in your discretion, choose to purchase and
sell portfolio securities from and to dealers who provide (a) research,
statistical and other information to the Fund and to you, and (b) the
occasional sale of Fund shares. The Fund and you understand and acknowledge
that, although the information and occasional sales may be useful to the Fund
and you, it is not possible to place a dollar value on such information or
occasional sales. It is the Fund's opinion, as well as your opinion, that
neither the review and study of this information nor such occasional sales
will reduce the overall cost to you in performing your duties to the Fund
under this Agreement.
If any occasion should arise in which you give any advice to clients of
yours concerning the shares of the Fund, you will act solely as investment
counsel for such client and not in any way on behalf of the Fund. Your
services to the Fund pursuant to this Agreement are not to be deemed to be
exclusive and it is understood that you may render investment advice,
management and other services to others.
5. LIMITATION OF LIABILITY OF ADVISER
You shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Fund in connection with the matters to which
this Agreement relates, except a loss resulting from willful misfeasance, bad
faith or gross negligence on your part in the performance of your duties or
from reckless disregard by you of your obligations and duties under this
Agreement ("disabling conduct"). However, you will not be indemnified for any
liability unless (1) a final decision is made on the merits by a court or
other body before whom the proceeding was brought that you were not liable by
reason of disabling conduct or, (2) in the absence of such a decision, a
reasonable determination is made, based upon a review of the facts, that you
were 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 Fund as
defined in the Investment Company Act of 1940 nor uarties to the proceeding
"disinterested, non-party trustees"), or (b) an independent legal counsel in
a written opinion. The Fund will advance attorneys' fees or other expenses
incurred by you in defending a proceeding, upon the undertaking by or on
behalf of you to repay the advance unless it is ultimately determined that
you are entitled to indemnification, so long as you meet at least one of the
following as a condition to the advance: (1) you shall provide a security for
your undertaking, (2) the Fund 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 Fund, or an independent legal
counsel in a written opinion, shall determine, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is
reason to believe that you ultimately will be found entitled to
indemnification. Any person employed by you who may also be or become an
employee of the Fund shall be deemed, when acting within the scope of his
employment by the Fund, to be acting in such employment solely for the Fund
and not as your employee or agent.
6. DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective on the date of your Acceptance
hereof and shall remain in effect until the first Annual Meeting of
Shareholders of the Fund, unless: sooner terminated as hereinafter provided.
This Agreement shall continue in force from year to year thereafter but only
so long as such continuance is approved annually in the manner required by
the Investment Company Act of 1940.
This Agreement may, on sixty days written notice, be terminated at any
time without the payment of any penalty, by vote of a majority of the members
of the Board who are not interested persons of the Fund, as defined in the
Investment Company Act of 1940 and who have no direct or indirect financial
interest in the operation of any plan adopted under Rule 12b-1 under the
Investment Company Act of 1940 or in any agreements relating to such plan, by
vote of a majority of the outstanding voting securities of the Fund or by
you. This Agreement shall automatically terminate in the event of its
assignment.
7. AMENDMENT OF THIS AGREEMENT
No provision of this Agreement may be changed, waived, discharged or
terminated orally, and no amendment of this Agreement shall be effective
until approved by vote of the holders of a majority of the outstanding voting
securities of the Fund and by the Board, including a majority of the trustees
who are not interested persons of you or of the Fund, cast in person at a
meeting called for the purpose of voting on such approval.
8. LIMITATION OF LIABILITY
It is expressly agreed that the obligations of the Fund hereunder shall
not be binding upon any of the trustees, shareholders, nominees, officers,
agents or employees of the Fund, personally, but bind only the assets and
property of the Fund as provided in its Declaration of Trust. The execution
and delivery of this Agreement have been authorized by the trustees of the
Fund and signed by the President of the Fund, acting as such, and will be
approved by shareholders of the Fund, and neither such authorization or
approval by such trustees and shareholders nor such execution and delivery by
such officer shall be deemed to have been made by any of them individually or
to impose any liability on any of them personally, but shall bind only the
assets and property of the Fund as provided in its Declaration of Trust.
9. MISCELLANEOUS
The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
Agreement.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Fund, whereupon this letter shall become a binding
contract upon the date of your Acceptance.
Yours very truly,
ATTEST: PDC&J PERFORMANCE FUND
/S/ JAMES M. JOHNSON BY /S/ LESLIE O. PARKER III
- ---------------------------- --------------------------------
James M. Johnson, Secretary Leslie O. Parker III, President
Dated: December 22, 1983
ACCEPTANCE
The foregoing Agreement is hereby accepted.
ATTEST: PARKER, DILLON, CARLSON & JOHNSON, INC.
/S/ JAMES M. JOHNSON By /S/ LESLIE O. PARKER III
- --------------------- -------------------------
James M. Johnson Leslie O. Parker III
Secretary President
Dated: December 22, 1983
Ex99.B5a
AMENDMENT OF INVESTMENT ADVISORY AGREEMENT
The Investment Advisory Agreement was amended at the Annual Meeting of
Shareholders of PDC&J Performance Fund held on September 7, 1984 as follows:
Section 6 - DURATION AND TERMINATION OF THIS AGREEMENT
The second paragraph of this Section was amended as follows:
"This Agreement may, on sixty days written notice, be
terminate at any time without the payment of any penalty, by vote
of a majority of the members of the Board who are not `interested
persons' of the Fund, as defined in the Investment Company Act of
1940 and who have no direct or indirect financial interest in the
operation of any plan adopted under Rule 12b-1 under the Investment
Company Act of 1940 or in any agreements relating to such plan, by
vote of a majority of the outstanding voting securities of the Fund
or by you. This Agreement shall automatically terminate in the
event of its assignment."
Ex99.B5b
MANAGEMENT AND TRANSFER AGENT AGREEMENT
To: PDC&J Service Corp.
Governours Square Office Center
1416 Miamisburg-Centerville Road
Dayton, Ohio 45459
Dear Sirs:
PDC&J Performance Fund (hereinafter referred to as the Fund) herewith
confirms our agreement with you.
The Fund has been organized as an Ohio business trust to engage in the
business of an investment company. You have been selected to act as the
manager and transfer agent of the Fund, as more fully set forth below, and
you are willing to act as such manager and transfer agent of the Fund under
the terms and conditions hereinafter set forth. Accordingly, the Fund agrees
with you, and by your execution of the Acceptance at the end hereof you agree
with the Fund, as follows upon the date of your execution of this Agreement.
1. MANAGEMENT SERVICES
Except as set forth in the following paragraph you will regularly
provide the Fund with overall management of the Fund's business affairs,
which shall include, but not be limited to, providing such clerical and other
personnel and supplies and office space as shall be necessary for the day-to-
day operation of the Fund, arranging for the employment by the Fund of the
investment adviser, custodian, auditor and legal counsel and coordinating the
activities of the foregoing, assisting in the various federal and state
compliance requirements, including federal and state securities laws
compliance obligations, responding to shareholder inquiries and generally
assuring the efficient operation of the Fund, subject always to such policies
and instructions as the Board of Trustees (the Board) of the Fund may from
time to time establish and supply to you copies thereof. You will advise and
assist the officers of the Fund in taking such steps as are necessary or
appropriate to carry out the decisions of the Board and the appropriate
committees of such Board regarding the conduct of the business of the Fund.
You shall not act as or be required to act as investment adviser to the
Fund or have any authority to supervise the investment or reinvestment of
cash, securities or other properties comprising the assets of the Fund.
2. TRANSFER AGENT SERVICES
You will also serve as the Fund's transfer agent and dividend disbursing
agent in accordance with the following terms and provisions:
A.In connection with the issuance, transfer and redemption of
shares of the Fund we hereby agree as follows:
1. Issuance of Shares. Whenever the Fund shall sell or cause to
shares, it shall cause to be delivered to you as transfer agent any
written notification signed by an authorized officer specifying:
(a)The name of the purchaser, the number of shares sold,
the trade date and price per share; and
(b)The amount of money to be delivered to the
Custodian of the Fund for the sale of such shares.
2. Notification. Upon notification from the Custodian that such
money has been received by it, together with the notification required
under Paragraph 1 hereof, you as transfer agent shall record the
issuance to the purchaser or his authorized agent of such shares of the
Fund as he is entitled to receive. In recording the issuance of shares
to a purchaser or his authorized agent, you as transfer agent shall be
entitled to rely upon the latest written instructions,if ny,previously
received by you from the Fund, the purchaser or his authorized agent
concerning the record ownership of such shares.
3. Suspension or Discontinuance of Sales. You shall not be required
to record the issuance of any shares of the Fund where you have
received from an authorized officer of the Fund or from any appropriate
Federal or state authority, written notification that the sale of the
shares of the Fund has been suspended or discontinued, and you shall be
entitled to rely upon such written notification .
4. Liability for Taxes. Upon the issuance of any shares of the Fund
in accordance with the foregoing provisions hereof, you shall not be
responsible for the payment of any original issue or other taxes
required to be paid by the Fund in connection with such issuance.
5. Transfers or Redemptions. Record ownership of shares of the Fund
will be modified to reflect a transfer or redemption upon presentation
to you as transfer agent of instructions requesting such transfer or
redemption, accompanied by such documents as you deem necessary to
evidence the authority of the person making such transfer or redemption,
and bearing satisfactory evidence of the payment of any stock transfer
taxes. You may reserve the right to refuse to transfer or redeem shares
until you are satisfied that the requested transfer or redemption is
legally authorized, and you shall incur no liability for the refusal, in
good faith, to make transfers or redempt ions which you, in your
judgment,deem improper or unauthorized, or until you are satisfied
that there is no basis to any claims adverse to such transfer or
redemption.
B. In connection with the payment by the Fund of dividends or
distributions, we hereby agree as follows:
1. The Fund shall furnish to you a copy of a resolution of its
Board of Trustees setting forth the date of the declaration of a
dividend or distribution, the date of payment thereof, the record date
of which shareholders entitled to payment shall be determined, the
amount payable per share to the shareholders of record as of that date,
whether such dividend or distribution is to be paid in shares of the
Fund or in cash, and if payable in shares of the Fund the number of
shares to be so issued.
2. Upon the payment date of any share dividend or distribution you
will record the increase in ownership of each record owner to reflect
such share dividend or distribution.
3. It is understood that you in no way shall be responsible for the
determination of the rate of dividend or capital gains distributions due
to the shareholders.
4. It is understood that you shall file such appropriate
information returns concerning the payment of dividends and capital
gains distributions with the proper Federal, State and local authorities
as are required by law to be filed by the Fund but shall in no way be
responsible for the collection or withholding of taxes due on such
dividends or distributions due to shareholders unless required of it by
applicable law. Further, you shall compile, prepare and mail all
necessary reports, concerning the payment of dividends and capital gains
distributions to shareholders required by Federal, state and local
authorities (such as forms 1096, 1099, 1042 and 1042S).
C. In connection with your general responsibilities as transfer
agent and dividend disbursing agent we agree as follows:
1. Good Faith Reliance. You shall be protected in acting upon any
paper or document believed to be genuine and to have been signed by the
proper person or persons and shall not be held to have any notice of any
change of authority of any person until receipt of written notice
thereof from the Fund.
2. Additional Rules. You may establish such additional rules and
regulations governing the transfer or registration of shares of the Fund
as you may deem advisable and consistent with such rules and regulations
generally adopted by bank transfer agents.
3. Recordkeeping. You shall create and maintain all necessary
records in accordance with all applicable laws, rules and regulations,
including, but not limited, to certain records required by Section 31(a)
of the Investment Company Act of 1940 and the rules thereunder, as the
same may be amended from time to time. The Fund, or the Fund's
authorized representatives, shall have access to such records during
your normal business hours. Upon the reasonable request of the Fund,
copies of any such records shall be provided by you to the Fund or the
Fund's authorized representative. Where applicable, such records shall
be maintained by you for the periods and in the places required by Rule
31a-2 under the Investment Company Act of 1940.
4. Shareholder Lists. You will supply shareholder lists to the Fund
from time to time upon receiving a request therefor from an authorized
officer of the Fund.
5. Notices to Shareholders. At the request of an authorized
officer of the Fund, you will address and mail such appropriate notices
to shareholders as the Fund may direct.
6. Shareholders' Meetings. In connection with shareholders'
meetings, you will prepare shareholder lists, mail and certify as to the
mailing of proxy materials, process and tabulate returned proxies,
provide the Fund with regular reports on proxies voted prior to
shareholders' meetings, serve as inspector of elections at shareholders'
meetings and certify shares voted at shareholder meetings.
D. In your capacity as transfer agent and dividend disbursing
agent, the Fund will provide you copies of its current Declaration of
Trust, By-Laws, a resolution of the Board of Trustees of the Fund
appointing you transfer agent and authorizing the execution and delivery
by officers of the Fund of this Agreement, its registration statement on
Form N-1A as filed with the Securities and Exchange Commission, an
opinion of our counsel with respect to the validity of the authorized
and outstanding shares of the Fund and the status of such shares under
the Securities Act of 1933, an incumbency certificate indicating current
officers and trustees of the Fund and the signatures of such officers as
may be authorized from time to time to give instructions to you as
transfer agent, all amendments to the foregoing required to keep the
information therein current, and such other documents, instruments,
opinions, resolutions and information from time to time as you
reasonably may request in order to carry out or render more effective
your duties and responsibilities thereunder.
3. ALLOCATION OF CHARGES AND EXPENSES
During the term of this Agreement you or your affiliate, Parker, Dillon,
Carlson & Johnson, Inc., will pay the compensation and expenses of any
persons rendering any services to the Fund who are officers, directors,
shareholders or employees of your corporation and will make available,
without expense to the Fund, the services of such of your employees as may
duly be elected officers or trustees of the Fund, subject to their individual
consent to serve and to any limitations imposed by law.
The Fund will be responsible for the payment of all interest, taxes,
brokerage and extraordinary or non-recurring expenses, including expenses of
any litigation to which the Fund may be a party and indemnification of the
Fund's officers, directors and shareholders with respect thereto, and of fees
payable under this Agreement and under the Investment Advisory Agreement.
During the term of this Agreement all other expenses incurred in the
administration of the Fund shall be borne by you. Such other expenses shall
include, but shall not be limited to, the organizational costs of the Fund,
costs of preparing, printing and mailing registration statements,
prospectuses, proxy statements, periodic reports and other documents
furnished to shareholders and regulatory agencies, registration, filing and
similar fees, legal, auditing and accounting expenses, fees of the custodian,
expenses of shareholders' and Trustees' meetings, any fees paid to Trustees
who are not interested persons of the investment adviser and any membership
fees.
4. YOUR COMPENSATION
For all of the services to be rendered and payments made as provided in
this Agreement the Fund will pay you as of the last day of each month a fee,
accrued daily, equal to the annual rate of .75% of the daily net asset value
of the Fund, up to ten million dollars of such net asset value, .50% of the
daily net asset value of the Fund for the next twenty million dollars of such
net assets value, and with no additional fee for net asset value in excess of
thirty million dollars.
The total fees paid during the first and second halves of each fiscal
year of the Fund shall not exceed the semiannual total of the daily fee
accruals requested by you during the applicable six-month period. The daily
net asset value shall be determined pursuant to the applicable provisions of
the Declaration of Trust of the Fund or a resolution of the Board, if
required. If, pursuant to such provisions, the determination of net asset
value is suspended for any particular business day, then for the purposes of
this paragraph, the value of the net assets of the Fund as last determined
shall be deemed to be the value of the net assets as of the close of the
business day, or as of such other time as the value of the Fund's net assets
may lawfully be determined, on that day. If the determination of the net
asset value of the Fund's shares has been suspended for a period including
such month, your compensation payable at the end of such month shall be
computed on the basis of the value of the net assets of the Fund as last
determined (whether during or prior to such month).
You agree that your compensation during any fiscal year shall be reduced
by an amount, if any, by which the expenses of the Fund for such fiscal year
exceed the lowest applicable expense limitation applicable to the Fund
imposed by State securities administrators in States where the Fund's shares
are qualified for sale, as such limitations may be lowered or raised from
time to time. The payment of your compensation at the end of any month will
be reduced or postponed or, if necessary, a refund will be made to the Fund
as soon as practicable. You or your affiliate, Parker, Dillon, Carlson &
Johnson, Inc., shall refund to the Fund within sixty days after the close of
each fiscal year, the amount of any additional reduction of your compensation
pursuant to this paragraph as promptly as practicable after the end of such
fiscal year, provided, however, that you will not be required to pay the Fund
an amount greater than the fee paid to you in respect of such year pursuant
to this Agreement nor will your affiliate be required to pay the Fund an
amount greater than the fee paid it under its Investment Advisory Agreement
with the Fund. As used in this paragraph expenses shall mean those expenses
included in the applicable expense limitation having the broadest
specification-thereof (certain expenses such as brokerage commissions, if
any, taxes, interest and extraordinary items are excluded from such
limitations), and expense limitation means a limit on the maximum annual
expenses which may be incurred by an investment company determined (1) by
multiplying a fixed percentage by the average or multiplying more than one
such percentage by different specified amounts of the average of the values
of an investment company's net assets for a fiscal year or (2) by multiplying
a fixed percentage of an investment company's net investment income for a
fiscal year. The words lowest expense limitation shall be construed to result
in the largest reduction of your compensation for any fiscal year of the
Fund.
5. LIMITATION OF YOUR LIABILITY
You shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Fund in connection with the matters to which
this Agreement relates, except a loss resulting from willful misfeasance, bad
faith or gross negligence on your part in the performance of your duties or
from reckless disregard by you of your obligations and duties under this
Agreement (disabling conduct). However, you will not be indemnified for any
liability unless (1) a final decision is made on the merits by a court or
other body before whom the proceeding was brought that you were not liable by
reason of disabling conduct or, (2) in the absence of such a decision, a
reasonable determination is made, based upon a review of the facts, that you
were 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 Fund as
defined in the Investment Company Act of 1940 nor parties to the proceeding
(disinterested, non-party trustees), or (b) an independent legal counsel in a
written opinion. The Fund will advance attorneys' fees or other expenses
incurred by you in defending a proceeding, upon the undertaking by or on
behalf of you to repay the advance unless it is ultimately determined that
you are entitled to indemnification, so long as you meet at least one of the
following as a condition to the advance: (1) you shall provide a security for
your undertaking, (2) the Fund 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 Fund, or an independent legal
counsel in a written opinion, shall determine, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is
reason to believe that you ultimately will be found entitled to
indemnification. Any person employed by you who may also be or become an
employee of the Fund shall be deemed, when acting within the scope of his
employment by the Fund, to be acting in such employment solely for the Fund
and not as your employee or agent.
6. DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective on the date of your Acceptance
hereof and shall remain in effect until the first Annual Meeting of
Shareholders of the Fund, unless sooner terminated as hereinafter provided.
This Agreement shall continue in force from year to year thereafter but only
so long as such continuance is approved annually in the manner required by
the Investment Company Act of 1940.
This Agreement may, on sixty days written notice, be terminated at any
time without the payment of any penalty, by the Board of the Fund, by a vote
of a majority of the outstanding voting securities of the Fund or by you.
This Agreement shall automatically terminate in the event of its assignment.
7. AMENDMENT OF THIS AGREEMENT
No provision of this Agreement may be changed, waived, discharged or
terminated orally, and no amendment of this Agreement shall be effective
until approved by vote of the holders of a majority of the outstanding voting
securities of the Fund and by the Board, including a majority of the trustees
who are not interested persons of you or of the Fund, cast in person at a
meeting called for the purpose of voting on such approval.
8. LIMITATION OF LIABILITY
It is expressly agreed that the obligations of the Fund hereunder shall
not be binding upon any of the trustees, share holders, nominees,
officers, agents or employees of the Fund, personally, but bind only the
assets and property of the Fund as provided in its Declaration of Trust. The
execution and delivery of this Agreement have been authorized by the trustees
of the Fund and signed by the President of the Fund, acting as such, and will
be approved by shareholders of the Fund, and neither such authorization or
approval by such trustees and shareholders nor such execution and delivery by
such officer shall be deemed to have been made by any of them individually
or to impose any liability on any of them personally, but shall bind only
the assets and property of the Fund as provided in its Declaration of Trust.
9. MISCELLANEOUS
The captions in this Agreement are included for convenience of reference only
and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
Agreement.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Fund, whereupon this letter shall become a binding
contract upon the date of your Acceptance.
Yours very truly,
ATTEST:
PDC&J PERFORMANCE FUND
/S/ JAMES M. JOHNSON By /S/ LESLIE 0. PARKER III
- --------------------- -------------------------
James M. Johnson Leslie 0. Parker III,
Secretary President
Dated: December 22, 1983
ACCEPTANCE
The foregoing Agreement is hereby accepted.
ATTEST: PDC&J SERVICE CORP.
/S/ JAMES M. JOHNSON By /S/ LESLIE 0. PARKER III
- --------------------- -------------------------
James M. Johnson Leslie 0. Parker III
Secretary President
Dated: December 22, 1983
Ex99.B5c
AMENDMENT OF MANAGEMENT AND TRANSFER AGENT AGREEMENT
The Management And Transfer Agent Agreement was amended by the
shareholders of PDC&J Performance Fund at the Annual Meeting held on
September 7, 1984 as follows:
Section 4 - YOUR COMPENSATION
The first paragraph of this Section was amended as follows:
"For all of the services to be rendered and payments made as
provided in this Agreement the Fund will pay you as of the last day
of each month a fee, accrued daily equal to the annual rate of
.50% if the daily net asset value of the Fund."
Section 6 - DURATION AND TERMINATION OF THIS AGREEMENT
The second paragraph of this Section was amended as follows:
"This Agreement may, on sixty days written notice, be
terminated at any time without the payment of any penalty, by vote
of a majority of the members of the Board who are not 'interested
persons' of the Fund, as defined in the Investment Company Act of
1940 and who have no direct or indirect financial interest in the
operation of any plan adopted under Rule 12b-1 under the Investment
Company Act of 1940 or in any agreement relating to such plan, by
vote of a majority of the outstanding voting securities of the Fund
or by you. This Agreement shall automatically terminate in the
event of its assignment."
Ex99.B5d
AMENDMENT NO. 2 TO MANAGEMENT AND TRANSFER AGENT AGREEMENT
Agreement made this 20th day of August, 1993, by and between
PDC&J PRESERVATION FUND (the "Fund") and PDC&J SERVICE CORP.
RECITALS
WHEREAS, the parties entered into a Management and Transfer Agent
Agreement dated January 4, 1985 (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement to eliminate the
requirement of approval by the Fund's shareholders of any amendments to the
Agreement; and
WHEREAS, the shareholders of the Fund approved this Amendment to the
Agreement on August 20, 1993.
NOW, THEREFORE, it is mutually agreed as follows:
1. Section 7 of the Agreement is hereby amended to read as follows:
"7. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may
be changed, waived, discharged or terminated orally, and no amendment of
this Agreement shall be effective until approved by the Board of
Trustees of the Fund, including a majority of the trustees who are not
interested persons of you or of the Fund."
2. In all other respects, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ATTEST: PDC&J PERFORMANCE FUND
/S/ JAMES M. JOHNSON /S/ LESLIE O. PARKER III
- ---------------------------- --------------------------------
James M. Johnson, Secretary Leslie O. Parker III, President
ATTEST: PDC&J SERVICE CORP.
/S/ JAMES M. JOHNSON /S/ LESLIE O. PARKER III
- ---------------------------- --------------------------------
James M. Johnson, Secretary Leslie O. Parker Iii, President
Ex99.B5e
THIRD AMENDMENT TO
MANAGEMENT AND TRANSFER AGENT AGREEMENT
This Third Amendment to Management and Transfer Agent Agreement is made
as of December 18, 1996 between PC&J Service Corp.(formerly PDC&J Service
Corp.) and PC&J Performance Fund (formerly PDC&J Performance Fund).
WITNESSETH:
WHEREAS, the parties set forth above entered into a Management and
Transfer Agent Agreement dated December 22, 1983 (the "Management
Agreement"); and
WHEREAS, PDC&J Service Corp. has changed its name to PC&J Service Corp.;
and
WHEREAS, PDC&J Performance Fund has changed its name to PC&J Performance
Fund; and
WHEREAS, the parties desire to amend the Management Agreement in certain
respects.
NOW, THEREFORE, in consideration of the mutual representations,
warranties and agreements contained herein, the parties do hereby agree as
follows:
1. Section 4 of the Agreement is hereby amended to read as follows:
"For all of the services to be rendered and payments made as
provided in this Agreement, the Fund will pay you as of the last day of each
month a fee, accrued daily, equal to the annual rate of .50% of the daily net
asset value of the Fund."
2. In all other respects, the Management Agreement is ratified and
affirmed as originally written.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed as of the day and year first above written.
ATTEST: PC&J PERFORMANCE FUND
/S/ JAMES M. JOHNSON By: /S/ LESLIE O. PARKER III
- ------------------------------ ----------------------------------
James M. Johnson, Secretary Leslie O. Parker III, President
ACCEPTANCE
The foregoing Amendment is hereby accepted.
ATTEST: PC&J SERVICE CORP.
/S/ JAMES M. JOHNSON By: /S/ LESLIE O. PARKER III
- ------------------------------ ----------------------------------
James M. Johnson, Secretary Leslie O. Parker III, President
Ex99.B8
CUSTODIAN AGREEMENT
AGREEMENT made as of this 22nd day of December, 1983 by and among PDC&J
PERFORMANCE FUND, an Ohio business trust having its principal place of
business at Governours Square Office Center, 1416 Miamisburg-Centerville
Road, Dayton, Ohio 45459 (hereinafter called the "Fund"), THE FIRST NATIONAL
BANK OF CINCINNATI, a national banking association, having its principal
place of business at First National Bank Center, 425 Walnut Street,
Cincinnati, Ohio 45202 (hereinafter called the "Bank") and, for the limited
purpose of agreeing to pay the fees and expenses of the Bank hereunder as set
forth in Section 2.7 hereof, PDC&J SERVICE CORP., an Ohio corporation having
its principal place of business at 1416 Miamisburg-Centerville Road, Dayton,
Ohio 45459 (hereinafter called "Service Corp.").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained the Fund, the
Bank, and for the limited purpose of payment, Service Corp., intending to be
legally bound hereby, agree as follows:
ARTICLE I
DEPOSITORY
The Fund agrees to and does hereby appoint the Bank its depository
subject to the provisions hereof, and likewise agrees to deliver to the Bank
certified or authenticated copies of its Declaration of Trust and By-Laws,
all amendments thereto, a certified copy of the resolution of the Board of
Trustees appointing the Bank to act in the capacities covered by this
Agreement and authorizing the signing of this Agreement and copies of such
resolutions of its Board of Trustees, contracts - and other documents as may
be required by the Bank in the performance of its duties hereunder. The Bank
accepts such appointment and agrees to perform the duties herein set forth.
As the Fund's depository, the Bank shall, INTER ALIA, receive and process all
checks and other instruments deposited to the Fund's account, both for
purchase of shares of the Fund and otherwise and including the endorsement
and deposit for collection, in the name of the Fund, of checks, drafts or
other negotiable instruments payable to the order of the Fund and not
otherwise so endorsed, shall credit funds to the Fund when received or upon
such other schedule as shall be agreeable between the Bank and the Fund and
shall provide weekly statements on trust accounts and monthly statements for
commercial accounts the Fund's account either through the Federal Reserve
Wire System or other bank wire transfer systems or otherwise received, the
Bank shall provide the Fund and its transfer agent ("Transfer Agent") with
timely notice of the receipt of such deposits and receipt of any information
relating to the wire and transmitting party.
ARTICLE II
CUSTODIAN
Section 2.1 Subject to the provisions hereof, the Fund agrees to and
does hereby appoint the Bank its Custodian, and agrees that the Bank shall
retain all securities and cash now owned or hereafter acquired by the Fund,
and the Fund also agrees to deliver and pay or cause to be delivered and paid
to the Bank as Custodian, all securities and cash hereafter acquired by the
Fund. The Bank accepts such appointment and agrees to perform the duties
herein set forth.
Section 2.2 All securities delivered to the Bank (other than bearer
securities) shall be properly endorsed and in form for transfer or in the
name of the Bank or of a nominee of the Bank or in the name of the Fund
or of a nominee of the Fund.
Section 2.3 As Custodian, the Bank shall have and perform the following
powers and duties:
A. SAFEKEEPING. To keep safely in a separate account the securities
of the Fund and on behalf of the Fund, from time to time, to receive
delivery of certificates for safekeeping and to keep such certificates
physically segregated at all times from those of any other person. The
Bank shall maintain records of all receipts, deliveries and locations of
such - securities, together with a current inventory thereof and shall
conduct periodic physical inspections (including a complete physical count
once per year to be conducted and certified to the Fund by an officer of
the Bank) of certificates representing stocks and other securities held by
it under this Agreement in such manner as the Bank shall determine from
time to time to be advisable in order to verify the accuracy of such
inventory. Provided, however, that the Bank may deposit the securities of
the Fund in a clearing agency which acts as a securities depository,
including Depository Trust Company, or the book-entry system, including
the Federal Reserve/Treasury book entry system for United Stated and Federal
agency securities, or both, under an arrangement which complies with the
provisions of Rule 17f-4 promulgated under the Investment Company Act of
1940. With respect to securities held by any agent appointed pursuant to
Section 2.6B. and with respect to securities or cash held by any Sub-
Custodian appointed pursuant to Section 2.6C., the Bank may rely upon
certificates from such agent as to the holdings of such agent and
from such Sub-Custodian as to the holdings of such Sub-Custodian, it being
understood that such reliance in no way relieves the Bank of its
responsibilities under this Agreement. The Bank will promptly report to
the Fund the results of such inspections and certifications, indicating
any shortages or discrepancies uncovered thereby, and take appropriate
action to remedy any such shortages or discrepancies.
B. REGISTERED NAME, NOMINEE. To register securities of the Fund
held by the Bank in the name of the Fund or of any nominee of the Fund
or in the name of the Bank or of any nominee of the Bank or in the name
of any agent or any nominee of such agent pursuant to Section 2.6B. hereof
or in the name of any Sub-Custodian or any nominee of any such Sub-
Custodian appointed pursuant to Section 2.6C. hereof.
C. PURCHASES. Upon receipt of proper instructions, and insofar as
cash is available for the purpose, to pay for and receive all securities
purchased for the account of the Fund, registered as provided in Section
2.3B. hereof or in form for transfer satisfactory to the Bank. All
securities accepted by the Bank shall be accompanied by payment of any
dividends, interest or other distributions of the issuer, due the
purchaser. All purchase transactions for the Fund shall be conducted by
the Bank on a "delivery against payment" basis, and in any and every case of
a purchase of securities for the account of the Fund where payment is
made by the Bank in advance of receipt of the securities purchased, the
Bank shall be absolutely liable to the Fund for such securities to the
same extent as if the securities had been received by the Bank.
D. EXCHANGES. Upon receipt of proper instructions, to exchange
securities or interim receipts or temporary securities held by it or by
any agent appointed by it pursuant to Section 2.6B. hereof or any Sub-
Custodian appointed pursuant to Section 2.6C. hereof for the account of
the Fund for other securities alone or for other securities and cash, and to
expend cash insofar as cash is available, in connection with any merger,
consolidation, reorganization, recapitalization, split-up of shares,
changes of par value, conversion or in connection with the exercise of
warrants, subscription or purchase rights, or otherwise; to deposit any
such securities or securities and cash in accordance with the terms of any
reorganization or protective plan or otherwise, and to deliver
securities to the designated depository or other receiving aent in
response to tender offers or similar offers to purchase received in
writing. Except as instructed by proper instructions received in timely
enough fashion for the Bank to act thereon prior to any expiration date
(which shall be presumed to be three business days prior to such date
unless the Bank has advised the Fund of a different period) and giving
full details of the time and method of submitting securities in response to
any tender or similar offer, exercising any subscription or purchase right
or making any exchange pursuant to this Section 2.3D. and subject to the
Bank having fulfilled its obligations under Section 2.6F. hereof
pertaining to notices or announcements, the Bank shall be under no
obligation regarding any tender or similar offer, subscription or purchase
right or exchange except to exercise its best efforts. When such
securities are in the possession of an agent appointed by the Bank
pursuant to Section 2.6B., or when the securities are in the possession of
a Sub-Custodian appointed pursuant to Section 2.6C., the proper instructions
referred to in the preceding sentence must be received by the Bank in
timely fashion for the Bank to notify the agent or Sub-Custodian in
sufficient time to permit it to act prior to any expiration date.
E. SALES. Upon receipt of proper instructions, to make delivery
against payment of securities which have been sold for the account of the
Fund. All such payments are to be made in the form reasonably designated by
the Fund which may be in cash, by a certified check upon or a treasurer's
or cashier's check of a bank, by effective bank wire transfer through the
Federal Reserve Wire System, or, if appropriate, outside of the Federal
Reserve Wire System and subsequent credit to the Fund's Custodian
Account, or, in case of delivery through a stock clearing company, by book
entry credit by the stock clearing company in accordance with the then
current street custom.
F. PURCHASES BY ISSUER. Upon receipt of proper instructions, to
release and deliver securities owned by the Fund to the Issuer thereof or
its agent when such securities are called, redeemed, retired or otherwise
become payable; provided that, in any such case, the cash or other
consideration is to be delivered to the Bank.
G. CHANGES OF NAME AND DENOMINATION. Upon receipt of proper
instructions to release and deliver securities owned by the Fund to the
Issuer thereof or its agent for transfer into the name of the Fund or
the Bank or a nominee of either, or for exchange for a different number
of bonds, certificates or other evidence representing the same aggregate
face amount or number of units bearing the same interest rate, maturity
date and call provisions, if any; provided that, in any such case, the
new securities are to be delivered to the Bank.
H. STREET DELIVERY. Upon receipt of proper instructions, which 1n
the case of registered securities may be standing instructions, to release
and deliver securities owned by the Fund to the broker selling the same
for examination in accordance with the then current "street delivery"
custom.
I. RELEASE OF SECURITIES FOR USE AS COLLATERAL. Upon receipt of
proper instructions, to release securities belonging to the Fund to any
bank or trust company for the purpose of pledge or hypothecation to secure
any loan incurred by the Fund; provided, however, that securities shall be
released only upon payment to the Bank of the monies borrowed, except that
in cases where additional collateral is required to secure a borrowing
already made, subject to proper prior authorization, further securities
may be released for that purpose. Upon receipt of proper instructions, to
pay such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes evidencing
the loan. The Bank shall have no responsibility to determine whether any
such loans are proper activities of the Fund or to determine the value of
the collateral.
J. RELEASE OR DELIVERY OF SECURITIES FOR OTHER PURPOSES. Upon
receipt of proper instructions, to release or deliver any securities held by
it for the account of the Fund for any other purpose (in addition to those
specified in Sections 2.3D. through 2.3L.) which the Fund declares is a
proper fund purpose pursuant to the proper instructions described in
Section 2.5A. The Bank shall have no responsibility to determine whether
said activities are a proper fund purpose of the Fund.
K. MISCELLANEOUS. In general, to attend to all nondiscretionary
details in connection with the sale, exchange, substitution, purchase,
transfer or other dealing with such securities or property of the Fund
except as otherwise from time to time directed by proper instructions. The
Bank shall render to the Fund an itemized statement of the securities for
which it is accountable to the Fund under this Agreement as of the end of
each month, as well as a list of all security transactions that remain
unsettled at such time.
Section 2.4 As Custodian, the Bank shall have and perform the
following additional powers and duties:
A. BANK ACCOUNT. To retain all cash, other than cash maintained by
he Fund in a checking account established and used in accordance with Rule
17f-3 under the Investment Company Act of 1940, of the Fund in the banking
department of the Bank in two accounts known as PDC&J Performance Fund -
Wire Transfer Account and PC&J Performance Fund -Purchase Account, subject
only to draft or order by; the Bank acting pursuant to the terms of this
Agreement. Additionally, the Bank shall maintain in its banking department
an account in the name of PDC&J Performance Fund -- Redemption Account,
which shall be subject to draft or order of authorized signers of the
Fund. If and when authorized by Proper Instructions more specifically
defined in Section 2.5A., the Bank may open and maintain additional
accounts in its banking department or in such other bank or trust
companies as may be designated by such instructions. If requested by the
Fund, the Bank shall furnish to the Fund monthly statements of the Fund's
accounts in its banking department.
B. COLLECTIONS. Unless otherwise instructed by receipt of proper
Instructions, to collect, receive and deposit in the bank account or
accounts maintained pursuant to Section 2.4A. all income and other
payments with respect to the securities held hereunder, and to execute
ownership and other certificates and affidavits for all Federal and State
tax purposes in connection with the collection of bond and note coupons,
and to do all other things necessary or proper in connection with the
collection of such income, and without waiving the generality of the
foregoing, to:
(1) present for payment on the date of payment all coupons and
other income items requiring presentation;
(2) present for payment all securities which may mature or be
called, redeemed, retired or otherwise become payable on the
date such securities become payable;
(3) endorse and deposit for collection, in the name of the Fund,
checks, drafts or other negotiable instruments on the same
date as received.
In any case in which the Bank does not receive any such due and
unpaid income within a reasonable time after it has made proper demands
for the same (which shall be presumed to consist of at least three demand
letters and at least one telephonic demand), it shall so notify the Fund in
writing, including copies of all demand letters, any written responses
thereto, and memoranda of all oral responses thereto and to telephonic
demands, and await proper instructions; the Custodian shall not be obliged
to take legal action for collection unless and until reasonably indemnified
to its satisfaction. All income and other payments with respect to the
securities held hereunder shall be credited to the Fund's appropriate
investment account not later than one day after such income or other
payment is due from the obligor of such security, whether or not such
payments have been collected by the Bank, except where the Bank notifies the
Fund prior to such time of the occurrence of a failure or default on the
payment by the obligor. The Bank shall notify the Fund as soon as
reasonably practicable whenever income due on securities is not received by
the Bank in due course.
C. SALE OF SHARES OF THE FUND. To make such arrangements with the
Fund as will enable the Bank to make certain it receives the purchase
order information and payment due to the Fund for such new or treasury
shares of the Fund as may be issued or sold from time to time by the
Fund, all in accordance with the Fund's Declaration of Trust or other
Fund documents or agreements, including its current Prospectus. In
connection with such issuance of new or treasury shares of the Fund, the
Bank shall make such arrangements with the Transfer Agent and the Fund as
shall insure the timely notification to the Transfer Agent and to the
Fund of the receipt and sufficiency of purchase order information and
payment for such shares, including notification of any check or other
payment instrument that has been dishonored by the prospective purchaser's
bank and of the receipt of Federal funds by the Custodian by means of
the Federal Reserve Wire System or of the receipt of funds by other bank
wire transfers in payment for the issuance of such shares or of the
receipt of funds through customary bank collection methods.
D. DIVIDENDS AND DISTRIBUTIONS. Upon receipt of proper
instructions, which may be continuing instructions when deemed appropriate
by the parties, to release or otherwise apply cash insofar as available,
for the payment of dividends or other distributions to share holders of
the Fund and the reinvestment of dividends in additional Fund shares for
the account of shareholders of the Fund.
E. REDEMPTION OF SHARES OF THE FUND. From such funds as may be
available for the purpose but subject to the limitations of the Fund's
Declaration of Trust, and applicable resolutions of the Board of Trustees of
the Fund pursuant thereto, to make funds available upon receipt of proper
instructions for payment to shareholders who have delivered to the Fund a
request for redemption of their shares by the Fund.
In connection with the redemption of shares of the Fund pursuant to
the Fund's Declaration of Trust, the Bank is authorized and directed
upon receipt of instructions from the Transfer Agent for the Fund or the
Fund to make funds available for transfer through the Federal Reserve
Wire System or by other bank wire to a commercial bank account by the
redeeming shareholder.
F. PAYMENTS OF DISBURSEMENTS AND LIABILITIES. Upon receipt of
proper instructions, to make or cause to be made, insofar as cash is
available for the purpose, disbursements for the payment on behalf of
the Fund of interest, taxes, brokerage and extraordinary expenses and fees
payable under the Fund's Investment Advisory Agreement and its Management
And Transfer Agent Agreement, whether or not such expenses shall be in whole
or in part capitalized or treated as deferred expenses.
G. OTHER PROPER FUND PURPOSES. Upon receipt of proper instructions,
to make or cause to be made, insofar as cash is available, disbursements
for any other purpose (in addition to the purposes specified in Sections
2.3C. through 2.3F. of this Agreement) which the Fund declares is a proper
Fund purpose pursuant to the proper instructions described in Section
2.5A. below. The Bank shall have no responsibility to determine whether
such disbursements are for proper Fund purposes.
H. RECORDS. To create, maintain and retain all records, except as
provided herein, relating to its activities and obligations under this
Agreement in such manner as will meet the obligations of the Fund under
the Investment Company Act of 1940, particularly Section 31 thereof and
Rules 31a-1 and 31a-2 thereunder, applicable Federal and State tax laws
and any other law or administrative rules or procedures which may be
applicable to the Fund. All records maintained by the Bank in connection
with the performance of its duties under this Agreement will remain the
property of the Fund, will be surrendered promptly upon the Fund's
request, and, in the event of termination of this Agreement, will be
delivered in accordance with the terms of Section 2.8 below.
I. ACCOUNTS. To keep books and other documents and render
statements, including interim monthly and complete quarterly financial
statements, or copies thereof from time to time as shall be mutually agreed
between the parties to this Agreement.
J. MISCELLANEOUS. At the request of the Fund,to provide information
from the Bank's records as Custodian in connection with the Fund's
preparation of routine reports to holders of shares of the Fund to the
Securities and Exchange Commission, including Forms N-1R and N-1Q, to
State "Blue Sky" authorities and to others, in the auditing of accounts,
and in other matters of like nature.
Section 2.5 INSTRUCTIONS AND INVESTMENT LIMITATIONS.
A. PROPER INSTRUCTIONS. The Bank shall be deemed to have received
proper instructions upon receipt of (1) written instructions signed by a
majority of the Trustees of the Fund or by one or more persons as the Board
of Trustees shall have from time to time authorized to give the particular
class of instructions in question, (2) telephonic instructions confirmed in
writing within 24 hours of such instructions, by persons having proper
authority to do so or (3) telex, telecopy or wire instructions confirmed
within 24 hours of such instructions in a writing signed by persons
authorized to do so. Different persons may be authorized to give
instructions for different purposes. A certified copy of a resolution or
action of the Board of Trustees of the Fund may be received and accepted by
the Bank as conclusive evidence of the authority of any such persons to
act and may be considered as in full force and effect until receipt of
written notice to the contrary. Such instructions may be general or
specific in terms.
B. INVESTMENT LIMITATIONS. In performing its duties generally,
and more particularly in connection with the purchase, sale and exchange of
securities made by or for the Fund, the Bank may take cognizance of the
provisions of the Fund's then current Declaration of Trust, By-Laws and
Prospectus; however, except as otherwise expressly provided herein, it may
assume unless and until notified in writing to the contrary that
instructions purporting to be proper instructions received by it are not in
conflict with or in any way contrary to any provision of the then current
Declaration of Trust, By-Laws and Prospectus of the Fund, or resolutions
or proceedings of the Trustees of the Fund.
Section 2.6 OTHER MATTERS.
A. INDEMNIFICATION. The Bank, as Depository and Custodian, shall
be entitled to receive and act upon advice of counsel (who may be counsel
for the Fund) and shall be without liability for any action reasonably
taken or thing reasonably done pursuant to such advice, provided that such
action is not in violation of applicable Federal or State laws or
regulations, and shall be kept indemnified by the Fund and be without
liability for any action taken or thing done by it in carrying out
the terms and provisions of this Agreement in good faith and without
negligence. The Bank shall be liable to the Fund for any error, omission or
other act of the Bank's Sub-Custodian and agents including acts of
negligence, clerical errors and mechanical failures. In order that the
indemnification provision contained in this Section 2.6A. shall apply,
however, it is understood that if in any case the Fund may be asked to
indemnify or save the Bank harmless, the Fund shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it
is further understood that the Bank will use all reasonable care to
identify and notify the Fund promptly concerning any situation which
presents or appears likely to present the probability of such claim for
indemnification against the Fund. The Fund shall have the option to defend
the Bank against any claim which may be the subject of this
indemnification, and in the event that the Fund so elects it will so notify
the Bank, and thereupon the Fund shall take over complete defense of the
claim, and the Bank shall in such situation initiate no further legal or
other expenses for which it shall seek indemnification under this Section
2.6A. The Bank shall in no case confess any claim or make any compromise
in any case in which the Fund will be asked to indemnify the Bank except
with the Fund's prior written consent.
B. APPOINTMENT OF AGENTS. The Bank, as Custodian, may at any time
or times appoint (and may at any time remove)any other bank, trust company
or reasonable commercial agent as its agent to carry out such of the
provisions of this Agreement as the Bank may from time to time direct,
provided, however, that the appointment of such agent shall not relieve
the Bank of any of its responsibilities under this Agreement. Each agency
relationship shall be established by a written instrument, copies of
which are to be provided promptly to the Fund, which shall contain, INTER
ALIA, the obligation of the agent to segregate and hold assets of the Fund
only for the benefit of the Fund.
C. APPOINTMENT OF SUB-CUSTODIANS. The Bank, as the Custodian, may
from time to time employ one or more Sub-Custodians, provided, however,
that the appointment of such agent shall not relieve the Bank of any of
its responsibilities under this Agreement. Each Sub-Custodian, relationship
shall be established by written instrument, copies of which are to be
provided promptly to the Fund, which shall contain, INTER ALIA, the
obligation of the Sub Custodian to segregate and hold assets of the Fund
only for the benefit of the Fund.
D. RELIANCE ON DOCUMENTS. So long as and to the extent that it has
exercised reasonable care, the Bank, as Depository and Custodian, shall
not be responsible for the title, validity or genuineness of any property or
evidence of title-thereto received by it or delivered by it pursuant to
this Agreement, and shall be protected in acting upon any instructions,
notice, request, consent, certificate or other instrument or paper
reasonably believed by it to be genuine and to have been property executed
in accordance with Section 2.5A. and shall, except as otherwise specifically
provided in this Agreement, be entitled to receive as conclusive proof of
any fact or matter required to be ascertained by it hereunder a
certificate signed by any Trustee or the officer of the Fund or any other
person authorized by the Trustees.
E. ACCESS TO RECORDS. Subject to security requirements of the Bank
applicable to its own employees having access to similar records within
the Bank and such regulations as to the conduct of such monitors as may be
reasonably imposed by the Bank after prior consultation with an officer of
the Fund, the books and records of the Bank pertaining to its actions
under this Agreement shall be open to inspection and audit at reasonable
times by officers of, attorneys for, and auditors employed by, the Fund.
F. VOTING AND OTHER ACTION. Neither the Bank nor any nominee of
the Bank shall vote any of the securities held hereunder by or for the
account of the Fund, except in accordance with the instructions contained
in an officers' certificate. The Bank shall promptly deliver, or cause to
be executed and delivered, to the Fund all notices, proxies and proxy
soliciting materials with relation to such securities, such proxies to be
executed by the registered holder of such securities (if registered
otherwise than in the name of the Fund), but without indicating the manner
in which such proxies are to be voted.
The Bank shall transmit promptly to the Fund all written
information (including, without limitation, pendency of calls and
maturities of securities and expirations of rights in connection therewith)
received by the Bank from issuers of the securities being held for the
Fund. With respect to tender or exchange offers, the Bank shall transmit
promptly to the Fund all written information received by the Bank from
issuers of the securities whose tender or exchange is sought and from the
party (or his agents) making the tender or exchange offer.
G. RECORD-KEEPING. The Bank shall maintain such records as will
enable the Fund to comply with there requirements of all Federal and State
laws and regulations applicable to the Fund with respect to the matters
covered by this Agreement.
Section 2.7 COMPENSATION. The Fund shall pay to the Bank, as
Depository and Custodian, such compensation (including reimbursement of
expenses) as shall be agreed upon in writing among ail of the parties hereto
from time to time; provided, that so long as the Management And Transfer
Agent Agreement between the Fund and Service Corp. shall be in effect,
Service Corp. agrees to pay such compensation.
Section 2.8 the bank and the fund further agree as follows:
A. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT, AND INTERPRETIVE
AND ADDITIONAL PROVISIONS. This Agreement shall become effective as of
the date of its execution, shall continue in full force and effect until
terminated as hereinafter provided, may be amended at anytime by mutual
agreement of all of the parties hereto and may be terminated by any
party hereto by an instrument in writing delivered or mailed, postage
prepaid, to the other parties, such termination to take effect not
sooner than sixty (60) days after the date of such delivery or mailing;
provided, however, that the Fund Service Corp. shall not amend or
terminate this Agreement in contravention of any applicable Federal or
State laws or regulations, or any provision of the Fund's Declaration
of Trust or By-Laws as the same may from time to time be amended, and
further provided, that the Fund may at any time by action of its Board
of Trustees substitute another bank or trust company for the Bank by
giving notice as above to the Bank.
In connection with the operation of this Agreement, the Bank, the
Fund and Service Corp. may agree from time to time on such provisions
interpretive of or in addition to the provisions of this Agreement as
may in their joint opinion be consistent with the general tenor of this
Agreement, any such interpretive or additional provisions - to be signed
by all parties and annexed hereto, provided that no such interpretive or
additional provisions shall contravene any applicable Federal or State
laws or regulations, or any provision of the Fund's Declaration of Trust
or By-Laws as the same may from time to time be amended. No interpretive
or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
B. SUCCESSOR CUSTODIAN. Upon termination hereof Service Corp. or
the Fund, as applicable, shall pay to the Bank such compensation
(including reimbursement of expenses) as may be due as of the date of
such termination.
If a successor custodian is appointed by the Board of Trustees of
the Fund in accordance with its Declaration of Trust, the Bank shall
upon termination, deliver to such successor custodian at the office of
the Bank, duly endorsed and in form for transfer, all securities then
held hereunder and all funds or other properties of the Fund deposited
with or held by it hereunder.
If no such successor custodian is appointed, the Bank shall, in
like manner, at its office, upon receipt of a certified copy of a
resolution of the shareholders pursuant to the Fund's Declaration of
Trust, deliver such securities, funds and other properties in accordance
with such vote.
In the event that no written order designating a successor
custodian or certified copy of a resolution of the shareholders shall
have been delivered to the Bank on or before the date when such
termination shall become effective, then the Bank shall have the right
to deliver to a bank or trust company doing business in Cincinnati, Ohio
or Dayton, Ohio of its own selection, having an aggregate capital,
surplus and undivided profits, as shown by its last published report of
not less than $25,000,000, all securities, funds and other properties
held by the Bank and all instruments held by the Bank and all
instruments held by it relative thereto and all other property held by
it under this Agreement. Thereafter, such bank or trust company shall be
the successor of the Bank under this Agreement.
In the event that securities, funds, and other properties remain in
the possession of the Bank after date of termination hereof owing to
failure of the Fund to procure the certified copy above referred to, or
of the Board of Trustees to appoint a successor custodian, the Bank
shall be entitled to fair compensation for its services during such
period and the provisions of this Agreement relating to the duties and
obligations of the Bank shall remain in full force and effect.
Section 2.9 The Bank shall cooperate with the Fund's independent
public accountants in connection with the annual and other audits of the
books and records of the Fund and shall take all necessary action within
reasonable possibility for the Fund to obtain from year to year unqualified
opinions from the Fund's independent public accountants with respect to the
Bank's activities hereunder in connection with the preparation of the Fund's
Form N-1R annual reports to the Securities and Exchange Commission and with
respect to any other requirements of such Commission.
Section 2.10 The Fund shall not circulate any printed matter which
contains any reference to the Bank without the prior approval of the Bank,
excepting solely such printed matter as merely identifies the Bank as
Custodian. The Fund will submit printed matter requiring approval to the Bank
in draft form, allowing sufficient time for review by the Bank and its
counsel prior to any deadline for printing.
Section 2.11 This instrument is executed and delivered in the State of
Ohio and shall be subject to and be construed according to the laws of said
State.
Section 2.12 Notices and other writings delivered or mailed postage
prepaid to the Fund at Governours Square Office Center, 1416 Miamisburg-
Centerville Road, Dayton, Ohio 45459, or to the Bank at First National Bank
Center, 425 Walnut Street, Cincinnati, Ohio 45202, or to Service Corp. at
1416 MiamisburgCenterville Road, Dayton, Ohio 45459, or to such other address
as the Fund, Bank or Service Corp. may hereafter specify, shall be deemed to
have been properly delivered or given hereunder to the respective addressee.
Section 2.13 It is understood and is expressly stipulated that neither
the holders of shares in the Fund nor the Trustees of the Fund shall be
personally liable hereunder.
Section 2.14 This Agreement shall be binding on and shall inure to the
benefit of the Fund, the Bank and Service Corp. and their respective
successors.
Section 2.15 This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original.
Section 2.16 The obligations of the Fund under this Custodian Agreement,
as amended, shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents or employees of the Fund, personally, but shall
bind only the assets and property of the Fund, as provided in the Declaration
of Trust of the Fund and any amendments thereto, which are on file with the
Secretary of State of ohio. The execution and delivery of this Agreement have
been authorized by the Trustees and signed by the President of the Fund,
acting as such, and neither the authorization by the Trustees nor the
execution and delivery by the President of the Fund shall be deemed to have
been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the assets and property of the Fund as
provided in its Declaration of Trust and any amendments thereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by a duly authorized officer as
of the day and year first above written.
ATTEST: PDC&J PERFORMANCE FUND
By /S/ JAMES M. JOHNSON By /S/ LESLIE O. PARKER III
----------------------- -------------------------
James M. Johnson Leslie O. Parker III
Secretary President
ATTEST: THE FIRST NATIONAL BANK OF CINCINNATI
By /S/ NANCY Z. KELLY By /S/ EUGENE W. JACOBS
----------------------- -------------------------
Nancy Z. Kelly Vice President and
Asst. Trust Officer Trust Officer
ATTEST: PDC&J SERVICE CORP.
By /S/ JAMES M. JOHNSON By /S/ LESLIE O. PARKER III
----------------------- -------------------------
James M. Johnson Leslie O. Parker III
Secretary President
Ex-99.B11
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Post-Effective Amendment No. 16 to
Registration Statement No. 2-87490 of our report dated January
31, 1998, relating to PC&J Performance Fund, incorporated by
reference in the Statement of Additional Information, which is a
part of such Registration Statement.
/s/ Deloitte & Touche, LLP
Dayton, Ohio
March 11, 1998
Ex99.B13
INVESTMENT REPRESENTATION
The undersigned, as initial investor in shares of beneficial
interest of PDC&J Performance Fund, an Ohio business trust (the
"Fund"), hereby represents and warrants to the Fund that:
a) I have on this date paid the Fund, in cash, $100,000 and
have become the record and beneficial owner of 10,000 shares
of beneficial interest (the "Shares") of the Fund;
b) My purchase of the Shares has been made for investment purposes
and not for the resale or other distribution thereof and not in
anticipation of the redemption thereof;
c) The Shares shall not be resold or distributed to any third party
in the absence of an exemption from registration of such resale
or distribution from the registration provisions of the Securities
Act of 1933;
d) Without the written approval of a majority of the outstanding
voting securities of the Fund the undersigned shall not submit to
the Fund a written request to redeem all or any part of the Shares,
nor shall there be any such redemption, if as a direct and
proximate result thereof (i) the total assets of the Fund shall be
reduced below $100,000, or (ii) the Fund shall become disqualified
as a regulated investment company under Subchapter M of the Internal
Revenue Code of 1954; and
e) The provisions hereof shall be binding on any of my executors,
administrators, successors and assigns and shall bind any other
successor or owner of the Shares.
Dated: December 22, 1983 /S/ JAMES M. JOHNSON
-----------------------
James M. Johnson
Ex99.B15
DISTRIBUTION EXPENSE PLAN
SECTION 1. PDC&J Performance Fund, an Ohio business trust (the
"Fund"), pursuant to Section 12(b) of the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations promulgated
thereunder as the same may be from time to time issued or amended, and
specifically pursuant to Rule 12b-1 (the "Rule") promulgated under the 1940
Act, may act as the distributor of securities of which it is the issuer in
accordance with the terms of this Distribution Expense Plan (the "Plan").
SECTION 2. Pursuant to an Investment Advisory Agreement between the
Fund and Parker, Dillon, Carlson & Johnson, Inc., an Ohio corporation (the
"Adviser"), and a Management And Transfer Agent Agreement between the Fund
and PDC&J Service Corp., an Ohio corporation ("Service Corp."), the Adviser
and Service Corp. may incur distribution expenses relating to the sale of
shares of the Fund, including but not limited to the expenses of the
respective employees of Adviser or Service Corp. who are officers or trustees
of the Fund, and expenses incurred in connection with preparation, printing
and mailing registration statements and prospectuses and in connection with
various securities law registration and filing fees. To the extent that any
fees paid by the Fund pursuant to the Investment Advisory Agreement and
Management And Transfer Agent Agreement might be considered to be indirectly
financing activity which is "primarily intended to result in the sale of
shares" issued by the Fund within the meaning of the Rule, the payment of
such fees is authorized under this Plan.
SECTION 3. Pursuant to the Investment Advisory Agreement between the
Fund and Adviser, either Adviser or Service Corp. will pay the compensation
and expenses of any persons rendering any services to the Fund who are
officers, directors, shareholders or employees of Adviser and will make
available, without expense to the Fund, the services of such of Adviser's
employees as may duly be elected officers or trustees of the Fund,
subject to their individual consent to serve and to any limitations imposed
by law.
Pursuant to the Management And Transfer Agent Agreement between the Fund
and Service Corp., either Service Corp. or Adviser will pay the compensation
and expenses of any persons rendering any services to the Fund who are
officers, directors, shareholders or employees of Service Corp. and will make
available, without expense to the Fund, the services of such of Service
Corp.'s employees as may duly be elected officers or trustees of the Fund,
subject to their individual consent to serve and to any limitations imposed
by law.
The Fund will be responsible for the payment of all interest, taxes,
brokerage and extraordinary or non-recurring expenses, including expenses of
any litigation to which the Fund may be a party and indemnification of the
Fund's officers, directors and shareholders with respect thereto, and of fees
payable under the Investment Advisory Agreement and Management And Transfer
Agent Agreement.
During the term of the Management And Transfer Agent Agreement all other
expenses incurred in the administration of the Fund shall be borne by Service
Corp. Such other expenses shall include, but shall not be limited to, the
organizational costs of the Fund, costs of preparing, printing and mailing
registration statements, prospectuses, proxy statements, periodic reports and
other documents furnished to shareholders and regulatory agencies,
registration, filing and similar fees, legal, auditing and accounting
expenses, fees of the custodian, expenses of shareholders' and Trustees'
meetings, any fees paid to Trustees who are not interested persons of the
investment adviser and any membership fees.
SECTION 4. While this Plan is in effect, the selection and nomination
of those Trustees who are not "interested persons" of the Fund shall be
committed to the discretion of the disinterested Trustees then in office.
SECTION 5. While this Plan is in effect, any person authorized to
direct the disposition of monies paid or payable by the Fund pursuant to this
Plan or any related agreement shall furnish at least quarterly to the Board
of Trustees of the Fund, and the Trustees shall review, a written report of
the amounts so expended during the last calendar quarter and the purposes for
which such amounts were expended.
SECTION 6. This Plan shall not take effect until it has been approved
by a majority of the Board of Trustees of the Fund and by a majority of the
Trustees who are not "interested persons" of the Fund and who have no direct
or indirect financial interest in the operation of the Plan or any agreements
related to the Plan "Independent Trustees"), by votes cast in person at a
meeting called for the purpose of voting on the Plan, and by a vote of a
majority of the outstanding voting securities of the Fund. This Plan shall
continue in effect for so long as such continuance is specifically approved
at least annually by a majority of the Board of Trustees and a majority of
the Independent Trustees, by votes cast in person at a meeting called for the
purpose of voting on such continuance. This Plan may be terminated at any
time by a vote of a majority of the Independent Trustees or by a vote of a
majority of the outstanding voting securities of the Fund. This Plan may not
be amended materially to increase the amount of distribution expenses without
the approval of a majority of the outstanding voting securities of the Fund,
and all material amendments to the Plan must be approved by a majority of the
Board of Trustees and a majority of the Independent Trustees, by votes cast
in person at a meeting called for the purpose of voting on such amendment.
SECTION 7. All agreements with any person relating to implementation
of this Plan shall be in writing, and any agreement related to this Plan
shall provide (a) that such agreement may be terminated at any time without
payment of any penalty, by a vote of a majority of the Independent Trustees
or by a vote of a majority of the outstanding voting securities of the Fund,
on not more than sixty days' notice to any other party to the agreement, and
(b) that such agreement shall terminate automatically in the event of its
assignment.
SECTION 8. The adoption of this Plan shall not constitute any
admission that any payments made by the Fund and authorized by the Plan
constitute distribution expenses within the meaning of the Rule, or that any
payments of distribution expenses by Adviser or Service Corp. would
constitute the indirect payment of distribution expenses by the Fund.
SECTION 9. As used in this Plan, the terms "assignment", "interested
person" and "vote of a majority of the outstanding voting securities" shall
have the respective meanings specified in the 1940 Act and the rules and
regulations thereunder, subject to such exemptions as may be granted by the
Securities and Exchange Commission.
Approved:
Board of Trustees - January 2, 1985
Shareholders - 1985
Ex99.POA1
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS:
WHEREAS, PC&J PERFORMANCE FUND, a business trust organized under the
laws of the State of Ohio (hereinafter referred to as the "Trust"),
periodically files amendments to its Registration Statement with the
Securities and Exchange Commission under the provisions of the Securities Act
of 1933 and the Investment Company Act of 1940, as amended; and
NOW, THEREFORE, the Trust hereby constitutes and appoints JAMES M.
JOHNSON and KATHLEEN A. CARLSON, and each of them, its attorneys for it and
in its name, place and stead, to execute and file any Amendment or Amendments
to the Trust's Registration Statement5, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as it might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the Trust has caused its name to be subscribed
hereto by the President this 3rd day of December, 1997.
ATTEST: PC&J PERFORMANCE FUND
/s/ James M. Johnson /s/ Leslie O. Parker III
- ---------------------------- --------------------------------
JAMES M. JOHNSON, Secretary LESLIE O. PARKER III, President
STATE OF OHIO )
) ss:
COUNTY OF MONTGOMERY )
Before me, a Notary Public, in and for said county and state, personally
appeared LESLIE O. PARKER, III, President and JAMES M. JOHNSON, Secretary,
who represented that they are duly authorized in the premises, and who are
known to me to be the persons described in and who executed the foregoing
instrument, and they duly acknowledged to me that they executed and delivered
the same for the purposes therein expressed.
WITNESS my hand and official seal this 3rd day of December, 1997.
/s/ Nancy Grile
-----------------------
[SEAL] Notary Public
NANCY S. GRILE
Notary Public, State of Ohio
My Commission Expires Apr. 1, 1998
<PAGE>
CERTIFICATE
The undersigned, Secretary of PC&J PERFORMANCE FUND, hereby certifies
that the following resolution was duly adopted by a majority of the Board of
Trustees at the meeting held on December 3, 1997, and is in full force and
effect:
"WHEREAS, PC&J PERFORMANCE FUND, a business trust
organized under the laws of the State of Ohio (hereinafter
referred to as the "Trust"), periodically files amendments to
its Registration Statement with the Securities and Exchange
Commission under the provisions of the Securities Act of 1933
and the Investment Company Act of 1940, as amended; and
NOW, THEREFORE, the Trust hereby constitutes and appoints
JAMES M. JOHNSON and KATHLEEN A. CARLSON, and each of them,
its attorneys for it and in its name, place and stead, to
execute and file any Amendment or Amendments to the Trust's
Registration Statement, hereby giving and granting to said
attorneys full power and authority to do and perform all and
every act and thing whatsoever requisite and necessary to be
done in and about the premises as fully to all intents and
purposes as it might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by
virtue hereof."
Dated: December 3, 1997 /s/ James M. Johnson
-----------------------------
JAMES M. JOHNSON, Secretary
PC&J Performance Fund
Ex99.POA2
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS:
WHEREAS, PC&J PERFORMANCE FUND, a business trust organized under the
laws of the State of Ohio (hereinafter referred to as the "Trust"),
periodically files amendments to its Registration Statement with the
Securities and Exchange Commission under the provisions of the Securities Act
of 1933 and the Investment Company Act of 1940, as amended5; and
WHEREAS, the undersigned is a Trustee and the President and Chief
Executive Officer of the Trust;
NOW, THEREFORE, the undersigned hereby constitutes and appoints JAMES M.
JOHNSON and KATHLEEN A. CARLSON, and each of them, his attorneys for him and
in his name, place and stead, and in his office and capacity in the Trust, to
execute and file any Amendment or Amendments to the Trust's Registration
Statement5, hereby giving and granting to said attorneys full power and
authority to do and perform all and every act and thing whatsoever requisite
and necessary to be done in and about the premises as fully to all intents
and purposes as it might or could do if personally present at the doing
thereof, hereby ratifying and confirming all that said attorneys may or shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the Trust has caused its name to be subscribed
hereto by the President this 3rd day of December, 1997.
/s/ Leslie O. Parker III
----------------------------------------
LESLIE O. PARKER III, Trustee, President
And Chief Executive Officer
STATE OF OHIO )
) ss:
COUNTY OF MONTGOMERY )
Before me, a Notary Public, in and for said county and state, personally
appeared LESLIE O. PARKER, III, known to me to be the persons described in
and who executed the foregoing instrument, and who acknowledged to me that he
executed and delivered the same for the purposes therein expressed.
WITNESS my hand and official seal this 3rd day of December, 1997.
/s/ Nancy Grile
-----------------------
[SEAL] Notary Public
NANCY S. GRILE
Notary Public, State of Ohio
My Commission Expires Apr. 1, 1998
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS:
WHEREAS, PC&J PERFORMANCE FUND, a business trust organized under the
laws of the State of Ohio (hereinafter referred to as the "Trust"),
periodically files amendments to its Registration Statement with the
Securities and Exchange Commission under the provisions of the Securities Act
of 1933 and the Investment Company Act of 1940, as amended; and
WHEREAS, the undersigned is a Trustee, Treasurer and Principal Financial
and Accounting Officer of the Trust;
NOW, THEREFORE, the undersigned hereby constitutes and appoints JAMES M.
JOHNSON, her attorneys for her and in her name, place and stead, and in her
office and capacity in the Trust, to execute and file any Amendment or
Amendments to the Trust's Registration Statement, hereby giving and granting
to said attorneys full power and authority to do and perform all and every
act and thing whatsoever requisite and necessary to be done in and about the
premises as fully to all intents and purposes as it might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the Trust has caused its name to be subscribed
hereto by the President this 3rd day of December, 1997.
/s/ Kathleen A. Carlson
----------------------------------------
KATHLEEN A. CARLSON, Trustee, Treasurer
and Principal Financial and Accounting Officer
STATE OF OHIO )
) ss:
COUNTY OF MONTGOMERY )
Before me, a Notary Public, in and for said county and state, personally
appeared KATHLEEN A. CARLSON, known to me to be the persons described in and
who executed the foregoing instrument, and who acknowledged to me that he
executed and delivered the same for the purposes therein expressed.
WITNESS my hand and official seal this 3rd day of December, 1997.
/s/ Nancy Grile
-----------------------
[SEAL] Notary Public
NANCY S. GRILE
Notary Public, State of Ohio
My Commission Expires Apr. 1, 1998
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS:
WHEREAS, PC&J PERFORMANCE FUND, a business trust organized under the
laws of the State of Ohio (hereinafter referred to as the "Trust"),
periodically files amendments to its Registration Statement with the
Securities and Exchange Commission under the provisions of the Securities Act
of 1933 and the Investment Company Act of 1940, as amended; and
WHEREAS, the undersigned is a Trustee and Secretary of the Trust;
NOW, THEREFORE, the undersigned hereby constitutes and appoints KATHLEEN
A. CARLSON , his attorney for him and in his name, place and stead, and in
his office and capacity in the Trust, to execute and file any Amendment or
Amendments to the Trust's Registration Statement, hereby giving and granting
to said attorneys full power and authority to do and perform all and every
act and thing whatsoever requisite and necessary to be done in and about the
premises as fully to all intents and purposes as it might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the Trust has caused its name to be subscribed
hereto by the President this 3rd day of December, 1997.
/s/ James M. Johnson
----------------------------------------
JAMES M. JOHNSON, Trustee and Secretary
STATE OF OHIO )
) ss:
COUNTY OF MONTGOMERY )
Before me, a Notary Public, in and for said county and state, personally
appeared JAMES M. JOHNSON, known to me to be the persons described in and who
executed the foregoing instrument, and who acknowledged to me that he
executed and delivered the same for the purposes therein expressed.
WITNESS my hand and official seal this 3rd day of December, 1997.
/s/ Nancy Grile
-----------------------
[SEAL] Notary Public
NANCY S. GRILE
Notary Public, State of Ohio
My Commission Expires Apr. 1, 1998
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS:
WHEREAS, PC&J PERFORMANCE FUND, a business trust organized under the
laws of the State of Ohio (hereinafter referred to as the "Trust"),
periodically files amendments to its Registration Statement with the
Securities and Exchange Commission under the provisions of the Securities Act
of 1933 and the Investment Company Act of 1940, as amended; and
WHEREAS, the undersigned is a Trustee of the Trust;
NOW, THEREFORE, the undersigned hereby constitutes and appoints JAMES M.
JOHNSON and KATHLEEN A. CARLSON, and each of them, its attorneys for it and
in its name, place and stead, and in his office and capacity in the Trust, to
execute and file any Amendment or Amendments to the Trust's Registration
Statement, hereby giving and granting to said attorneys full power and
authority to do and perform all and every act and thing whatsoever requisite
and necessary to be done in and about the premises as fully to all intents
and purposes as it might or could do if personally present at the doing
thereof, hereby ratifying and confirming all that said attorneys may or shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the Trust has caused its name to be subscribed
hereto by the President this 3rd day of December, 1997.
/s/ Donald N. Lorenz
----------------------------------------
DONALD N. LORENZ, Trustee
STATE OF OHIO )
) ss:
COUNTY OF MONTGOMERY )
Before me, a Notary Public, in and for said county and state, personally
appeared DONALD N. LORENZ, known to me to be the persons described in and who
executed the foregoing instrument, and who acknowledged to me that he
executed and delivered the same for the purposes therein expressed.
WITNESS my hand and official seal this 3rd day of December, 1997.
/s/ Nancy Grile
-----------------------
[SEAL] Notary Public
NANCY S. GRILE
Notary Public, State of Ohio
My Commission Expires Apr. 1, 1998
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS:
WHEREAS, PC&J PERFORMANCE FUND, a business trust organized under the
laws of the State of Ohio (hereinafter referred to as the "Trust"),
periodically files amendments to its Registration Statement with the
Securities and Exchange Commission under the provisions of the Securities Act
of 1933 and the Investment Company Act of 1940, as amended; and
WHEREAS, the undersigned is a Trustee of the Trust;
NOW, THEREFORE, the undersigned hereby constitutes and appoints JAMES M.
JOHNSON and KATHLEEN A. CARLSON, and each of them, its attorneys for it and
in its name, place and stead, and in his office and capacity in the Trust, to
execute and file any Amendment or Amendments to the Trust's Registration
Statement, hereby giving and granting to said attorneys full power and
authority to do and perform all and every act and thing whatsoever requisite
and necessary to be done in and about the premises as fully to all intents
and purposes as it might or could do if personally present at the doing
thereof, hereby ratifying and confirming all that said attorneys may or shall
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the Trust has caused its name to be subscribed
hereto by the President this 3rd day of December, 1997.
/s/ Thomas H. Rodgers
----------------------------------------
THOMAS H. RODGERS, Trustee
STATE OF OHIO )
) ss:
COUNTY OF MONTGOMERY )
Before me, a Notary Public, in and for said county and state, personally
appeared THOMAS M. RODGERS, known to me to be the persons described in and
who executed the foregoing instrument, and who acknowledged to me that he
executed and delivered the same for the purposes therein expressed.
WITNESS my hand and official seal this 3rd day of December, 1997.
/s/ Nancy Grile
-----------------------
[SEAL] Notary Public
NANCY S. GRILE
Notary Public, State of Ohio
My Commission Expires Apr. 1, 1998
<TABLE> <S> <C>
<ARTICLE> 6
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
THE FUND'S FINANCIAL STATEMENTS AND FINANCIAL HIGHLIGHTS FOR THE
TWELVE MONTHS ENDED DECEMBER 31, 1997.
</LEGEND>
<SERIES>
<NUMBER> 01
<NAME> PC&J PERFORMANCE FUND
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<INVESTMENTS-AT-COST> 22,489,088
<INVESTMENTS-AT-VALUE> 37,462,573
<RECEIVABLES> 36,894
<ASSETS-OTHER> 0
<OTHER-ITEMS-ASSETS> 0
<TOTAL-ASSETS> 37,499,467
<PAYABLE-FOR-SECURITIES> 0
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 46,925
<TOTAL-LIABILITIES> 46,925
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 22,479,057
<SHARES-COMMON-STOCK> 1,386,528
<SHARES-COMMON-PRIOR> 1,356,577
<ACCUMULATED-NII-CURRENT> (39,574)
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 0
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 14,973,485
<NET-ASSETS> 37,452,542
<DIVIDEND-INCOME> 329,522
<INTEREST-INCOME> 119,573
<OTHER-INCOME> 0
<EXPENSES-NET> 488,669
<NET-INVESTMENT-INCOME> (39,574)
<REALIZED-GAINS-CURRENT> 2,108,810
<APPREC-INCREASE-CURRENT> 7,656,945
<NET-CHANGE-FROM-OPS> 9,726,181
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 2,108,810
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 154,500
<NUMBER-OF-SHARES-REDEEMED> 202,619
<SHARES-REINVESTED> 78,070
<NET-CHANGE-IN-ASSETS> 8,814,550
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 325,779
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 0
<AVERAGE-NET-ASSETS> 32,563,077
<PER-SHARE-NAV-BEGIN> 21.11
<PER-SHARE-NII> (0.03)
<PER-SHARE-GAIN-APPREC> 7.54
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0.61
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 27.01
<EXPENSE-RATIO> 1.50
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
